Moore v Commonwealth Director of Public Prosecutions

[2022] NSWSC 1458

Supreme Court

New South Wales

Medium Neutral Citation:

Moore v Commonwealth Director of Public Prosecutions [2022] NSWSC 1458

Hearing dates:

23 September 2022

Date of orders:

26 October 2022

Decision date:

26 October 2022

Jurisdiction:

Common Law

Before:

Chen J

Decision:

(1) Order, pursuant to rule 13.4 (1) of the Uniform Civil Procedure Rules 2005, that the First Cross-Summons filed 1 March 2022 be dismissed.

(2) Order that the plaintiff pay the Commonwealth DPP’s costs of, and incidental to, its notice of motion filed 31 March 2022.

(3) Order that the plaintiff pay the Commonwealth DPP’s costs of the proceedings.

(4) In relation to the notice of motion by Mr Moore filed 26 April 2022:

(a) paragraphs 1, 3 and 4 of that notice of motion are dismissed, with order 2 stood over for directions before the Registrar on a date to be advised by the Court.

(b) order that the plaintiff pay the Commonwealth DPP’s costs of, and incidental to, that notice of motion.

Catchwords:

ADMINISTRATIVE LAW – judicial review – where the plaintiff commenced a number of private prosecutions – where the Commonwealth Director of Public Prosecutions took over and discontinued the prosecutions – where the Magistrate granted leave for the Commonwealth Director of Public Prosecutions to do so – whether there was a decision by the Magistrate – consideration of circumstances in which prerogative writs will issue – whether the Commonwealth Director of Public Prosecutions was obliged to provide reasons for taking over and discontinuing the prosecutions – First Cross-Summons summarily dismissed

Legislation Cited:

Act Interpretation Act 1901 (Cth)

Aviation Transport Security Act 2004 (Cth)

Crimes Act 1900 (NSW)

Crimes Act 1914 (Cth)

Criminal Procedure Act 1986 (NSW)

Director of Public Prosecution Act 1986 (NSW)

Director of Public Prosecutions Act 1983 (Cth)

Jurisdiction of Courts (Cross Vesting) Act 1987 (Cth)

Uniform Civil Procedure Rules 2005 (NSW)

Weapons Prohibition Act 1998 (NSW)

Cases Cited:

AAI Limited v Chan [2021] NSWCA 19

AAI Limited v McGiffen (2016) 77 MVR 348

Allianz Australia Insurance Ltd v Kerr (2012) 83 NSWLR 302

AngloAmerican Investments Pty Ltd v Deputy Commissioner of Taxation [2017] NSWCA 17

Australian Rail, Tram and Bus Industry Union v Busways Northern Beaches Pty Ltd (No 2) (2022) 316 IR 258; [2022] FCAFC 55

Craig v South Australia (1995) 184 CLR 163

CSR Limited v Ewins [2020] NSWSC 511

Dalton v Deputy Federal Commissioner of Taxation (1986) 160 CLR 246, 249-250; [1986] HCA 15

Dey v Victorian Railways Commissioners (1949) 78 CLR 62

General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125

Gouriet v Union of Post Office Workers [1978] AC 435

Grey v Health Insurance Commission [2001] FCA 1398

Hassan v Sydney Local Health District [2022] NSWSC 954

Hopkins v Governor-General of Australia (2013) 280 FLR 49; [2013] NSWCA 365

Hossain v Minster for Immigration and Border Protection (2018) 264 CLR 123

Hot Holdings Pty Ltd v Creasy (1996) 185 CLR 149; [1996] HCA 44

Jago v District Court of NSW (1989) 168 CLR 23

Kirk v Industrial Court of NSW (2010) 239 CLR 531

Kyriazis v The Magistrates’ Court of Victoria at Heidelberg [2014] VSC 411

Likiardopoulos v The Queen (2012) 247 CLR 265

Maxwell v The Queen (1995) 184 CLR 501

Miller v Commonwealth Director of Public Prosecutions (2005) 142 FCR 394; [2005] FCA 482

Minister for Resources and Energy v Gold and Copper Resources Pty Ltd (2015) 89 NSWLR 134 at [72]; [2015] NSWCA 113

Moore v Director of Public Prosecutions (NSW) [2021] NSWSC 587; (2021) 391 ALR 336

Price v Ferris (1994) 34 NSWLR 704

R (Gujra) V Crown Prosecution Service [2013] 1 AC 484

R v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust) Ltd (1949) 78 CLR 389

R v St Lawrence’s Hospital Statutory Visitors; ex parte Pritchard [1953] 1 WLR 1158

Raymond v Attorney-General [1982] QB 839

Re Refugee Review Tribunal; ex parteAala (2000) 204 CLR 82

Sasterawan v Morris (2005) 69 NSWLR 547

Simmons v NSW Trustee and Guardian [2014] NSWCA 405

Ugur v Attorney-General for NSW [2019] NSWCA 86

Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480

Category:

Principal judgment

Parties:

Ian Moore (plaintiff)
Commonwealth Director of Public Prosecutions (defendant)

Representation:

Counsel:
Self-represented (plaintiff)
M Varley (defendant)

Solicitors:
Self-represented (plaintiff)
Office of the Commonwealth Director of Public Prosecutions (defendant)

File Number(s):

2021/320939

JUDGMENT

1. The events giving rise to the dispute between the parties have their genesis in two charges laid against Mr Moore in 2019: possessing a prohibited weapon without a permit, contrary to s 7(1) of the Weapons Prohibition Act 1998 (NSW) and carrying a prohibited item through a screening point, contrary to s 55(3) of the Aviation Transport Security Act 2004 (Cth). The underlying conduct alleged related to Mr Moore being in possession of a knife (described as a “DRS 325s Tactical Survival Folding knife”) and carrying it through a security screening point at Tamworth Airport.

2. A Local Court Magistrate convicted Mr Moore of those offences, but Mr Moore appealed: in relation to the first charge, the conviction was quashed by order of the District Court on 22 October 2019; in relation to the second charge, by order of the District Court on 16 March 2020, the charge was proved but pursuant to s 19B(1)(c) of the Crimes Act 1914 (Cth) was dismissed.

3. Since that time, Mr Moore has instituted a series of private prosecutions against a number of police officers, connected with the prosecution of him, alleging that they committed a range of offences, including ones under the Crimes Act 1914 (Cth).

4. In very broad terms, the present proceedings relate to the decision of the Commonwealth DPP (‘the CDPP’) to take over, and discontinue, the prosecution of those officers in relation to the Commonwealth charges: Mr Moore filed, on 1 March 2022 the “First Cross-Summons” seeking – essentially – prerogative relief in connection with “decisions” of the Local Court and orders that would require the CDPP to provide reasons for the decision to take over, and discontinue, the Commonwealth offences.

5. On 31 March 2022, the CDPP filed a notice of motion seeking summary relief: that the First Cross-Summons be dismissed or, alternatively, struck out. Mr Moore has responded to that notice of motion by filing, on 28 April 2022, his own notice of motion: by that notice of motion, Mr Moore (relevantly) sought dismissal of the CDPP’s notice of motion (including the evidence in support of it), as well as seeking a review of a decision of the Registrar of this Court.

Short statement of facts

6. In view of the primary issue to be decided – in short, the viability of Mr Moore’s action against the CDPP – it is necessary to only refer to a confined number of background facts.

7. In 2020, Mr Moore commenced private prosecutions against three New South Wales police officers. The New South Wales DPP (‘the NSW DPP’) took over those prosecutions, and discontinued them. Mr Moore challenged the NSW DPP’s decision, but that challenge was unsuccessful: Cavanagh J dismissed Mr Moore’s summons on 12 May 2021: (2021) 391 ALR 336; [2021] NSWSC 587.

8. Subsequent to the orders made by Cavanagh J, in the period August to October 2021, Mr Moore arranged for a number of court attendance notices to issue against four members of the New South Wales Police Force. It is unnecessary to refer to those officers by name, or to the various charges laid against them.

9. A number of charges in the court attendance notices were withdrawn on 9 November 2021. Notwithstanding, both Commonwealth and State offences remained – viz., offences under the Crimes Act 1914 (Cth), and the Crimes Act 1900 (NSW).

10. On 17 December 2021, the “matter” was before the Local Court at Tamworth. At that time, the Court was advised that Mr Moore had “elected” such that the matters were to proceed on indictment in the District Court. (It may be that the election occurred in November 2021, but nothing turns on this). A solicitor representing the CDPP indicated, in substance, that the CDPP required material from Mr Moore in order to determine “whether or not to take over the proceedings”. A number of directions were made by the Magistrate, including a direction that Mr Moore provide the brief of evidence to the CDPP by 25 January 2022.

11. On 27 January 2022, the CDPP wrote to Mr Moore advising him that the Director had determined, pursuant to s 9(5) of the Director of Public Prosecutions Act 1983 (Cth) (the ‘CDPP Act’), that the Director would “take over and discontinue the prosecutions instituted by you against” the NSW police officers for the Commonwealth offences. The letter also advised Mr Moore that the prosecution of the NSW offences would need to be referred to the NSW DPP, and that a prosecutor from the CDPP would appear at Tamworth Local Court on 28 January 2022 and “seek leave to discontinue the Commonwealth offences”.

12. On 28 January 2022, the court attendance notices were before Magistrate Thompson in the Local Court. The solicitor for the CDPP advised the Court that the CDPP had taken over the proceedings for the Commonwealth offences, and had made a decision to discontinue them: leave was sought to withdraw the Commonwealth charges, and the Commonwealth charges were then “withdrawn and dismissed”. (There is an issue about what, in substance, occurred on that occasion, so it will be necessary to examine some of the detail later in these reasons: see [40]ff, below).

13. A consequence – to express it neutrally, at the present time – of the above events is that only State offences remained against two police officers.

14. On 10 February 2022, the NSW DPP wrote to Mr Moore advising that the Director was “considering taking over” the prosecution of the NSW offences.

15. On 18 February 2022, the prosecutions for the State offences against the two police officers were before the Local Court. The proceedings on that day were adjourned to 25 March 2022, in order for the NSW DPP to have time to consider whether to take over the proceedings.

16. On 1 March 2022, the NSW DPP wrote to the Registrar of Tamworth Local Court, advising that, pursuant to ss 9(1) and 9(4)(b) of the Director of Public Prosecutions Act 1986 (NSW) the director had “taken over each of [the NSW offences] and I decline to proceed further in each prosecution”.

17. On 25 March 2022, the proceedings involving the State charges against two police officers were listed in the Local Court – and those charges against them were withdrawn and dismissed.

The First Cross-Summons: a brief explanation of the relief sought by Mr Moore

18. Mr Moore seeks prerogative relief (prayers 1 and 2 of the First Cross-Summons) in connection with two “decisions”: the first is of the Magistrate on 28 January 2022 – when the Commonwealth offences were discontinued; the second is of the Magistrate on 18 February 2022 – when the State offences were discontinued. The balance of the relief sought (prayers 3-6 inclusive) were directed to requiring the CDPP to provide reasons for its decision to discontinue the prosecutions (no order is sought in connection with the NSW DPP).

19. More specifically, in relation to prerogative relief, Mr Moore seeks:

1. a writ of prohibition “to cease proceedings in the local Court and for orders of certiorari and mandamus until the related matter before the Supreme Court has been finalised” (prayer 1).

2. An order in the nature of certiorari quashing the decisions of the Magistrate made on 28 January 2022 and 18 February 2022 (prayer 2).

20. It should be noted, however, that the First Cross-Summons only identified the CDPP as a party to it. It does not name the NSW DPP – the significance being that, as I later explain, the decision made on 18 February 2022 was one only relating to the State charges.

Summary relief: principles

21. The power to grant summary relief is contained in r 13.4 of the Uniform Civil Procedure Rules 2005 (NSW) (the ‘UCPR’). It provides:

(1) If in any proceedings it appears to the court that in relation to the proceedings generally or in relation to any claim for relief in the proceedings—

(a) the proceedings are frivolous or vexatious, or

(b) no reasonable cause of action is disclosed, or

(c) the proceedings are an abuse of the process of the court,

the court may order that the proceedings be dismissed generally or in relation to that claim.

(2) The court may receive evidence on the hearing of an application for an order under subrule (1).

22. A purpose of r 13.4 is to “save the defendant from the cost, delay and vexation in having to defend clearly untenable proceedings” and to protect “the interests of the public in not having scarce judicial resources wasted in dealing with frivolous applications”: Ugur v Attorney-General for NSW [2019] NSWCA 86 at [70] (White JA, Meagher and Brereton JJA agreeing).

23. The relevant principles that govern summary relief are well-established: Dey v Victorian Railways Commissioners (1949) 78 CLR 62, 84-85; General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125, 128-129 (‘General Steel’). In General Steel, Barwick CJ put the matter thus (at 129):

The test to be applied has been variously expressed; ‘so obviously untenable that it cannot possibly succeed’; ‘manifestly groundless’; ‘so manifestly faulty that it does not admit of argument’; ‘discloses a case which the Court is satisfied cannot succeed’; ‘under no possibility can there be a good cause of action’; ‘be manifest that to allow them’ (the pleadings) ‘to stand would involve useless expense’.

At times the test has been put as high as saying that the case must be so plain and obvious that the court can say at once that the statement of claim, even if proved, cannot succeed; or ‘so manifest on the view of the pleadings, merely reading through them, that it is a case that does not admit of reasonable argument’; ‘so to speak apparent at a glance’.

24. The Court of Appeal summarised the relevant principles in Simmons v NSW Trustee and Guardian [2014] NSWCA 405 at [196]-[200] (per Gleeson JA, Beazley P and Barrett JA agreeing):

196.It is not in dispute that ‘great care must be exercised to ensure that under the guise of achieving expeditious finality a plaintiff is not improperly deprived of his opportunity for the trial of his cause by the appointed tribunal’: General Steel Industries Inc v Commissioner for Railways (NSW) (General Steel) [1964] HCA 69; 112 CLR 125 at 130 (Barwick CJ).

197.More recently in Agar v Hyde [2000] HCA 41; 201 CLR 552, Gaudron, McHugh, Gummow and Hayne JJ said at [57]:

‘Ordinarily, a party is not to be denied the opportunity to place his or her case before the court in the ordinary way, and after taking advantage of the usual interlocutory processes. The test to be applied has been expressed in various ways, but all of the verbal formulae which have been used are intended to describe a high degree of certainty about the ultimate outcome of the proceeding if it were allowed to go to trial in the ordinary way.’

198.Subsequent authorities have reaffirmed that formulation: see Batistatos v Roads and Traffic Authority (NSW) [2006] HCA 27; 226 CLR 256 at [46]; Spencer v Commonwealth at [24].

199.In Shaw v New South Wales [2012] NSWCA 102, Barrett JA (with whom Beazley, McColl, Macfarlan JJA, and McClellan CJ at CL agreed) expressed the test for summary dismissal as follows at [32]:

‘The question is … whether the claims in question are so obviously untenable or groundless that there is 'a high degree of certainty' that they will fail if allowed to go to trial; and whether this is one of the 'clearest of cases' in which the court may accordingly intervene to prevent the claims being litigated.’

200.Further, that assessment is to be made taking the plaintiff's case at its highest. The party applying for summary dismissal must accept the truth of all allegations in the statement of claim, and the ranges of meaning which the assertions of fact in the statement of claim are capable of bearing: Penthouse Publications Ltd v McWilliam (Court of Appeal (NSW), Priestley and Meagher JJA and Wardell AJA, 15 March 1991, unrep); Agius v New South Wales [2001] NSWCA 371 at [24].

25. The power to strike out a pleading, in whole or part, is contained in r 14.28 of the UCPR. It provides:

(1) The court may at any stage of the proceedings order that the whole or any part of a pleading be struck out if the pleading—

(a) discloses no reasonable cause of action or defence or other case appropriate to the nature of the pleading, or

(b) has a tendency to cause prejudice, embarrassment or delay in the proceedings, or

(c) is otherwise an abuse of the process of the court.

(2) The court may receive evidence on the hearing of an application for an order under subrule (1).

26. Where a deficiency in a pleaded claim is curable by amendment, the Court may strike out the proceeding. However, as the proceeding by Mr Moore was commenced by Summons, and not a Statement of Claim, r 14.28 of the UCPR does not strictly apply: that is because Part 14 applies to “proceedings commenced by statement of claim and to proceedings in which a statement of claim has been filed”: r 14.1 of the UCPR; Hassan v Sydney Local Health District [2022] NSWSC 954 at [81] (Walton J).

27. In the circumstances of this case, no question about whether Mr Moore should be given leave to re-plead arises (or the source of the power to permit that course when a summons has been filed): that is because, as I explain later in these reasons, this is an appropriate case for summary dismissal of the First Cross-Summons.

The statutory provisions: the DPP Act 1983 (Cth)

28. It is necessary, in light of arguments raised by the CDPP, to make mention of the CDPP Act – specifically, reliance was placed upon s 9(5) of that Act, in aid of a submission that the Local Court made no decision when the Commonwealth charges were discontinued: see [41]ff, below.

29. The CDPP Act creates the “Office”, known as “the Office of the Director of Public Prosecutions”, and also a Director of that Office: ss 5(1) and (2).

30. The functions of the Director are contained within s 6 of the CDPP Act, and include (relevantly here): to institute, and carry on, the prosecution “on indictment for indictable offences against the laws of the Commonwealth” and this is so “whether or not instituted by the Director”: ss 6(1)(a) and (b); and to institute, and carry on, proceedings “for summary conviction of persons in respect of offences against the laws of the Commonwealth”, and this is so “whether or not instituted by the Director”: ss 6(1)(d) and (e).

31. Section 9 of the CDPP Act sets out the powers of the Director. Relevantly, s 9(5) of the CDPP Act provides:

For the purposes of the performance of his or her functions, the Director may take over a proceeding that was instituted or is being carried on by another person, being a proceeding:

(a)for the commitment of a person for trial in respect of an indictable offence against a law of the Commonwealth; or

(b) for the summary conviction of a person in respect of an offence against a law of the Commonwealth;

and where the Director takes over such a proceeding, he or she may decline to carry it on further.

32. Finally, s 10(2) of the CDPP Act should be noted. It provides a form of non-derogation:

Nothing in this Act (other than subsection 9(5)) affects the right of a person to institute or carry on proceedings for:

(a) the commitment of persons for trial in respect of indictable offences against the laws of the Commonwealth; or

(b) the summary conviction of persons in respect of offences against the laws of the Commonwealth.

33. As I have mentioned, the CDPP relied upon the power in s 9(5) to argue that it was the Director, and not the Local Court Magistrate, who made the relevant decision that had the legal effect of terminating the prosecution for the Commonwealth charges.

Private prosecutions: a brief overview

34. The right to bring a private prosecution is of some antiquity: see R (Gujra) V Crown Prosecution Service [2013] 1 AC 484 at [10]-[15] (Lord Wilson) and [88]-[90] (Lord Mance) (‘Gujra’) where the history is summarised. In NSW the right rests on a statutory basis: ss 14, 49 and 174 of the Criminal Procedure Act 1986 (NSW); Sasterawan v Morris (2005) 69 NSWLR 547, 553 [22] (Basten JA, Grove and Hidden JJ agreeing).

34. The power of a prosecuting authority, such as the CDPP, to take over the conduct of a prosecution commenced by a private prosecutor is well established, and has been recognised as extending to the power to discontinue them once that step has been taken: Gouriet v Union of Post Office Workers [1978] AC 435, 487 and 521; Raymond v Attorney-General [1982] QB 839, 846 (‘Raymond’); Gujra at [15] and [94]. Here, the power to take both steps is found in s 9(5) of the CDPP Act.

35. Generally speaking, s 9(5) of the CDPP Act reflects two objectives that underpin powers of that kind: first, to ensure that, in taking over proceedings, particular private prosecutions (for example, those with public interest), are in fact prosecuted with the assistance and resources of the Director: Raymond at 847; Gujra at [93]-[94]; secondly, to ensure that some private prosecutions are not permitted to continue – for example, in situations where improper purposes have seen charges laid, or they are wholly devoid of merit: Raymond at 847; Miller v Commonwealth Director of Public Prosecutions (2005) 142 FCR 394; [2005] FCA 482 at [24]; Gujra at [93]-[94].

Summary relief: prerogative relief

37. The CDPP, as I earlier mentioned, moves for summary relief. In relation to prerogative relief, it has argued, in substance, that the relief sought by Mr Moore proceeds upon fundamental misconceptions and, further, there are a range of discretionary matters (including futility) that warrant the order that it seeks. Importantly, it argues that, as a matter of statutory construction, no decision was made by the Magistrate in connection with the withdrawal of the Commonwealth offences; rather, it argued, that occurred in consequence of the power exercised by the Director under s 9(5) of the CDPP Act, and was not conditioned on any requirement for a court to grant the CDPP leave for them to be withdrawn.

38. In my view, Mr Moore’s claim for prerogative relief should be summarily dismissed, for the following reasons: first, because there was no decision made by the Magistrate – with the consequence that prerogative relief in the nature of certiorari does not lie; secondly, even if there was a “decision” made by the Magistrate, no basis exists for the issue of any writ; and, thirdly, it would be futile to grant any remedy.

39. The CDPP has demonstrated, in my view, the high degree of certainty about the ultimate outcome so as to justify the principal order it seeks.

No decision by the Magistrate

40. Certiorari quashes the legal consequences of a decision: “[i]t cannot be too clearly understood that the remedy by way of certiorari only lies to bring up to this court and quash something which is a determination or a decision”: R v St Lawrence’s Hospital Statutory Visitors; ex parte Pritchard [1953] 1 WLR 1158, 1166 (Parker J). The same point was made in Hot Holdings Pty Ltd v Creasy (1996) 185 CLR 149; [1996] HCA 44 at 159 (Brennan CJ, Gaudron and Gummow JJ):

Thus, for certiorari to issue, it must be possible to identify a decision which has a discernible or apparent legal effect upon rights. It is that legal effect which may be removed for quashing.

41. Here there was no decision, and thus no order to quash. That is because the decision to withdraw the Commonwealth offences was made by the CDPP and that decision was legally effective to bring them to an end, as the CDPP argued.

42. The CDPP’s argument was that, once the CDPP decides to “decline to carry on a proceeding”, the CDPP may inform the Court of that decision, and those steps are sufficient to dispose of the proceeding (submissions at [40]). The CDPP relied upon Cavanagh J’s decision in Moore v Director of Public Prosecutions (NSW) (2021) 391 ALR 336; [2021] NSWSC 587 (‘Moore’), in support of its position.

43. The starting point are the words of s 9(5) of the DPP Act – “decline to carry it on further”. The words should be given their ordinary and plain meaning: in my view the words mean to cease to prosecute the offence or to terminate that prosecution – with the consequence that it is the decision of the CDPP that effects that outcome, not any decision of the Court.

44. That construction is, in my view, supported by three matters.

45. First, it is consistent with what was said in Miller. In that case, in the context of s 9(5) of the DPP Act, Weinberg J said (at [24]):

In my view the subsection is intended to operate as a safeguard. There are cases, fortunately few, where private litigants have invoked the processes of the criminal law for wholly improper purposes. There are also cases where private prosecutions that are entirely misconceived have been brought. It may be oppressive, and is likely to be costly, to require a defendant to such a proceeding to take steps in court to have the charges dismissed. Section 9(5) permits the Director, who has the responsibility for ensuring compliance with the Prosecution Policy, to step in and prevent this form of harassment.

46. And, later, when addressing the Prosecution Policy of the Commonwealth, Weinberg J noted (at [27]) that “the Director has always proceeded upon the assumption that s 9(5) enabled him to terminate a private prosecution that he considers should not be permitted to continue. In my opinion, that assumption is warranted”. See also Moore at [43]-[44].

47. Secondly, the construction is consistent with the principle that “courts do not purport to exercise control over the institution or continuation of criminal proceedings, save where it is necessary to do so to prevent an abuse of process or to ensure a fair trial”: Maxwell v The Queen (1995) 184 CLR 501, 512 Dawson and McHugh JJ) (‘Maxwell’); Jago v District Court of NSW (1989) 168 CLR 23, 39 and 54 (Brennan J) (‘Jago’). In Maxwell, Gaudron and Gummow JJ (at 534) expressed the matter in these terms:

The integrity of the judicial process – particularly, its independence and impartiality and the public perception thereof – would be compromised if the courts were to decide or were to be in any way concerned with decisions as to who is to be prosecuted and for what.

48. Similar remarks were made in Price v Ferris (1994) 34 NSWLR 704. In that case, Kirby P, in the context of considering the Director of Public Prosecution Act 1986 (NSW), said (at 708): “Decisions to commence, not to commence or to terminate a prosecution are made independently of the courts”.

49. Thirdly, the construction is consistent with the principle that decisions of prosecuting bodies, in the prosecution process, are insusceptible to judicial review: Jago at 39 and 54; Maxwell at 534; Likiardopoulos v The Queen (2012) 247 CLR 265, 269 [2]-[3] (French CJ) and 280 [37] (Gummow, Hayne, Crennan, Kiefel and Bell JJ). That principle is premised on the ‘prosecutorial discretion’ – viz., “who is to be prosecuted and for what” – being vested in the Director (or prosecuting body), and not the Court: Maxwell at 534.

50. The position is not otherwise because there was an interchange between those representing the CDPP and the Magistrate where, in short, the CDPP was given “leave” of the Court to take over the Commonwealth charges: no leave was required, as the power existed by virtue of s 9(5) of the CDPP Act. Nor does a contrary outcome result from the fact that those representing the CDPP sought the “leave” of the Court to withdraw the charges: in the circumstances, no leave was required; again, the power existed by virtue of the s 9(5) of the CDPP Act.

51. It follows, in my view, as the CDPP submitted, the Magistrate made no decision; accordingly, certiorari does not lie against the Magistrate in connection with what occurred on 28 January 2022.

No basis for prerogative relief is available

Prohibition not available

52. Mr Moore also sought “prohibition” (prayer 1). In my view, a writ of prohibition is not available.

53. Prohibition issues to prohibit some act or omission that would be illegal (viz., ultra vires, in the sense of excess of power) and, when made, such order operates prospectively, not retrospectively: Grey v Health Insurance Commission [2001] FCA 1398 at [6] (Finkelstein J); Australian Rail, Tram and Bus Industry Union v Busways Northern Beaches Pty Ltd (No 2) (2022) 316 IR 258; [2022] FCAFC 55 at [95]. It thus lies for actual or threatened excess of power.

54. Here, no excess of power has been identified, or is identifiable: assuming, favourably to Mr Moore (which I am required to do, on an application of this kind), that the granting of leave to withdraw the charges by the Magistrate was a necessary condition for that to occur, then plainly a decision made would be within power. Furthermore, on the assumption previously made, a decision by the Magistrate was not merely threatened, but in fact made: there is, therefore, nothing to prohibit. Finally, as the CDPP submitted, to the extent that Mr Moore sought prohibition “to cease proceedings in the Local Court”, the proceedings have already been discontinued: again, there is nothing to prohibit, and an order would thus not only be futile, but unavailable.

Certiorari not available

55. Mr Moore also seeks an order in the nature of certiorari to quash the decision of the Magistrate made on 28 January 2022. I have earlier concluded that it does not lie: see [40]-[51], above.

56. The function of certiorari was explained in Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480, 492 [25] (French CJ, Crennan, Bell, Gageler and Keane JJ); (‘Wingfoot’):

…is to remove the legal consequences or purported legal consequences of an exercise or purported exercise of power.  Thus, an order in the nature of certiorari is available only in respect of an exercise or purported exercise of power which has, at the date of order, an ‘apparent legal effect’.

57. The remedy is available for jurisdictional error: Craig v South Australia (1995) 184 CLR 163, 175-176 (Brennan, Deane, Toohey, Gaudron and McHugh JJ); Kirk v Industrial Court of NSW (2010) 239 CLR 531, 571-572 [66]-[67]. It is also available where there is an error of law on the face of the record: Wingfoot at [26]. Should either error be established, an order in the nature of certiorari can be made so as to remove the legal consequences or purported legal consequences of an exercise or purported exercise of power.

58. In my view, there is no basis for this remedy to issue – even if there was a “decision” of the Magistrate (that is, even if it be assumed that that the granting of leave to withdraw the charges by the Magistrate was a necessary condition for that to occur). That is because it is inconceivable that any error (whether on the face of the record or jurisdictional) arises from the decision to grant that leave once the Court had been advised that the CDPP had taken over, and intended to discontinue, the prosecution of the Commonwealth offences. If, consistent with the principles earlier identified (see [47]-[49], above), the decision – viz., “who is to be prosecuted and for what” – is not for the Court, then no error could possibly arise in the circumstances that presented here: the Court was told, at an early point, that the CDPP was considering taking over the prosecution and, once provided with the material, in fact did. At that point, if leave were necessary the only outcome that could follow would be to grant that leave. No issue of abuse of process was raised by Mr Moore nor was it raised in the summons (nor, in my view, could it be raised) and the circumstances did not raise any question about a “fair trial”: see the authorities in [47], above.

59. Whilst jurisdictional error can be established by any admissible evidence, error of law within jurisdiction is confined to identification of error on the face of the record: Allianz Australia Insurance Ltd v Kerr (2012) 83 NSWLR 302, 307 [15] (Basten JA); [2012] NSWCA 13; AAI Limited v McGiffen [2016] NSWCA 229; (2016) 77 MVR 348 at [45] and [69] (Meagher, Simpson and Payne JJA) (‘McGiffen’); AAI Limited v Chan [2021] NSWCA 19 at [45]-[46] (Leeming JA). Where the remedy sought is in the nature of a writ of certiorari, the “face of the record includes the reasons expressed by the... Tribunal for its ultimate determination”: s 69(4) of the Supreme Court Act. Assuming, for present purposes, that part of the transcript constitutes the reasons of the Magistrate, no error arises, or could arguably arise. A wider consideration of the material does not lead to a different conclusion: there is no identifiable error raised in the summons, or can be reasonably inferred from that which occurred, or was raised by Mr Moore, which could justify a conclusion of jurisdictional error.

60. The issue of prerogative writs is discretionary. Even where error is found – irrespective of whether the error is jurisdictional or confined to an error of law on the face of the record – courts exercising judicial review have residual discretion to withhold relief: Re Refugee Review Tribunal; ex parte Aala (2000) 204 CLR 82 at 89 [5] (Gleeson CJ), 101-110 [43]-[62] (Gaudron and Gummow JJ), 136-7 [145]-[150] (Kirby J), 144 [172] (Hayne J), 156 [217] (Callinan J).

61. In this situation, once the CDPP had decided to withdraw the Commonwealth charges, the critical question is whether “no useful result could ensue” – a question that directs attention to the utility of another hearing: R v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust) Ltd (1949) 78 CLR 389, 400 (‘Ozone Theatres’); Hossain v Minster for Immigration and Border Protection (2018) 264 CLR 123 at [74]. In my view, that question must be answered affirmatively: there is, in my view, no basis upon which it could be suggested that the decision could be anything other than one permitting the withdrawal of the Commonwealth charges. Those matters are clear, and will not change. The point was made by Cavanagh J in Moore at [43]-[44]. It applies with equal force here. Adopting the words of Cavanagh J in Moore at [44]: “There will be no decision for the new Magistrate, before whom the case comes, to determine. In my view making any orders in respect of the suggested decision of the Magistrate is an exercise in futility”.

62. In those circumstances certiorari is unavailable.

Mandamus not available

63. Mandamus is the means through which to enforce the performance of public duties by public authorities. The remedy will not issue except to order the performance of a duty which remains unperformed; the corollary being that, where the duty has been purportedly performed, mandamus will not lie: Kyriazis v The Magistrates’ Court of Victoria at Heidelberg [2014] VSC 411 at [17] and [20] (Williams J).

64. Here, Mr Moore’s argument was that the Magistrate had a duty to hear the application to discontinue the Commonwealth offences, and that the Magistrate did so. In those circumstances, mandamus does not lie for a duty that was actually performed. Further, relief would be futile: see [61], above.

Summary relief: orders requiring the CDPP to provide reasons

65. Mr Moore sought various orders that, in substance, were directed to requiring the CDPP to provide a written statement of reasons for the decision not to continue with the prosecutions.

Rule 59.9 of the UCPR: prayers 3 and 6

66. Prayers 3 and 6 of the First Cross-Summons rely upon r 59.9 of the UCPR to require a statement of reasons from the CDPP. In my view, reliance upon this rule is not available to Mr Moore. I will set out the rule, before explaining why that is so.

The rule

67. Rule 59.9 applies in proceedings for judicial review against a public authority. It provides:

59.9 Special procedure where public authority is defendant.

(1) This rule applies to proceedings for judicial review in which relief is sought in relation to a decision of a public authority.

(2) The plaintiff may, within 21 days of commencing proceedings against a public authority, or within such other time as the court may direct, serve on the public authority a notice requiring the public authority to provide to the plaintiff—

(a)a copy of the decision, and

(b) a statement of reasons for the decision.

(3)A statement of reasons for the decision must—

(a) set out findings on material questions of fact, and

(b) refer to the evidence or other material on which those findings were based, and

(c) explain why the decision was made.

(4) If—

(a) the public authority does not comply with a notice under this rule within 14 days of service, or

(b) the plaintiff has not served a notice within the time prescribed by subrule (2), the plaintiff may apply to the court for an order that the public authority provide the plaintiff with a copy of the decision and a statement of reasons for the decision.

Rule not engaged

68. In my view, reliance upon this rule is not available to Mr Moore in the present circumstances – and no order could be made pursuant to it – for the following reasons:

1. First, the rule is directed to proceedings for judicial review in which relief is sought in relation to a decision of a public authority. That is not the position here: judicial review is sought by Mr Moore against the decisions of a Magistrate: see prayers 1 and 2. The obligation of a judicial officer to provide reasons is not sourced to this rule.

2. Secondly, for the reasons that I have given in relation to prayers 1 and 2, I have concluded that no triable issues arise and that summary dismissal is appropriate. There are, therefore, no proceedings – of any kind – for judicial review. Absent proceedings for judicial review, therefore, the power within this rule is not engaged.

3. Thirdly, in the absence of a basis for a decision of the CDPP to be susceptible to judicial review (see [49], above), no ground exists for a favourable exercise of the discretion to order the provision of a statement of reasons.

4. Fourthly, as the CDPP submitted, r 59.9(4) “does not confer power on the court to order a decision-maker to provide reasons unless, at the time the order is sought and made, the party seeking the order has stated grounds for the relief sought in the summons”: Minister for Resources and Energy v Gold and Copper Resources Pty Ltd (2015) 89 NSWLR 134 at [72] (Sackville A-JA; Ward JA and Bergin CJ in Eq agreeing); CSR Limited v Ewins [2020] NSWSC 511 at [69] (Adamson J). (I add: if this were the only ground upon which an order under this rule was not available, I would be disposed towards simply striking out that part of the First Cross-Summons, rather than dismissing it).

Sections 6(2C)(a) and (b) of the CDPP Act: prayer4

69. Mr Moore next relies upon ss 6(2C)(a) and (b)(i) and (ii) of the CDPP Act as a basis for seeking an order requiring a statement of reasons from the CDPP.

70. In my view reliance upon that provision is misconceived: it provides no basis for the order that is sought. That is apparent from its terms:

Where:

(a) a person has been committed for trial otherwise than in respect of an offence against the laws of the Commonwealth; and

(b) the Director is satisfied:

(i) that the facts or evidence on the basis of which the person was committed for trial disclose the commission of an indictable offence or indictable offences against the laws of the Commonwealth; and

(ii) that, had the person’s committal for trial for the indictable offence or indictable offences been sought on the basis of those facts or that evidence, the person could have been committed for trial for the indictable offence or indictable offences;

the Director may institute a prosecution on indictment of the person for the indictable offence or indictable offences or any of the indictable offences without the person having been examined or committed for trial.

71. Prayer 4 of the First Cross-Summons discloses no triable issue.

Section 25D of the Acts Interpretation Act 1901 (Cth)

72. Mr Moore also relies upon s 25D of the Act Interpretation Act 1901 (Cth) as a basis for seeking an order requiring a statement of reasons from the CDPP. That section, which is headed ‘contents of statements of reasons for decision’, provides:

Where an Act requires a tribunal, body or person making a decision to give written reasons for the decision, whether the expression “reasons”, “grounds” or any other expression is used, the instrument giving the reasons shall also set out the findings on material questions of fact and refer to the evidence or other material on which those findings were based.

73. As the CDPP submitted, and as is clear from the terms of the provision itself, the section is directed to refining the obligation to provide reasons provided by other Acts. It does not create any freestanding right; rather, it applies to a case where the Act “requires a person making a decision to give written reasons for [their] decision”: Dalton v Deputy Federal Commissioner of Taxation (1986) 160 CLR 246, 249-250.

74. Prayer 5 of the First Cross-Summons discloses no triable issue.

Jurisdiction

75. CDPP further submitted that the combined effect of ss 38 and 39(2) of the Judiciary Act 1903 (Cth) is to exclude, from the conferral of federal jurisdiction upon this Court, matters in which a writ of mandamus or prohibition is sought against an officer of the Commonwealth: Hopkins v Governor-General of Australia (2013) 280 FLR 49; [2013] NSWCA 365 at [10] (Basten JA); AngloAmerican Investments Pty Ltd v Deputy Commissioner of Taxation [2017] NSWCA 17 at [61]-[64] (Payne JA). As Payne JA said in that case (at [63]): “…the Supreme Court does not have jurisdiction in matters in which a writ of mandamus or prohibition is sought against an officer of the Commonwealth”.

76. CDPP accepted, however, that it was at least possible for jurisdiction to be conferred – admittedly by a “circuitous route” – under the Jurisdiction of Courts (Cross Vesting) Act 1987 (Cth): nevertheless, the CDPP admitted that “the proceedings are so devoid of merit… rather than exploring that circuitous route, the proceedings should simply be summarily dismissed” (submission [25]).

77. In circumstances where I have already concluded that the proceedings should be summarily dismissed, it is unnecessary to determine whether jurisdiction could be conferred in the way the CDPP suggested. Nevertheless, I would not, in these circumstances, summarily dismiss or strike out those parts of the First Cross-Summons seeking mandamus or prohibition in circumstances where the CDPP has conceded that there is, at least arguably, a basis of conferring jurisdiction.

Orders

78. For the above reasons, I make the following orders:

1. Order, pursuant to rule 13.4 (1) of the Uniform Civil Procedure Rules 2005, that the First Cross-Summons filed 1 March 2022 be dismissed.

2. Order that the plaintiff pay the Commonwealth DPP’s costs of, and incidental to, its notice of motion filed 31 March 2022.

3. Order that the plaintiff pay the Commonwealth DPP’s costs of the proceedings.

4. In relation to the notice of motion by Mr Moore filed 26 April 2022:

1. paragraphs 1, 3 and 4 of that notice of motion are dismissed, with order 2 stood over for directions before the Registrar on a date to be advised by the Court.

2. order that the plaintiff pay the Commonwealth DPP’s costs of, and incidental to, that notice of motion.

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Decision last updated: 26 October 2022