Maguire v Pankiewicz
[2009] SASC 169
•12 June 2009
SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Civil)
MAGUIRE v PANKIEWICZ
[2009] SASC 169
Judgment of The Honourable Justice Gray
12 June 2009
MAGISTRATES - JURISDICTION AND PROCEDURE GENERALLY - PROCEDURE - INFORMATION AND COMPLAINT - FORMALITIES
MAGISTRATES - JURISDICTION AND PROCEDURE GENERALLY - PROCEDURE - INFORMATION AND COMPLAINT - RELEVANT PRINCIPLES - COMMENCEMENT OF PROSECUTION
Appeal against Magistrate's order dismissing complaint - whether Magistrate erred in ruling complaint against respondent, a former legal practitioner, invalid - whether ‘proceeding’ commences on signing of complaint or on issue of court proceedings - Magistrate's obligation to provide reasons.
Appeal allowed - orders of Magistrate set aside - complaint remitted to Magistrate for further hearing - 'proceeding' commences on filing of complaint in court.
Leglal Practitioners Act 1981 (SA) s 21 and s 96; Summary Procedure Act 1921 (SA) s 49, s 51, s 52, s 54, s 57 and s 58; Magistrates Court (Criminal) Rules 1992 r 12; Magistrates Court (Civil) Rules 1992 r 103, referred to.
Flexible Manufacturing Systems Pty Ltd v Alter (2004) 182 FLR 15; Palgo Holdings Pty Ltd v Gowans (2005) 221 CLR 249; Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355; Silk Bros Pty Ltd v State Electricity Commission of Victoria (1943) 67 CLR 1; Miller v Police (1997) 67 SASR 484; Palmer v Clarke (1989) 19 NSWLR 15; Fletcher Construction Australia Ltd v Lines MacFarlane & Marshall Pty Ltd (2001) 4 VR 28; Director of Public Prosecutions (Tas) v Cook (2006) 166 A Crim R 234, considered.
MAGUIRE v PANKIEWICZ
[2009] SASC 169Magistrates Appeal
GRAY J:
This is an appeal against an order of the Chief Magistrate dismissing a complaint alleging that Peter Alvin Pankiewicz practised the profession of the law while not being a legal practitioner.
The Legal Practitioners Act 1981 (SA) regulates the practice of the law in South Australia and those who may be entitled to act as legal practitioners. The Act, and in particular section 21, makes it an offence to practise the profession of the law without being a legal practitioner. The offence is summary in nature and its complaint is to be made in a summary court pursuant to the provisions of the Summary Procedure Act 1921 (SA). The Legal Practitioners Act provides that such a proceeding may not be instituted without the authority of the Attorney-General. This appeal raises for determination the meaning of the phrase “the institution of proceedings” and the relationship between and construction of the relevant provisions of the two statutes.
The Magistrates Court Proceedings
The defendant and respondent, Peter Alvin Pankiewicz, was charged on complaint by the complainant and appellant, Jerome Maguire, the Chief Executive Officer of the Attorney-General’s Department,[1] with an offence pursuant to section 21(1) of the Legal Practitioners Act.[2]
[1] Section 57A(11) of the Summary Procedure Act 1921 (SA) provides:
(11) In this section—
"public authority" means—
(a) any instrumentality or agency of the Crown in right of the State or the Commonwealth; or
(b) the Corporate Affairs Commission; or
(c) a municipal or district council; or
(d) any county board or local board of health; or
(e) any body declared by proclamation to be a public authority;
Rule 12 of the Magistrates Court (Criminal) Rules 1992 provides:
A... ‘public officer’…may make a complaint in writing on signing and dating it without appearing before a witness.
[2] Section 21(1) of the Legal Practitioners Act 1981 (SA) provides:
(1)A person must not practise the profession of the law, or hold himself or herself out, or permit another to hold him or her out, as being entitled to practise the profession of the law unless—
(a) in the case of a natural person, the person—
(i) is a local legal practitioner; or
(ii) is an interstate legal practitioner; or
(b)in the case of a company, it holds a practising certificate issued and in force under this Act.
The complaint alleged that the defendant practised the profession of the law while not being a legal practitioner. The offence details were as follows:
Between 30 October 2006 and 12 December 2006 practiced [sic] the profession of the law whilst not being a legal practitioner.
Contrary to s21(1) of the Legal Practitioners Act 1981.
This is a summary offence.
Particulars
1.The defendant represented Alex Lysandrou in proceedings in the Family Court of Australia, namely ‘No ADF 335 of 2005, Alex Lysandrou and Dianne Michelle Lysandrou’ (the proceedings) by providing advice to Mr Alex Lysandrou in relation to the conduct of the proceedings.
2.The defendant provided advice to Mr Lysandrou in relation to the preparation of court documents.
3. The defendant provided the advice to Mr Lysandrou for fee or reward.
4.The defendant was struck off the Roll of Legal Practitioners by order of the Supreme Court of South Australia made on 10 September 1990.
Mr Maguire signed the complaint on 7 May 2008. On 14 May 2008, the Attorney-General for the State of South Australia, as required by section 96(2) of the Legal Practitioners Act, provided written authorisation for the institution of prosecution proceedings pursuant to section 21 of that Act. Section 96(2) provides:
Proceedings for an offence against this Act must not be brought unless the Attorney-General has, by instrument in writing, authorised the institution of the proceedings.
On 19 May 2008, the complaint was filed at the Adelaide Magistrates Court and a summons was issued. On or about 30 October 2008 the statutory limitation period for the commencement of a summary prosecution of the subject charge expired.[3]
[3] Summary Procedure Act 1921 (SA) s 52(1)(b).
On 3 February 2009, the matter proceeded to trial in the Adelaide Magistrates Court before the Chief Magistrate. Toward the end of the prosecution opening, counsel for the defendant questioned the validity of the complaint and challenged the jurisdiction of the Court to hear and determine the complaint.
On 24 February 2009, the Chief Magistrate ruled on the application in favour of the defendant. The Chief Magistrate reasoned that the prosecution proceedings commenced when the complaint was signed. This act represented the institution of the proceedings. As the Attorney-General had not authorised the institution of the proceedings prior to the signing, the proceedings had not been properly instituted in accordance with the requirement of section 96(2) of the Legal Practitioners Act 1981. The Chief Magistrate made an order dismissing the complaint, however, no reasons were delivered.
The Court’s record provides that the Chief Magistrate “reserves the right to produce a written ruling”. The Court’s record also indicates that counsel for the complainant requested that “a ruling be produced and published”. Shortly before the hearing of the appeal, the Chief Magistrate published reasons bearing date 3 February 2009.
In the course of the reasons, the trial procedure was outlined as follows:
Before the trial began and before the accused had entered a plea, the defendant raised the issue that the proceedings were not properly authorised as they are required to be under the Act by the Attorney-General.
Argument on this issue proceeded before me and written submissions were also submitted by both the complainant and the defendant.
On 24 February 2009, I indicated my finding that the proceedings were not properly authorised. I now publish my reasons in relation to that finding.
The Chief Magistrate set out the terms of the complaint and section 96(2) of the Legal Practitioners Act and then addressed the authorisation of the Attorney-General:
It is not in dispute that the Attorney General signed a document entitled ‘Authorisation pursuant to s 96 of the Legal Practitioners Act 1981’, which was tendered by consent as Exhibit P3. This document states:
I, Michael Atkinson, Attorney General in the State of South Australia, hereby authorised the institution of prosecution proceedings pursuant to section 21 of the Legal Practitoners Act 1981 in relation to Mr Peter Pankiewicz.
The document purports to follow the words of s 21 except that the word ‘prosecution’ is addded. Nothing turns on this difference. The document is apparently signed by the Attorney General and is dated 14 May 2008. There is no dispute that it is an apparently genuine document for the purposes of s 96(3) of the Act.
It is not in dispute that the complaint was filed on 19 May 2008 and subsequently served on the defendant on 21 May 2008 requiring his attendance in court on 16 June 2008.
and then noted:
From the above it is apparent that the complaint was signed on 7 May 2008, the Attorney-Generals authorisation signed on 14 May 2008 and the complaint filed in court on 19 May 2008.
The Chief Magistrate recorded a summary of the parties’ submissions:
The complainant submits that the authorisation was in place before the complaint was filed and that the date of filing in court is to be taken as the institution of the proceedings.
The defendant submits that the date the complaint was signed is the date the proceedings commenced and, as such, the Attorney General’s authorisation required by the Act, was in place prior to the bringing of the proceedings and that, therefore, the proceedings are not properly authorised.
and then concluded:
The requirement for the Attorney General’s authorisation, in the present case, is not limited to the filing of the proceedings, but to the bringing of the proceedings at all, including to the first stage being the making of the complaint. This interpretation is consistent with the views of the High Court in McDonnell v Smith [1918] 24 CLR 409 where it was held that consent must be obtained before ‘the prosecution is initiated, that is, before the information [sic] is laid’. In this context, I was referred also Walsh v Doherty [1907] 5 CLR 196.
Having considered the oral and written submissions which have been put to me and the cases to which I have been referred including but not limited to those already mentioned, I indicate that I am satisfied that the Attorney General’s consent was required before the proceedings were instituted, i.e. before the charge was made (and laid) in the form of a complaint and signed.
It follows that I therefore uphold the defendant’s objection and being satisfied that the complaint was not properly authorised, I dismiss the complaint.
The Appeal
On appeal it was submitted that there was no proper basis for the dismissal of the complaint. It was also said that the Chief Magistrate erred in not publishing reasons. It was argued that the Chief Magistrate did not have a discretion as to whether reasons were to be published. The absence of reasons left the complainant in the position of having to prepare grounds of appeal and an outline of argument without the advantage of any reasons from the Chief Magistrate. Counsel for the complainant contended that the reasons were published too late and beyond power, and, as such, should be ignored.
During the course of the appeal I expressed the tentative view that, although late, the Chief Magistrate’s reasons could and should be considered on the appeal. I have had regard to the Chief Magistrate’s reasons in my consideration of the appeal. My reasons for doing so are addressed later in these reasons.
The Legislative Provisions
The appeal raises for consideration the construction of section 96(2) of the Legal Practitioners Act, and, in particular, the meaning of the phrase “the institution of proceedings”. As earlier observed, section 96(2) provides:
Proceedings for an offence against this Act must not be brought unless the Attorney-General has, by instrument in writing, authorised the institution of the proceedings.
The proper interpretation of Part 4, Division 2 of the Summary Procedure Act also arises for consideration. It is convenient to first address this Division, to which substantial amendments were made in 1991.
Part 4 Division 2 of the Summary Procedure Act includes the following provisions:
49 Complaint
(1)Where a person is suspected of having committed a summary offence, a complaint may be made in accordance with the rules charging that person with the offence.
(2)A complaint may be made by the complainant personally or by a legal practitioner or other person duly authorised to make the complaint on the complainant's behalf.
(3)If the complaint is made orally, it must be reduced to writing.
(4) A complaint need not be made on oath unless—
(a) some Special Act requires the complaint to be made on oath; or
(b) a warrant for the arrest of the defendant is to be issued.
(5) A complaint must be filed in the Court as soon as practicable after it is made.
51 Joinder and separation of charges
(1)A person may be charged with any number of summary offences in the same complaint (either cumulatively or in the alternative) if the charges arise from the same set of circumstances or from a series of circumstances of the same or a similar character.
(2) The Court may direct that—
(a) charges contained in a single complaint be dealt with in separate proceedings; or
(b) charges contained in separate complaints be dealt with together in the same proceedings.
52 Limitation on time in which proceedings may be commenced
(1)Subject to any provision of an Act to the contrary, if a person is to be prosecuted for a summary offence, the proceedings must be commenced within the following time limits:
(a) in the case of an expiable offence—
(i)if an expiation notice was given to the person—the proceedings must be commenced within 6 months of the expiry of the expiation period specified in the notice;
(ii)if an expiation notice was not given to the person—the proceedings must be commenced within 6 months of the date on which the offence is alleged to have been committed;
(b) in the case of an offence that is not expiable—the proceedings must be commenced within 2 years of the date on which the offence is alleged to have been committed.
(2)For the purposes of subsection (1), an expiation notice is to be taken into account despite its subsequent withdrawal except if the notice of withdrawal specifies that it is withdrawn because—
(a) the issuing authority has received a statutory declaration or other document sent to the authority by the alleged offender in accordance with a notice required by law to accompany the expiation notice or expiation reminder notice; or
(b) it has become apparent that the alleged offender did not receive the notice until after the expiation period, or has never received it, as a result of error on the part of the authority or failure of the postal system,
(in which case the withdrawn expiation notice is to be disregarded).
54 Allegations and descriptions in complaints and proceedings
(1)Whenever in any complaint, or the proceedings thereon, it is necessary to state the ownership of any property belonging to, or in the possession of, partners, joint tenants, parceners, or tenants in common, it shall be sufficient to name one of such persons, and to state the property to belong to the person so named and another or others (as the case may be).
(2)Whenever in any complaint or the proceedings thereon it is necessary to mention for any purpose whatsoever any partners, joint tenants, parceners, or tenants in common, it shall be sufficient to describe them in the same manner.
(3)Whenever in any complaint or the proceedings thereon it is necessary to describe the ownership of any work or building made, maintained, or repaired at the expense of any public board of commissioners or trustees, or of any materials for the making, altering, or repairing of the same, it shall be sufficient to describe the same as the property of such commissioners or trustees without naming them.
57 Issue of summons
(1)When a complaint has been made and filed in the Court, the Court must, subject to subsection (2), issue a summons for the appearance of the defendant.
(2) No summons need be issued—
(a) where the relevant law under which the complaint is made provides for the matter to be dealt with ex parte ; or
(b) where the defendant is already before the Court; or
(c) where a warrant is issued to have the defendant arrested and brought before the Court.
(3)If when a complaint is filed in the Court the whereabouts of the defendant is unknown, the Court may defer issuing a summons until informed of a place at which service might be effected.
58 Issue of warrant
The Court may issue a warrant to have the defendant arrested and brought before the Court if—
(a) the allegations in the complaint are substantiated on oath; or
(b) the defendant fails to appear in obedience to a summons and the Court is satisfied that the summons was served a reasonable time before the time appointed for the hearing.
Both counsel referred to the wide meanings may be ascribed to the word “proceedings” and the phrase “institution of proceedings”. A number of authorities have considered the relevant dictionary definitions.[4]
“Proceedings” is defined in the Butterworth’s Legal Dictionary as follows:
An action commenced in a court. A proceeding is a proceeding in a court whether between parties or not, including an incidental proceeding in the course of, or in connection with a proceeding, and includes an appeal: for example Federal Court of Australia Act 1976 (Cth) s 4. Historically, the term “proceeding” was given a narrow interpretation to mean the “invocation of jurisdiction of the court by process other than a writ” (Herbert Berry Associates Ltd v Inland Revenue Commissioners [1977] 1 WLR 1437 at 1446), or “an application by a suitor to a court in its civil jurisdiction for its intervention or action” (Cheney v Spooner (1929) 41 CLR 532 at 538). This traditional legal meaning has been extended (for example under Extradition Act 1988 (Cth) s 91(1)) to mean the steps and procedures that take place before an investigating magistrate, even though the task of the magistrate in issuing an extradition warrant is administrative as distinct from legal and judicial: Forrest v Kelly (1991) 32 FCR 558.
[4] Flexible Manufacturing Systems Pty Ltd v Alter (2004) 182 FLR 15 at 19; Blake v Norris (1990) 20 NSWLR 300
In Blake v Norris,[5] Smart J referred to numerous dictionaries in considering the meaning of the word “proceeding” as contained in section 5 of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (NSW).[6] This included the Shorter Oxford English Dictionary On Historical Principles, 3rd ed (1993) at 1677 which defined “proceedings” as follows:
3. spec. The instituting or carrying on of an action at law; a legal action or process; any act done by authority of a court of law; any step taken in a cause by either party.
Smart J continued:
[I]t is apparent from the meaning given in the Oxford Dictionary that “proceedings” can mean either the action itself or a step taken in such action.
[5] Blake v Norris (1990) 20 NSWLR 300
[6] Blake v Norris (1990) 20 NSWLR 300 at 306.
The word “proceeding” is capable of such a variety of meaning that dictionary definitions as to its ordinary or natural meaning are not of much use. Moreover, they illustrate the number of meanings which the word can bear.
Smart J concluded that any assistance as to the word’s meaning has to be derived from the statutory context and the objects of the legislation in question. I have already referred to the objects of the legislation earlier in this judgment.
Principles of statutory construction
Before discussing the interpretation of these provisions it is appropriate to identify a number of relevant principles of statutory construction.
The adoption of a purposive construction is the usual or general approach to be taken to issues of statutory construction.[7] A purposive approach to statutory construction is also prescribed by section 22(1) of the Acts Interpretation Act 1915 (SA):
[W]here a provision of an Act is reasonably open to more than one construction, a construction that would promote the purpose or object of the Act (whether or not that purpose or object is expressly stated in the Act) must be preferred to a construction that would not promote that purpose or object.
[7] Minister for Employment and Workplace Relations v Gribbles Radiology Pty Ltd (2005) 222 CLR 194 at [88] (Kirby J).
In Palgo Holdings Pty Ltd v Gowans, Kirby J made the following observations in relation to purposive construction:[8]
... a purposive and not a literal approach[9] is the method of statutory construction that now prevails:[10]
“A search for the grammatical meaning still constitutes the starting point. But if the grammatical meaning of a provision does not give effect to the purpose of the legislation, the grammatical meaning cannot prevail. It must give way to the construction which will promote the purpose or object of the Act.”
Courts are no longer satisfied with a literal or grammatical meaning of words that does not conform to the presumed legislative intention, including the policy that can be discerned from the law in question.[11] As Lord Diplock explained, in an extra-judicial comment,[12] “if ... the Courts can identify the target of Parliamentary legislation their proper function is to see that it is hit: not merely to record that it has been missed”.[13]
[8] Palgo Holdings Pty Ltd v Gowans (2005) 221 CLR 249 at [35]-[36].
[9] Fothergill v Monarch Airlines Ltd [1981] AC 251 at 272-273, 275, 280, 290.
[10] Kingston v Keprose Pty Ltd (1987) 11 NSWLR 404 at 423 (McHugh JA) approved in Bropho v Western Australia (1990) 171 CLR 1 at 20.
[11] Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297 at 321.
[12] Referring to Inland Revenue Commissioners v Ayrshire Employers Mutual Insurance Association Ltd [1946] 1 All ER 637 at 641.
[13] Lord Diplock, ‘The Courts as Legislators’ in Brian Harvey (ed), The Lawyer and Justice (1978) 263, 274; cited in Kingston (1987) 11 NSWLR 404 at 424.
All words in a statute must prima facie be given some meaning and effect. In Project Blue Sky v Australian Broadcasting Authority, McHugh, Gummow, Kirby and Hayne JJ observed:[14]
[A] court construing a statutory provision must strive to give meaning to every word of the provision.[15] In The Commonwealth v Baume[16] Griffith CJ cited R v Berchet[17] to support the proposition that it was “a known rule in the interpretation of Statutes that such a sense is to be made upon the whole as that no clause, sentence, or word shall prove superfluous, void, or insignificant, if by any other construction they may all be made useful and pertinent”.
[14] Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355 at [71].
[15] The Commonwealth v Baume (1905) 2 CLR 405, 414 (Griffith CJ), 419 (O'Connor J); Chu Kheng Lim v Minister for Immigration Local Government & Ethnic Affairs (1992) 176 CLR 1 at 12-13 (Mason CJ).
[16] Commonwealth v Baume (1905) 2 CLR 405 at 414.
[17] R v Berchet (1688) 1 Show KB 106 [89 ER 480].
The importance of context as an aid to statutory construction was noted by Kirby J in Palgo Holdings v Gowans:[18]
... the meaning of words in legislation is not derived by taking a word in isolation and construing it as if it existed in a vacuum. In the law, context is critical.[19] In a statute, a word (if undefined) normally takes its meaning from the surrounding text. Isolating a word … and affording it meaning torn from its context is a discredited approach to interpretation, given the way that language is ordinarily used and understood by human beings.[20]
The context of a statute is not confined to its own words and their deployment within it, but also includes the legislative history, the statutory context furnished by legislation in pari materia, and the existing state of the law in which the statute was enacted, which embraces the then understanding of equity and the common law.[21]
[18] Palgo Holdings v Gowans (2005) 221 CLR 249 at [37].
[19] R (Daly) v Home Secretary [2001] 2 AC 532 at 548 [28] (Lord Steyn).
[20] Collector of Customs v Agfa-Gevaert Ltd (1996) 186 CLR 389 at 396-397, citing R v Brown [1996] AC 543 at 561.
[21] K&S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd (1985) 157 CLR 309 at 315 (Mason J); Wik Peoples v Queensland (1996) 187 CLR 1 at 171 (Gummow J).
The Court is entitled to have regard to headings in statutory provisions. Section 19(1)(b) of the Acts Interpretation Act 1915 (SA) provides:
(1) The following form part of an Act, subject to any express provision to the contrary:
(a) preambles, schedules, dictionaries and appendices (including their headings);
(b) chapter headings, part headings, division headings and subdivision headings;
(c) examples, qualifications, exceptions, tables, diagrams, maps and other illustrations (including their headings), except where they form part of a note that does not form part of the Act;
(d) punctuation.
In Silk Bros Pty Ltd v State Electricity Commission of Victoria, Latham CJ observed:[22]
The headings in a statute or in Regulations can be taken into consideration in determining the meaning of a provision where that provision is ambiguous, and may sometimes be of service in determining the scope of a provision.
[22] Silk Bros Pty Ltd v State Electricity Commission of Victoria (1943) 67 CLR 1 at 16 (Latham CJ)
The characterisation of the amendment
On appeal counsel for the defendant submitted that the changes brought about by the 1991 amendments to the Summary Procedure Act did not effect any substantive or significant change in procedure. It was the core of his submission that the previous statutory regime had, in substance, been continued, and that authorities addressing the earlier statutory regime were directly relevant to the interpretation of the 1991 amended scheme.
The second reading speech introducing Part 4 Division 2 into the Summary Procedure Act described the amendments as “significant” and “substantial”. The Minister noted:[23]
[I]t is hoped that these procedural reforms will make a significant impact on the problems of delays and court congestion with substantial concomitant benefits to the administration of justice, the public interest, and the interests of all those in contact with the criminal justice system.
…
Clause 22, in replacing section 49, dealing with complaints requires that a complaint made orally must be reduced to writing. The clause also removes the provision in section 49b that a complaint may be made to a justice where the justice has authority by law to make any order for the payment of money or otherwise.
[23] South Australia, Parliamentary Debates, Legislative Council, 14 August 1991, 152, 154, Hon C. J. Sumner.
In Miller v Police,[24] Nyland J observed:
… The significant change effected by the amending legislation is to make the issuing of a summons mandatory once a complaint has been made and filed in the court. The Justice of the Peace no longer has any discretion with respect to the issue of the summons. Mr Boylan argued, however, that if the amendment had removed the discretion then the formality to which Mitchell ACJ referred in Manos’ case must now include the Justice of the Peace applying his/her mind to the matter of the complaint, otherwise there would be no screening for frivolous complaints, complaints made out of time or complaints alleging non-existent offences. I cannot, however, accept that argument.
The change in the legislation, in my view, reflects an intention on the part of the legislature to remove the discretion vested in the Justice of the Peace and overcome any difficulties which may have been encountered under the previous Act. It does not thereby convert the making of the complaint into a judicial act. Subject to the provisions contained in s 49(4)(a) or (b), a complaint need not even be made on oath. The complaint could simply be signed by the complainant and filed at the court. Once that occurred, the court would be required to issue a summons. The role of the Justice of the Peace has therefore been severely curtailed. There would not seem to be any reason to impose a greater obligation upon a justice witnessing a signature on a complaint as opposed to any other document. The legislation places the onus upon the complainant to ensure that the document is a valid complaint and he/she may well be at risk with respect to an order for costs if the complaint for any reason is not correctly made.
[24] Miller v Police (1997) 67 SASR 484 at 488-489 (Nyland J).
In Police v Korber[25] Bleby J considered the nature of the changes brought about by the 1991 amendments to Part 4 Division 2 of the Summary Procedure Act. Bleby J addressed the progenitor provisions to the 1991 amendments, noting that the amendments effected a substantial change in practice, and observed:[26]
The statutory amendments which came into force in 1992 abolished courts of summary jurisdiction as such and created the Magistrates Court as a court of record. Any complaint, if oral, had to be reduced to writing. Otherwise, the method of making a complaint was no longer prescribed in the Summary Procedure Act but was to be made in accordance with the rules of the Magistrates Court. Those rules, while retaining the essence of the previous process for some complainants, changed the procedure significantly for complaints made by a public authority or public officer as defined in s 57A of the Summary Procedure Act. In practice, that group of complainants is by far the largest single group of persons who make complaints. Under the new procedure they were able to “make and lay” the complaint by signing and dating a written complaint without appearing before a justice. For this group of complainants, the former role of a justice had been eliminated.
What was the second stage of the process — the issuing of a summons by the justice before whom the complaint was made — became the function and, in most cases, the obligation of the newly constituted Magistrates Court upon the filing in that Court of the complaint. The court was required to issue the summons under s 57 of the Summary Procedure Act. That did not require the exercise of a discretion.
[25] Police v Korber (2003) 85 SASR 472.
[26] Police v Korber (2003) 85 SASR 472 at [38] – [41] (Bleby J, Doyle CJ and Perry J agreeing).
The submission that no significant change had been effected is not supported by a comparison of and an analysis of both the relevant progenitor and current provisions. The submission is directly at odds with the observations of Nyland J in Miller and Bleby J in Korber. In my view this submission is misconceived and should be rejected.
The Statutory Scheme
Relevant to the present appeal, the following observations may be made about the statutory scheme contained in Part 4 of the Summary Procedure Act.
Section 49 provides for the making of complaints. The making of a complaint is an administrative act of a prosecutor or, in this case, a “public authority”. Section 49(5) requires, once a complaint is signed, that it be filed in the Court as soon as practicable after it is made.
Section 52 provides a time limit for the commencement of summary proceedings. The section does not, however, provide a definition of the commencement of proceedings under the Act.
Section 57 provides that the Court must issue a summons for the appearance of the defendant when a complaint has been made and filed in the Court. Until a complaint is filed, the prosecution cannot proceed.
It is clear that under Part 4, Division 2 of the Act, the complaint is separate from, or antecedent to, any proceeding. Counsel for the complainant referred in particular to the heading of Division 2, which refers to “complaint and subsequent proceedings”.
The making and filing of a complaint in the summary court are two separate and distinct acts. The making of a complaint pursuant to section 49 is an administrative step which initiates summary proceedings. However, it is the filing of a complaint in the court of trial that is the administrative step that causes proceedings to commence.
Thus it can be seen that section 49 contemplates the making of a complaint in accordance with the rules charging that person with the offence. It was common ground on appeal that the reference to “the rules” is a reference to the Magistrates Court Rules, and in particular Rule 12, which relevantly provides:
12.03 The complaint when reduced to writing must be
(i) signed by the complainant (or other duly authorised person), and, subject to Rule 12.04
(ii) signed and dated by the witness.
12.04A "public authority" or "public officer" (as defined in section 57a of the Act) or a legal practitioner may make a complaint in writing on signing and dating it without appearing before a witness.
…
12.06Where a complaint is made by a "public authority" (as defined in section 57a of the Act) the complaint and proceedings thereon may be entitled " (Name of public authority) v.........".
12.07A complaint, other than a complaint filed under Rule 28, must be filed in the Court within seven days of being made unless that is not practicable.
It may be further noted that the legislature, having authorised the making of complaint in accordance with the Rules, then provided that the complaint “must be filed in the Court as soon as practicable after it is made”. In the case of a public officer, including the present complainant, the earlier procedure of requiring the complainant to go before a Justice has been abandoned. There is no need for such a complainant to do other than sign the complaint and then, as soon as practicable, file the complaint in Court.
It is to be observed that there is no reference to “proceedings” in section 49. However, reference to “proceedings” appears in sections 51, 52 and 54. Reference is also made to “proceedings” in the heading to Part 4, Division 2. In my view it is clear that the legislation seeks to separate a complaint from the subsequent proceedings. The heading to Division 2 speaks of “complaint” and “subsequent proceedings”. Section 54 uses the phrase “any complaint or proceedings thereon”. Section 52 speaks of “proceedings must be commenced”.
Counsel for the defendant submitted that the signing of the complaint was the first step in a proceeding. It said it represented the charging of a defendant with an offence and should be characterised as a proceeding. It was then argued that the reference to “proceeding” in the other sections in Division 4 and in the heading was a reference to proceedings in court or a later or other stage of the proceeding. Counsel argued that this was consistent with the approach taken to the interpretation of the progenitor provisions and referred to a number of authorities said to support that contention.[27]
[27] McDonnell v Smith (1918) 24 CLR 409; Walsh v Doherty [1907] 5 CLR 196.
In my view earlier authorities are of limited assistance. They address different legislative schemes, differently worded legislation and concern the construction of discrete statutory provisions. Some relate to provisions that deal with prosecutions rather than proceedings. Others relate to the progenitor scheme that involved the “making and laying” of a complaint before a Justice and then the issue of a summons by the Justice without any reference in the legislation to the filing of a complaint in a court. As earlier observed, substantive and significant changes were made to the procedures under discussion, which render the earlier authorities distinguishable and of marginal relevance.
In my view the effect of Division 4 Part 2 is to address the making of a complaint and the filing of the complaint in the summary court. The summary proceedings are instituted by the filing of the complaint. It is at the moment of filing that the proceeding is instituted. This accords with dicta of Bleby J in Korber, where his Honour observed:[28]
Moreover, the provisions of s 52 of the Summary Procedure Act were later (in 1997) amended to provide time limits from the date of the alleged offence within which proceedings must be commenced. The operative action to be taken within the required limitation period was no longer the making of the complaint referred to in s 49, but the commencement of proceedings. In my opinion that related to the filing of the complaint in the court, and not the making of the complaint. That had the effect of eliminating any possibility of a complainant, who might not now have to appear before a justice, backdating a complaint which would otherwise have been out of time. [emphasis added].
[28] Police v Korber (2003) 85 SASR 472 at [40].
It is now convenient to turn to the provision of the Legal Practitioners Act. I consider that the word “proceedings” as used in section 96(2) carries the same meaning as the word “proceedings” as used in Division 4 Part 2 of the Summary Procedure Act. The institution of the “proceeding” is to be authorised by the Attorney-General. The section requires the Attorney-General to authorise the institution of the proceeding, that is, the filing of the complaint in the summary court.
The evident purpose of section 96 of the Legal Practitioners Act is to ensure that proceedings alleging practising without a legal practitioner’s certificate are not initiated without the Attorney’s approval. That purpose is met by the construction referred to in the preceding paragraph. In the present case, as earlier observed, the Attorney-General authorised “the institution of prosecution proceedings pursuant to section 21 of the Legal Practitioners Act”. I agree with the observations of the Chief Magistrate that the word “prosecution” adds nothing and that the authorisation otherwise meets the requirements of section 96(2). I reject the submission of the defendant that the reference to the “institution of proceedings” in section 96(2) is a reference to the making of a complaint.
The word “proceeding” and the phrase “institution of proceedings” are to take their meaning from the context in which they appear, having regard to the evident purposes of the statutory provisions. I consider that the meaning of the phrase “institution of proceedings” is a reference to the filing of a complaint in court. Further, to construe the phrase “institution of proceedings” in section 96(2) of the Legal Practitioners Act as being a reference to the filing of a complaint in court, identifies a clear and straightforward process, meets the evident purpose of section 96 of the Legal Practitioners Act and allows for consistency in meanings of the word “proceedings” and the phrase “institution of proceedings” in the related legislative provisions.
For the above reasons I am of the view that the complaint was properly made and the proceedings were properly instituted in accordance with the requirement of section 96(2) of the Legal Practitioners Act. The Chief Magistrate erred in dismissing the complaint.
The Magistrate’s reasons
Earlier I indicated that I would return to address the contention of counsel for Mr Maguire that no regard should be had to the Chief Magistrate’s reasons as a result of the lateness of their delivery.
Before coming to discuss the legal arguments, it is appropriate to record in more detail what occurred. At the time of judgment, the Chief Magistrate said:
I can indicate to you both that I consider that the proceedings were commenced when the document was signed and I further consider that the relevant section, s96, [sic] in my view implies that the Attorney General needs to have given that permission at the time in order for the proceedings to be properly brought. I am indicating this view at this point. I reserve to myself the right to, if required by either or both parties, produce a written ruling to the effect but in order to progress this matter which is already somewhat aged, I am giving you my ruling at this point.
Counsel for the complainant sought clarification and the publication of the reasons as offered. Counsel emphasised the importance of providing reasons as follows:
[Counsel]: If that is indeed to be the ruling then obviously the Court has no jurisdiction to proceed any further. As your Honour would imagine this is a matter of considerable importance to the Attorney-General’s Department and so I would ask that some reasons be produced and published for further consideration.
The Chief Magistrate concluded:
[T]he complaint is dismissed with the reservation that I’ve already expressed as to whether that’s the course and costs ordered to the defence to be agreed or if not agreed to be re-listed before me for argument.
A document headed “Ruling of Chief Magistrate Bolton – 3 February 2009” was published on 2 April 2009.
Counsel for Mr Maguire submitted that the first issue for consideration is what comprised the “judgment” of the Chief Magistrate: was it the extremely brief oral reasons expressed on 24 February 2009 or those contained in the document published on 2 April 2009?
It was then contended that another issue to be considered is the extent to which it is jurisdictionally valid or appropriate to publish reasons a considerable time after judgment itself has been handed down. It was further submitted, that the context of the present matter was one in which the appeal had been set down for hearing and respective arguments filed in this Court.
Counsel for Mr Maguire questioned whether it is jurisdictionally valid or appropriate for a summary court to reserve the right to publish reasons for the final disposition of a matter in the event some contingent future event occurs, such as a request made by a party or the lodging of an appeal. Mr Maguire also questioned that, in the event an appeal is lodged, as in the present case, whether an obligation or discretion to provide those reasons exists.
It was submitted that determination of these questions is necessary in order to provide guidance to parties seeking more thorough reasons for the conclusion of a judicial officer in summary courts. It was said that it is unsatisfactory for parties to approach the Court, in an extra curial way, as in the present case, in order to obtain the judicial officer’s reasons for decision.
The duty of judicial officers to provide reasons for their decisions is well-established as an incident of the judicial process and as necessary to enable appellate review.
In Palmer v Clarke,[29] Kirby P and Priestley JA reviewed the common law and the oft-related statutory duty of a subordinate court to pronounce judgment and contemporaneously deliver reasons in support of its decision.[30] The authorities recognise that while flexibility with respect to the publication of reasons can be extended to superior courts of unlimited jurisdiction, in interlocutory matters such as voir dire rulings and various applications in the civil jursidiction, the obligation on summary and inferior courts is strict. There is a common law duty that such courts provide reasons no later than at the time of judgment. Priestley JA observed in Palmer v Clarke:[31]
[29] Palmer v Clarke (1989) 19 NSWLR 158.
[30] These principles have found support in other Australian jurisdictions. See, for example: Fletcher Construction Australia Ltd v Lines MacFarlane & Marshall Pty Ltd (2001) 4 VR 28 and Director of Public Prosecutions (Tas) v Cook (2006) 166 A Crim R 234.
[31] Palmer v Clarke (1989) 19 NSWLR 158 at 174.
Lying behind the formal requirements concerning judgments in the District Court are practical necessities, in the absence of which the court system either could not operate or could only operate with quite unacceptable difficulty. One is that the date when a judgment becomes enforceable must be unambiguous and immediately knowable to any interested person. Another is that the reasons must be known at the time of the judgment. Amongst the reasons for this is the necessity, as it seems to me, for parties to know at once why their rights have been affected by a judgment in whatever way the judgment has affected. Also, immediate appeals may sometimes have to be lodged. Also, it seems to me to be highly desirable to enable public confidence in the administration of justice to be maintained for the reasons for the affectation of rights to be known immediately the rights are affected.
Priestley JA then noted:[32]
[32] Palmer v Clarke (1989) 19 NSWLR 158 at 175.
The matters I have mentioned are only some of those which seem to me to point overwhelmingly towards the need for rules which ensures that there is certainty both about the date of judgment and the reasons for that judgment, the latter preceding the former.
In Fletcher Construction Australia Ltd v Lines MacFarlane & Marshall Pty Ltd Chernov JA noted the clear distinction between inferior courts and superior courts of unlimited jurisdiction with respect to the time at which reasons should be delivered:[33]
… [T]here may be circumstances where the reasons are given “very soon” after the pronouncement of judgment. That view is consistent with the practice of the courts to which I will refer later, including the High Court and this Court, that although ordinarily reasons are given when judgment is pronounced, where the justice of the situation requires it there may be an appreciable gap between the pronouncement of judgment and the delivery of reasons.
Chernov JA then went on to discuss the desirability of the timely publication of reasons:[34]
First, the parties are entitled to a decision which is based on the reasoning process of the judge which has been concluded by the time the decision is pronounced. The court should not reserve to itself the opportunity to mould reasons, after the pronouncement of judgment, so as to make them appear consistent with the decision. That is not to say, of course, that a judge cannot review the reasons after they have been published.
…
Secondly, the unsuccessful party should be in a position to determine within the time constraints imposed by the Rules of the Court, whether to appeal against the decision. From a realistic point of view, it can only do this if the reasons for the decision are made available to it when, or very shortly after, judgment is pronounced. There are other sound reasons based on policy and practical considerations which were mentioned by Kirby P and Priestley JA in Palmer and to which I have referred which support the view that as a general rule, all judicial officers who are required to give reasoned judgments, should do so when pronouncing them. But it is another thing to say, as the appellant contends, that a judge of a court of unlimited jurisdiction is under a strict duty to give reasons contemporaneously with the decision.
[33] Fletcher Construction Australia Ltd v Lines MacFarlane & Marshall Pty Ltd (2001) 4 VR 28 at 39.
[34] Fletcher Construction Australia Ltd v Lines MacFarlane & Marshall Pty Ltd (2001) 4 VR 28 at 40.
In Director of Public Prosecutions (Tas) v Cook Crawford J, citing the authorities considered by the Victorian Court of Appeal in Fletcher Construction Australia, summarised the rationale underlying the provision of reasons in a timely manner as follows:[35]
…[T]he provision of reasons serves at least four purposes. It enables the parties to appreciate both the extent to which their arguments have been understood and accepted and the basis of the judge’s decision; it furthers judicial accountability; it enables an understanding of the basis on which like cases will probably be decided in the future; and it enables an appeal court to determine whether the decision was or was not based on an error of law or some other appealable error. Associated with the first and last of those purposes is to be included an enabling or facilitating of the making of the decision by an unsuccessful party whether or not to appeal. With that object in mind, it is usually desirable that reasons be published at the time of judgment or ruling, and if that is not reasonably possible, then as soon thereafter as the judicial officer can manage it and before the time for an appeal has expired. But in a superior court there is no rule of law that requires it.
[35] Director of Public Prosecutions (Tas) v Cook (2006) 166 A Crim R 234 at 242.
The criminal jurisdiction of the Magistrates Court is conferred by section 9 of the Magistrates Court Act 1991 (SA).[36] Section 18 of the Act provides, except where otherwise provided for by the Act or the Rules of Court, that the Court’s proceedings must be open to the public.[37]
[36] Section 9 of the Magistrates Court Act 1991 (SA) provides:
Subject to the Summary Procedure Act 1921 the Court has jurisdiction—
(a) to conduct a preliminary examination of a charge of an indictable offence;
(b) to hear and determine a charge of a minor indictable offence;
(c) to hear and determine a charge of a summary offence.
[37] Section 18 of the Magistrates Court Act 1991 (SA) provides:
Except where an Act or the rules otherwise provide, the Court's proceedings must be open to the public.
Rule 103 of the Magistrates Court (Civil) Rules 1992 is headed “judgment”, and provides:
(1)The Court must give reasons for a final judgment after the conclusion of a contested hearing.
(2)Where the Court delivers an ex tempore final judgment and reasons for it, the Court is taken to reserve to itself the power –
(a) to edit formally those reasons; and
(b) to make further findings of fact or determinations of law consistent with the judgment and reasons, in the event that their publication in final written form is required.
(3)Where the Court has reserved its decision, it must give final judgment within 2 months of the date it was reserved.
(4)Where for any reason the Court is unable to deliver a reserved final judgment, the Registrar may read the judgment to the parties in open Court.
There is no such rule governing criminal proceedings in the Magistrates Court. It must then be determined what the criminal jurisdiction granted to the Magistrates Court by section 9 of the Act would encompass. It was submitted that this statutory grant of jurisdiction would include all incidents of power reasonably necessary to enable judicial powers to be properly exercised as recognised by the common law.
This review of authority confirms the importance of reasons being provided at or soon after judgment. It is plainly desirable that parties have reasons for judgment so that they are in a position to exercise their rights of appeal. However, none of the authorities go so far as to say that late reasons are not to be had regard to. Circumstances may arise in which it is not possible for a magistrate to deliver reasons at the time of judgment or soon thereafter. One would expect that there would be good reason for any delay. In the present proceeding the heavy administrative responsibilities of the Chief Magistrate are to be borne in mind, and that the need to attend to those responsibilities may, on some occasions, lead to some delay in the delivery of reasons.
Conclusion
This appeal is allowed. The orders of the Chief Magistrate are set aside. The complaint is remitted to the Chief Magistrate for further hearing. The defendant is to pay the complainant’s costs of the appeal, to be taxed on a party-party basis. The defendant is to pay the costs thrown away in the Magistrates Court in an amount to be fixed by the Chief Magistrate.
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