McLeod-Dryden v Supreme Court of Victoria
[2017] VSCA 60
•23 March 2017
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCI 2017 0021
| RAYMOND MCLEOD-DRYDEN | Applicant |
| v | |
| SUPREME COURT OF VICTORIA (in its capacity under the Major Crime (Investigative Powers) Act 2004) | Respondent |
| AND | |
| VICTORIA LEGAL AID | Amicus Curiae |
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| JUDGES: | PRIEST, SANTAMARIA and McLEISH JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 3 March 2017 |
| DATE OF JUDGMENT: | 23 March 2017 |
| MEDIUM NEUTRAL CITATION: | [2017] VSCA 60 |
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JUDICIAL REVIEW — Review of refusal of coercive powers order — Organised crime offence — Systemic and continuing criminal activity — Meaning of — Whether systemic and continuing criminal activity must be extant at time when application for coercive powers order is made — Major Crime (Investigative Powers) Act 2004 ss 3AA(2)(b), 5, 8.
PRACTICE AND PROCEDURE — Application for judicial review of refusal of coercive powers order by judge of Supreme Court — Whether Supreme Court proper defendant — Supreme Court (General Civil Procedure) Rules 2015 r 56.01.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr D Gurvich QC with Mr A Imrie | Victoria Police |
| For the Respondent | No appearance | |
| Appearing as Amicus Curiae | Mr T Marsh | Victoria Legal Aid |
PRIEST JA
SANTAMARIA JA
McLEISH JA:
Introduction
Reformulated, the essential question posed in this proceeding is whether the systemic and continuing criminal activity of which an organised crime offence forms part must be extant at the time when an application for a coercive powers order (‘CPO’) under s 5 of the Major Crime (Investigative Powers) Act 2004 (‘the Act’) is made.[1]
[1]With respect to the question posed for the Court’s consideration (see [13] below), counsel for the applicant accepted that ‘the question itself could have been expressed slightly better’, it being ‘not as eloquent as it should have been’.
For the reasons that follow, we would answer in the negative.
Background
By an application dated 26 April 2016, the applicant sought a CPO pursuant to s 5 of the Act, for the purposes of investigating two organised crime offences.
Section 3AA of the Act defines organised crime offence as follows:[2]
[2]Emphasis added.
3AA Meaning of organised crime offence
(1) For the purposes of this Act, organised crime offence means an indictable offence against the law of Victoria that—
(a) is punishable by level 5 imprisonment (10 years maximum) or more; and
(b) involves 2 or more offenders; and
(c) satisfies subsection (2) or (3).
(2) An offence satisfies this subsection if the offence—
(a) involves substantial planning and organisation; and
(b) forms part of systemic and continuing criminal activity; and
(c) has a purpose of obtaining profit, gain, power or influence or of sexual gratification where the victim is a child.
(3) An offence satisfies this subsection if 2 or more of the offenders involved in the offence are, at any time, either declared individuals or a [sic.] declared organisation members.
(4) It is immaterial that the offence was committed before the commencement of this Act.
On 10 May 2016, a judge of the Supreme Court (‘the primary judge’) heard the application. Both the applicant and the Public Interest Monitor[3] appeared through counsel.
[3]See s 3D of the Act.
Later, on 5 July 2016, the primary judge refused the application, and provided written reasons for that refusal. In essence, the judge refused the application because he was not satisfied that the relevant offences formed ‘part of systemic and continuing criminal activity’ within the meaning of s 3AA(2)(b).[4]
[4]See [18]–[23] below.
Counsel for the applicant asked the judge not to make final orders until instructions could be obtained concerning an application under s 17B of the Supreme Court Act 1986. The matter was thus adjourned until 8 July 2016.
On 8 July 2016, the applicant made the foreshadowed application under s 17B(1) of the Supreme Court Act 1986. The primary judge refused the application. He then made final orders formalising the refusal of the application for the CPO.
Subsequently, on 5 September 2016, the applicant (as plaintiff) filed an originating motion — naming the ‘Supreme Court of Victoria (in its capacity under the Major Crime (Investigative Powers) Act 2004)’ as defendant[5] — seeking the following relief:
[5]See [36] et seq. below.
1. Relief in the nature of certiorari to quash the decision of the Defendant made on 5 July 2016 to reject the Plaintiff’s application for a coercive powers order numbered M.C. (I.P.) 2016 No. 41 under the Major Crime (Investigative Powers) Act 2004 (the Act) (the decision).
2. Declarations that:
2.1the decision was not made according to law by reason of the grounds of this originating motion;
2.2the decision was invalid on the grounds of this originating motion.
3. Orders remitting the matter to the Supreme Court of Victoria to be determined according to law.
4. Such further orders as this Honourable Court may think fit.
The ground relied upon is:
1. The defendant erred in construing “forms part of systemic and continuing criminal activity” in s 3AA(2)(b) of the Act to mean ‘continuing’ as at the date an application for a coercive powers order is made pursuant to s 5(1) of the Act.
On 30 November 2016, the applicant filed submissions in support of the relief sought in the originating motion.
Thereafter, on 21 December 2016, another judge of the Supreme Court ordered that relevant documents be served on Victoria Legal Aid (‘VLA’) — we do not pause to consider whether that was an appropriate course to adopt — and, on 13 January 2017, service was effectuated.
On 21 February 2017, another judge again of the Supreme Court (‘the second judge’) conducted a directions hearing with respect to the proceedings. The applicant (plaintiff) was represented by counsel; and, by leave, VLA appeared as amicus curiae. In the course of that hearing, the second judge said that she had ‘had a look at the originating motion’, and had satisfied herself ‘that judicial review is the appropriate path to take’. Counsel for the applicant then made an application under s 17B(1) of the Supreme Court Act 1986, upon which VLA did not ‘wish to be heard’. Ultimately, the second judge made an order under s 17B. She observed:
This does seem to me to be a case that cries out for an authorative determination by the Court of Appeal of what’s really an important question of the construction of the relevant part of s 3AA of the Major Crime (Investigative Powers) Act.
[The primary judge’s] decision rested on his construction of that Act. He has given detailed reasons for that construction. The only issue in this proceeding — the judicial review proceeding — is whether his Honour erred in that construction, that is a legal question. There are no or very few underlying facts, certainly not controversial facts in issue. As I say it is an important question for current and future cases. There is some conflict in the authorities and I think it is timely that the matter, as I say, be authoratively determined at this point in time.
I am also concerned that if the court identifies error in [the primary judge’s] construction of the provision, the plaintiff will be left with the outcome that it wants, but in terms where it has further conflicting decisions of single judges sitting in the trial division.
If the court identifies no error in [the primary judge’s] construction, the plaintiff would, no doubt, wish to take the matter further in any event. So it is, in my view, in the interests of justice to refer the question to the Court of Appeal for hearing and determination. The administration of justice in Victoria will benefit generally from an authorative determination.
In the result, the second judge directed that the following question be argued before the Court of Appeal pursuant to s 17B(2) of the Supreme Court Act 1986:
Does the phrase “forms part of systemic and continuing criminal activity” in s 3AA(2)(b) of the Act mean ‘continuing’ as at the date an application for a coercive powers order is made pursuant to s 5(1) of the Act?
On 27 February 2017, VLA filed materials seeking leave to appear as amicus curiae, attaching written submissions in relation to the referred question. When leave was sought by VLA at the hearing in this Court to appear as amicus curiae, the Court indicated that it would entertain submissions as to the merits of the referred question, and later decide the question of leave. We have resolved that leave ought to be given, principally because the second judge (at least implicitly) gave VLA leave in the hearing before her. Moreover, in circumstances where the Attorney-General had been apprised of the proceeding in this Court, but had not sought to intervene, it was desirable to have a contradictor.[6]
[6]See Priest v West (2011) 35 VR 225, 232–4 [29]–[35] (Maxwell P, Harper JA and Kyrou AJA), and the cases there cited.
A question in a proceeding?
Subsections 17B(2) and (3) of the Supreme Court Act 1986 relevantly provide:
(2) The Trial Division constituted by a Judge of the Court … may, at the request of one of the parties but (unless the contrary is expressly enacted) not otherwise, reserve any proceeding or question in a proceeding for the consideration of the Court of Appeal, or direct any proceeding[[7]] or question in a proceeding to be argued before the Court of Appeal.
(3) If a case, question or proceeding is … directed by the Trial Division to be argued before it [sic.] the Court of Appeal and—
(a) the Court of Appeal gives leave, the case, proceeding or question may be considered by, or argued before, the Court of Appeal; or
(b) the Court of Appeal refuses leave, the case, proceeding or question must be remitted to the Trial Division for determination by it.
[7]By virtue of s 3(1), proceeding ‘means any matter in the Court other than a criminal proceeding’.
In Hodgson v State of Victoria,[8] it was held with respect to the forerunner of s 17B(2)[9] that there is no ‘question in a proceeding’ unless the determination of that question bears on whether a party is entitled to relief which he or she claims in the proceeding or on the extent of that relief.[10] Putting to one side discretionary and other considerations which will influence the determination by the second judge of the proceeding before her, we are satisfied that the determination of the referred question will bear directly on whether the applicant is entitled to the relief which he claims in the proceeding.
[8][1995] 2 VR 292 (‘Hodgson’).
[9]The former s 15(2) provided:
Subject to the Rules, the Court constituted by a Judge may, at the request of one of the parties but (unless the contrary is expressly enacted) not otherwise, reserve any proceeding or any question in a proceeding for the consideration of the Full Court …
[10]Hodgson, 296 (Tadgell J).
As to that, the relief sought in the originating motion is, as we have mentioned, in the nature of certiorari and declaration. At first blush, it might seem incongruous that a decision of a judge of the Supreme Court under the Act might be examinable by another judge of the Supreme Court in a proceeding for judicial review. We are satisfied, however, that a judge deciding whether to grant or refuse a CPO under the Act is exercising an administrative, not a judicial, function. On that issue, we think that the analysis of Kyrou J in Director of Public Prosecutions v Debono[11] is correct. Moreover, in our opinion, Kyrou J was correct to find that the validity of a CPO made by a judge of the Supreme Court is open to be challenged in separate judicial review proceedings in the Supreme Court,[12] accepting (as we do) that the immunity of a superior court judge from correction in such proceedings for non-jurisdictional legal error does not extend to a determination made when not acting in his or her judicial capacity.[13] Furthermore, we think that such proceedings by way of review may be heard by a single judge, rather than by the Court of Appeal.[14] Of course, it will be a matter for the trial judge to determine whether any (and, if so, what) relief ought to be granted, being cognisant of the limitations attending the grant of prerogative relief.
[11](2012) 268 FLR 261, 272–8 [42]–[78] (‘Debono’).
[12]Ibid 294–6 [153]–[160]. See also Patsalis v Attorney-General (NSW) (2013) 85 NSWLR 463, 470–4 [25]–[41] (‘Patsalis’); Director of Public Prosecutions (ACT) v Martin (2014) 9 ACTLR 1, 35–7 [143]–[152] (Murrell CJ, Katzmann and Wigney JJ).
[13]Patsalis, 473 [35].
[14]See Carroll v Attorney-General (NSW) (1993) 70 A Crim R 162, 180 (Mahoney AP), 184–5 (Hunt AJA); Haynes v Attorney-General (NSW) (Unreported, 9 February 1996, Supreme Court of New South Wales, James J).
The decision of the primary judge
The primary judge had before him an application for a CPO with respect to two alleged organised crime offences, being an armed robbery in 2014, and trafficking in a commercial quantity of a drug of dependence between January 2015 and July 2015.
It was the applicant’s contention that the relevant ‘criminal activity’ which is the subject of the application for the CPO must be continuing at the time of the alleged organised crime offence, but ‘does not have to be continuing at the time of the application’. That contention was rejected by the primary judge.
The primary judge noted that dictionary definitions of ‘continuing’ include ‘abiding, lasting, persistent, persevering’ and ‘keep on, to last or endure’, and that these definitions ‘do not sit easily with the applicant’s interpretation that all that is required is that the wider criminal activity is continuing at the time of the subject offence’. He also said that the word ‘systemic’ suggests that ‘continuing’ means ‘more than just continuing at the time of the subject offence’. The judge thought that the inclusion of the word ‘continuing’ in the definition in s 3AA(2)(b) of the Act ‘is superfluous if all that it requires is that there be reasonable grounds for suspecting that the wider criminal activity is continuing at the time of the subject offence’.
Further, the primary judge noted that compulsory examinations, which are facilitated by CPOs, ‘are a major encroachment on civil liberties’. Moreover, an application for a CPO need be based on no more than a reasonable suspicion that an organised crime offence has been, is being or is likely to be committed. These factors were reasons for favouring a restrictive interpretation of ‘continuing’.
In the course of his reasons, the primary judge referred to a number of decisions in which other judges faced with similar subject matter had made statements about the point in issue. It is fair to say, however, that in reaching his final conclusions, the primary judge did not place significant reliance on any of them. The present question has not received extensive consideration except in the reasons of the primary judge.
Ultimately, the primary judge concluded:
Given my view as to the meaning of continuing in s 3AA(2)(b), and the concession by the applicant that the wider criminal activity was not continuing at the time of the current application, neither of the subject offences were [organised crime offences]. Accordingly, the application for a CPO is rejected.
What is a systemic and continuing criminal activity?
We have come to a view contrary to that of the primary judge. In our opinion, properly interpreted, s 3AA(2)(b) does not require the relevant organised crime offence to be on foot at the time that an application for a CPO is made.
It is clear, in our view, that systemic and continuing is a composite adjectival expression modifying the compound noun criminal activity. Each of the conjoined adjectives in the composite expression is complementary one of the other. It is a hendiadys — an expression in which a single idea is conveyed by two words connected by a conjunction,[15] and in which each word in the expression tends to colour the other with its qualities.
[15]See Victims Compensation Fund Corporation v Brown (2003) 201 ALR 260, 269-70 [34] (Heydon J).
VLA submitted that the ‘tense’ of ‘continuing’ is significant, and that the ‘use of the present tense supports [the primary judge’]s analysis that the temporal quality is to be assessed at the time of the application’. One of the difficulties in accepting that submission is, of course, that as a matter of grammar, ‘continuing’ is an adjective, not a verb. More importantly, the submission gives insufficient attention to the provisions of s 5 of the Act.
By its terms, s 5 makes it abundantly clear that an application for a CPO may be made with respect to an organised crime offence that was committed in the past, is being committed in the present or is likely to be committed in the future; since, if a police officer suspects on reasonable grounds that an organised crime offence has been committed, is being committed or is likely to be committed, he or she may apply for a CPO. Hence, so far as is presently relevant, s 5 of the Act provides:[16]
[16]Emphasis added.
5Application for order
(1) Subject to subsections (2) and (2A), a police officer may apply to the Supreme Court for a coercive powers order if the police officer suspects on reasonable grounds that an organised crime offence has been, is being or is likely to be committed.
…
(2A) An offence that is an organised crime offence because it satisfies section 3AA(3) may be the subject of an application under subsection (1) only if 2 or more of the offenders involved in the offence are either declared individuals or declared organisation members at the time that the application is made.
(3) An application under subsection (1) must be in writing and must specify—
(a) the name and rank of the applicant; and
(b) the name and rank of the person who approved the application; and
(c) particulars of the organised crime offence in respect of which the coercive powers order is sought; and
(d) the name of each alleged offender or, if the name is unknown, state that the offender is unknown; and
(e) the period, not exceeding 12 months, that is sought for the duration of the coercive powers order.
(4) An application under subsection (1) must be supported by an affidavit of the applicant—
(a) stating that he or she suspects that an organised crime offence has been, is being, or is likely to be committed, as the case requires; and
(b) setting out the grounds on which the applicant holds that suspicion; and
(c) setting out the reason why the use of coercive powers is sought.
…
It will also be remembered that s 3AA(4) makes plain that, so far as the definition of organised crime offence is concerned, it is immaterial that the organised crime offence was committed before the commencement of the Act. This lends support to the view that an application for a CPO might be made even though the commission of the organised crime offence has been completed prior to the application being made.
The focus of s 5 is therefore directed at the suspicion, at the time of the application, of the past, present or future commission of an organised crime offence. The question whether the offence that is so suspected is an organised crime offence then depends on the definition in s 3AA. That definition contains no temporal link to the time of application. Each of the matters in s 3AA(2) is descriptive of the offence itself, whenever occurring. There is no basis for importing any different temporal reference point for applying those elements of the definition.
We note that, in order to grant a CPO, not only must the judge be satisfied that a police officer suspects on reasonable grounds that an organised crime offence has been committed, is being committed or is likely to be committed, but he or she must also be satisfied that it is in the public interest to make the order, having regard to the nature and gravity of the organised crime offence alleged and the impact of the use of coercive powers on the rights of members of the community. Thus, s 8 provides:
8 Determination of application
(1) The Supreme Court may make a coercive powers order if satisfied—
(a) that there are reasonable grounds for the suspicion founding the application for the order; and
(b) that it is in the public interest to make the order, having regard to—
(i) the nature and gravity of the alleged organised crime offence in respect of which the order is sought; and
(ii) the impact of the use of coercive powers on the rights of members of the community.
(2) In making a coercive powers order, the Supreme Court must have regard to any submissions made by a Public Interest Monitor.
It seems plain to us that the purpose underlying s 8 — which directs the judge’s attention to the public interest to make the order, having regard to the nature and gravity of the putative offence and the impact of the use of coercive powers on the rights of members of the community — is to ensure that, when considering whether or not to make a CPO, the judge pays due regard to common law rights which might be affected adversely by the making of the order.[17]
[17]In the circumstances, it is unnecessary to decide the extent to which the Charter of Human Rights and Responsibilities Act 2006 (‘the Charter’) may also bear on the judge’s function. See n 28 below.
In the course of oral submissions, VLA placed a deal of reliance on the principle of legality, which is based on the venerable presumption that Parliament does not intend to abrogate or curtail common law rights. That reliance was misconceived.
The principle of legality requires that, for the presumption to be displaced, an ‘unmistakable and unambiguous intention’ to abrogate or curtail common law rights must be manifested by ‘unmistakable and unambiguous language’, or arise by ‘necessary implication’.[18] Thus, the principle of legality requires that, where constructional choices are open, statutes should be construed so that they do not encroach, or encroach as little as possible, upon fundamental common law rights and freedoms. In North Australian Aboriginal Justice Agency Ltd v Northern Territory, French CJ, Kiefel and Bell JJ made the following observations about the principle:[19]
Before considering the constitutional validity of any statute, it is necessary to consider its construction and operation. Its construction will give effect to the ordinary meaning of its text in the wider statutory context and with reference to the purpose of the provision.[20] Further, the principle of legality favours a construction, if one be available, which avoids or minimises the statute’s encroachment upon fundamental principles, rights and freedoms at common law.[21] That presumption, which is well established, has been called ‘a working hypothesis, the existence of which is known both to Parliament and the courts, upon which statutory language will be interpreted’.[22] It is a presumption whose longstanding rationale is that it is highly improbable that parliament would ‘overthrow fundamental principles, infringe rights, or depart from the general system of law, without expressing its intention with irresistible clearness’.[23] Its object was set out in the joint judgment of Mason CJ, Brennan, Gaudron and McHugh JJ in Coco:[24]
curial insistence on a clear expression of an unmistakable and unambiguous intention to abrogate or curtail a fundamental freedom will enhance the parliamentary process by securing a greater measure of attention to the impact of legislative proposals on fundamental rights.
It is a principle of construction which is not to be put to one side as of ‘little assistance’ where the purpose of the relevant statute involves an interference with the liberty of the subject. It is properly applied in such a case to the choice of that construction, if one be reasonably open, which involves the least interference with that liberty. As TRS Allan has written:[25]
Liberty is not merely what remains when the meaning of statutes and the scope of executive powers have been settled authoritatively by the courts. The traditional civil and political liberties, like liberty of the person and freedom of speech, have independent and intrinsic weight: their importance justifies an interpretation of both common law and statute which serves to protect them from unwise and ill-considered interference or restriction.
[18]Coco v The Queen (1994) 179 CLR 427, 437–8. See also Al-Kateb v Godwin (2004) 219 CLR 562, 577 [19] (Gleeson CJ); Electrolux Home Products Pty Ltd v Australian Workers’ Union (2004) 221 CLR 309, 329 [21] (Gleeson CJ); Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252, 271 [58] (French CJ, Gummow, Hayne, Crennan and Kiefel JJ); Lacey v Attorney-General (Qld) (2011) 242 CLR 573, 591-2 [43] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ); Australian Crime Commission v Stoddart (2011) 244 CLR 554, 622 [181]–[182] (Crennan, Kiefel and Bell JJ)); Monis v The Queen (2013) 249 CLR 92, 209 [331] (Crennan, Kiefel and Bell JJ); Attorney-General (SA) v Corporation of the City of Adelaide (2013) 249 CLR 1, 65-8 [145]–[152] (Heydon J); X7 v Australian Crime Commission (2013) 248 CLR 92, 131-2 [86]–[87] (Hayne and Bell JJ), 153 [158] (Kiefel J); Tabcorp Holdings Ltd v Victoria (2016) 328 ALR 375, 389 [68] (French CJ, Kiefel, Bell, Keane and Gordon JJ).
[19](2015) 256 CLR 569, 581–2 [11] (citations in original).
[20]Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27 at 46-47 [47] per Hayne, Heydon, Crennan and Kiefel JJ.
[21]Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252 at 259 [15] per French CJ, Gummow, Hayne, Crennan and Kiefel JJ; Lacey v Attorney-General (Qld) (2011) 242 CLR 573 at 591-592 [43] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ; Australian Crime Commission v Stoddart (2011) 244 CLR 554 at 622 [182] per Crennan, Kiefel and Bell JJ; Australian Education Union v General Manager of Fair Work Australia (2012) 246 CLR 117 at 135 [30] per French CJ, Crennan and Kiefel JJ.
[22]Electrolux Home Products Pty Ltd v Australian Workers’ Union (2004) 221 CLR 309 at 329 [21] per Gleeson CJ. See also K-Generation Pty Ltd v Liquor Licensing Court (2009) 237 CLR 501 at 519-520 [46]-[47] per French CJ; Australian Crime Commission v Stoddart (2011) 244 CLR 554 at 622 [182] per Crennan, Kiefel and Bell JJ.
[23]Bropho v Western Australia (1990) 171 CLR 1 at 18 per Mason CJ, Deane, Dawson, Toohey, Gaudron and McHugh JJ, quoting Potter v Minahan (1908) 7 CLR 277 at 304 per O’Connor J; Coco v The Queen (1994) 179 CLR 427 at 437 per Mason CJ, Brennan, Gaudron and McHugh JJ; Electrolux Home Products Pty Ltd v Australian Workers’ Union (2004) 221 CLR 309 at 329 [21] per Gleeson CJ.
[24](1994) 179 CLR 427 at 437-438.
[25]Allan, ‘The Common Law as Constitution: Fundamental Rights and First Principles’, in Saunders (ed), Courts of Final Jurisdiction: The Mason Court in Australia (1996) 146, at p 148.
But as Gageler and Keane JJ observed in Lee:[26]
[26]Lee v New South Wales Crime Commission (2013) 251 CLR 196, 310 [313] (‘Lee’) (emphasis added). See also Lee, 230-1 [56] (French CJ); 249–50 [126] (Crennan J).
Application of the principle of construction is not confined to the protection of rights, freedoms or immunities that are hard-edged, of long standing or recognised and enforceable or otherwise protected at common law. The principle extends to the protection of fundamental principles and systemic values. The principle ought not, however, to be extended beyond its rationale: it exists to protect from inadvertent and collateral alteration rights, freedoms, immunities, principles and values that are important within our system of representative and responsible government under the rule of law; it does not exist to shield those rights, freedoms, immunities, principles and values from being specifically affected in the pursuit of clearly identified legislative objects by means within the constitutional competence of the enacting legislature.
And later:[27]
… The interpretative strictures of the legality principle should not be applied so rigidly as to have a sclerotic effect on legitimate innovation by the legislature to meet new challenges to the integrity of the system of justice.
[27]Ibid 312–3 [317].
In our opinion, properly understood, there were no constructional choices open. The principle of legality does not operate to displace the clear meaning of the statutory text.[28] Bearing in mind the caution that attempts at reformulation of the statutory language are unlikely to provide much illumination, we think that the expression systemic and continuing when applied to criminal activity generally would not embrace criminal activity which is merely opportunistic, impulsive or spontaneous, or of short duration or limited incidence. Rather, systemic and continuing connotes coordinated criminal activity which is ongoing or persistent.
[28]Neither the applicant nor VLA made any submission as to the possible application of the Charter to the matter. There is no reason to think that it would produce a different result. Section 32(1) requires statutory interpretation to produce a result consistent with the purpose of the provision in question. If the provision is capable of only one meaning, s 32(1) has no effect: see Slaveski v Smith (2012) 34 VR 206, 215 [24] (Warren CJ, Nettle and Redlich JJA).
The proper defendant
As we have mentioned, the originating motion names the ‘Supreme Court of Victoria (in its capacity under the Major Crime (Investigative Powers) Act 2004)’ as defendant.
At the commencement of the hearing in this Court, we raised with counsel for the applicant whether the Supreme Court was properly named as the defendant in the application for judicial review, given that the named defendant would also be the Court of decision. Counsel was given a week to formulate a written response.
In the event, written submissions were received, in which counsel for the applicant contended that ‘the preferable nomenclature’ was to continue to name the Supreme Court as defendant. Not without some reluctance, we accept that contention.
The Act permits an application for a CPO to be made to ‘the Supreme Court’, and permits ‘the Supreme Court’ to determine the application and make the CPO[29] (although, as we have mentioned, we accept that a judge of the Supreme Court deciding whether to grant or refuse a CPO under the Act is exercising an administrative, not a judicial, function). Significantly, r 56.01 of the Supreme Court (General Civil Procedure) Rules 2015 provides (so far as relevant):
[29]See ss 5, 8 and 9 of the Act. See also ss 3D, 7, 10, 11, 12, 12A, 12B, 12C, 14, 15, 16, 17, 18, 20, 33, 41 and 49.
(1) Subject to any Act, the jurisdiction of the Court to grant any relief or remedy in the nature of certiorari, mandamus, prohibition or quo warranto shall be exercised only by way of judgment or order (including interlocutory order) and in a proceeding commenced in accordance with these Rules.
(2) The proceeding shall be commenced by originating motion in Form 5G naming as defendant—
(a) a person, if any, having an interest to oppose the claim of the plaintiff; and
(b) the court, tribunal or person in respect of whose exercise of jurisdiction or failure or refusal to exercise jurisdiction the plaintiff brings the proceeding.
(3) A person named as defendant in accordance with paragraph (2)(b) who is sued in the capacity of a judicial or public authority or as the holder of a public office shall be described in the originating motion by the name of that authority or the name of that office.
In Lazarescu v County Court of Victoria,[30] a judge of the County Court had been named as a defendant in proceedings seeking relief in the nature of certiorari. That course was deprecated by Beach J, who, having set out r 56.01(2) and (3), observed:[31]
If one accepts that a judge of the County Court does not have an interest in opposing a plaintiff’s claim in a situation such as the present as I do, then the applicable rule is subr 2(b). That rule is complied with by naming as defendant the County Court of Victoria, it being the court in respect of whose exercise of jurisdiction the plaintiff brings the proceeding.
In the circumstances, I order that the title to the proceeding be amended so that the name of the first named defendant shall read, ‘The County Court of Victoria’. …
[30](1997) 92 A Crim R 336.
[31]Ibid 347. See also Director of Public Prosecutions v Denysenko [1998] 1 VR 312, 314; Mark Aronson, Matthew Groves and Greg Weeks, Judicial Review of Administrative Action and Government Liability (Lawbook Co, 6th ed, 2017) 856 [12.120].
Given the terms of r 56.01(2)(b) — and no matter how odd it may appear as a matter of first impression — in our opinion it is proper to name the Supreme Court as defendant in a proceeding for judicial review with respect to a judge exercising (or refusing or failing to exercise) jurisdiction under the Act. In reaching that conclusion, we have proceeded on the basis that the power to make a CPO is vested in the Court, rather than in the individual judge acting persona designata.[32] That matter was not the subject of argument, and we express no concluded view on the point.
[32]See generally, Hilton v Wells (1985) 157 CLR 57, 72 (Gibbs CJ, Wilson and Dawson JJ); Love v Attorney-General (NSW) (1990) 169 CLR 307, 321–2 (Mason CJ, Brennan, Dawson, Toohey and Gaudron JJ).
Final matters
In the course of the hearing, the Court asked whether it was appropriate to include the applicant’s rank in the title to the proceedings, and queried the failure of the Attorney-General to seek to intervene in the proceedings.
Ultimately, the applicant conceded that the inclusion of the plaintiff’s rank in the title to the proceedings ‘is not appropriate’ and accordingly sought leave to amend the title to remove the plaintiff’s rank. That concession was properly made. We will make an order amending the title to the proceeding by deleting the plaintiff’s rank.[33]
[33]See Supreme Court Act 1986, s 10(3).
We were not informed why the Attorney-General had not sought to intervene,[34] but wish to make clear that it would have been appropriate for him to have done so.
[34]In an affidavit affirmed 27 February 2017, Trieu Long Huynh, a lawyer in the employ of VLA, stated that at a directions hearing on 28 September 2016, the judge ‘noted that the Court would be assisted by a contradictor’; and that, on 8 December 2016, ‘VLA was contacted by the Victorian Government Solicitor’s Office (‘VGSO’) to see if we could undertake this role’. Mr Huynh further states that, ‘[o]n 16 December 2016, VLA advised VGSO that we would do so’.
Conclusion
We would grant leave pursuant to s 17B(3) of the Supreme Court Act 1986 to argue the question directed by the second judge to be argued before this Court.[35]
[35]See [13] above.
The question directed to be argued before this Court should be answered ‘no’. Section 3AA(2)(b) of the Act does not require the relevant organised crime offence to be on foot at the time that an application for a CPO is made.
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