Mountford v Magistrates Court of South Australia
[2006] SASC 184
•27 June 2006
SUPREME COURT OF SOUTH AUSTRALIA
(Full Court: Leave to Appeal)
MOUNTFORD v MAGISTRATES COURT OF SOUTH AUSTRALIA & ANOR
[2006] SASC 184
Judgment of The Full Court
(The Honourable Chief Justice Doyle, The Honourable Justice Perry and The Honourable Justice White)
27 June 2006
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - INFORMATION, INDICTMENT OR PRESENTMENT
CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - WITNESSES - OTHER MATTERS
ADMINISTRATIVE LAW - JUDICIAL REVIEW - PROCEDURE AND EVIDENCE
Application for leave to appeal against a decision of Besanko J dismissing an application for leave to serve a summons for judicial review on the Magistrates Court of South Australia - applicant seeks judicial review of a decision by a Magistrate not to allow examination of witnesses at the committal stage of a prosecution of various sexual offences - whether it is reasonably arguable that Besanko J erred in refusing leave to serve - consideration of whether there is an error of law on the face of the record - consideration of grounds for jurisdictional error – consideration of whether the issues raised by the proposed appeal are of sufficient significance to warrant a grant of leave to appeal - consideration of the issues to be raised by the proposed proceedings for judicial review generally - not arguable that any error was made - leave to appeal refused.
Supreme Court Act 1935 (SA) s 50(1a)(c), s 50(1a)(c)(ii); Supreme Court Rules 1987 (SA) r 94, r 94.03(c)(ii); Summary Procedure Act 1921 (SA) s 106, s 106(1)(b), s 106(2), s 106(3); Criminal Law Consolidation Act 1935 (SA) s 275, s 276; Magistrates Court Act 1991 (SA) s 5; Magistrates Court Rules 1992 (SA) r 20.02, referred to.
Goldsmith v Newman (1992) 59 SASR 404; Pettitt v Dunkley [1971] 1 NSWLR 376; Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247; Perkins v County Court of Victoria and Ors (2000) 2 VR 246; Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex Parte Palme (2003) 216 CLR 212; Housing Commissioner (NSW) v Tatmar Pastoral Co Pty Ltd (1983) 3 NSWLR 378, discussed.
Craig v South Australia (1995) 184 CLR 163; Haydon v Magistrates Court (2003-2004) 87 SASR 448; Papps v Police (2000) 77 SASR 210; R v Keyte (2000) 78 SASR 68; Watson v Anderson (1976) 13 SASR 329; Rowland v Police (2001) 79 SASR 569; Tzeegankoff v The Magistrates Court (1998) 199 LSJS 296; Penfold v Penfold (1981) 144 CLR 311, considered.
MOUNTFORD v MAGISTRATES COURT OF SOUTH AUSTRALIA & ANOR
[2006] SASC 184Full Court: Doyle CJ, Perry and White JJ
DOYLE CJ: A Judge refused an application by the plaintiff for leave to serve judicial review proceedings in which the Magistrates Court was the proposed defendant. The plaintiff applied to the Full Court for leave to appeal against that decision. Leave to appeal is required by s 50(1a)(c) of the Supreme Court Act 1935 (SA) because the decision by the Judge is an interlocutory decision. The application for leave to appeal was considered pursuant to r 94 of the Supreme Court Rules 1987 (SA).
The Court ordered that the application be heard in open court on notice to the Director of Public Prosecutions. At the hearing, the Attorney-General, represented by the Solicitor-General, intervened to support the Director of Public Prosecutions.
The issue is whether it is reasonably arguable that the Judge erred in refusing leave to serve the proceedings, and whether the issue raised by the proposed appeal is of sufficient significance to warrant a grant of leave to appeal to the Full Court.
That requires the Court to consider the issue that the proceedings by way of judicial review would raise.
At the preliminary examination of charges against the plaintiff, the Magistrate refused to grant leave under s 106(2) of the Summary Procedure Act 1922 (SA) (“the SPA”) for certain witnesses to be called for oral examination. The Magistrate was not satisfied that there were “special reasons for doing so”: s 106(2).
The plaintiff challenges the Magistrate’s decision. The plaintiff claims the decision should be quashed because the reasons given by the Magistrate disclose an error of law on the face of the record. Alternatively, the plaintiff claims that the Magistrate failed to exercise the jurisdiction conferred by s 106(2) of the SPA, because the Magistrate misconceived the test to be applied when considering an application under s 106(2), or misunderstood the meaning of the expression “special reasons” to such an extent that the Magistrate did not address the correct issue. The plaintiff claims an order quashing the order committing him for trial. The plaintiff claims, consequentially, a stay of the proceedings on the Information filed in the District Court, and an order remitting the matter to the Magistrates Court for preliminary examination with an order directing the Magistrates Court to order that the witnesses in question be presented for oral examination.
The plaintiff does not deny that on the evidence before the Magistrate there was a sufficient basis for the Magistrate to commit him for trial.
The preliminary examination
Mountford (the plaintiff) is charged with five counts of indecent assault, one count of procuring the commission of an act of gross indecency by a person of the age of 14 years, and two counts of sexual intercourse with a person of the age of 14 years. A is the complainant in relation to each count. The Information first filed alleged that the offences were committed between 27 October 1991 and 31 May 1992. A fresh Information filed a little more than a year after the first Information alleged that the offences occurred between 1 January 1991 and 31 May 1992.
On the material before the Court it appears that A first complained about the plaintiff’s conduct to his mother B (the other witness in question) in 2002, and to the police in 2003.
The prosecution case rests heavily on the evidence of A. Counsel for the plaintiff wished to question A and B. She filed a detailed application (some 15 pages long) identifying the topics on which she wished to question A and B. I will return later to the basis of the application.
The application was made under s 106 of the SPA, which relevantly provides as follows:
106 Taking of evidence at preliminary examination
(1) Where a charge is not admitted by a defendant at a preliminary examination, the following procedure applies:
(a)the prosecutor will tender the statements and other material filed in the Court and the Court will, subject to any objections as to admissibility upheld by the Court, admit them in evidence;
(b)the prosecutor will call a witness whose statement has been filed in the Court for oral examination if—
(i)the defence has given notice, in accordance with the rules, that it requires production of that witness; and
(ii) the Court grants leave to call that witness for oral examination;
(c)the prosecutor may, by leave of the Court, call oral evidence in support of the case for the prosecution;
(d) the defendant may give or call evidence;
(e)the prosecutor may call evidence in rebuttal of evidence given for the defence.
(2) The Court will not grant leave to call a witness for oral examination under subsection (1) unless it is satisfied that there are special reasons for doing so.
(3) In determining whether special reasons exist for granting leave to call a witness for oral examination, the Court must have regard to—
(a)the need to ensure that the case for the prosecution is adequately disclosed; and
(b) the need to ensure that the issues for trial are adequately defined; and
(c)the Court's need to ensure (subject to this Act) that the evidence is sufficient to put the defendant on trial; and
(d) the interests of justice,
but if the witness is the victim of an alleged sexual offence or a child under the age of 12 years, the Court must not grant leave unless satisfied that the interests of justice cannot be adequately served except by doing so.
These provisions have been in force for some years now. They are part of a statutory scheme under which preliminary examinations usually proceed on the basis of statements in writing without oral examination or cross-examination. The statutory scheme was considered in some detail by this Court in Goldsmith v Newman (1992) 59 SASR 404, a decision which has been followed and applied in this State.
The Magistrate refused to grant leave for A and B to be called for oral examination. The Magistrate’s reasons are brief, running to five paragraphs only. He referred to the statutory framework, and to the witnesses in relation to whom the application was made. In these proceedings the application is now confined to A and B. The Magistrate then said:
I am aware of the responsibilities that are placed upon the court; those responsibilities are particularly set out in s 106(2) of the Summary Procedure Act. Mr Kelly’s text sets out the approach adopted by King CJ in Goldsmith v Newman and in subsequent cases. I do not intend to repeat the exhortations of the Chief Justice in that matter other than to say that I am well familiar with the Chief Justice’s remarks.
Having considered the submission made by Ms Fuller, it is my opinion that it is not appropriate to direct the attendance of all or any of the witnesses that are referred to. I decline therefore to make an order for their attendance.
The Magistrate then said that there was a case to answer in respect of each of the counts in the Information before him. An order was made committing Mountford for trial.
Submissions on application for leave to appeal
Mr Edwardson, counsel for Mountford on appeal, submits that the Judge erred in refusing leave to serve the proceedings. He submits that the material before the Judge established an arguable case of error of law on the face of the record. The error of law is said to be the failure to apply correctly the criteria for the grant of leave, set out in s 106(3) of the SPA.
Mr Edwardson was critical of the Magistrate’s reasons. He makes the point that the Magistrate made no attempt to relate the bases upon which the application was made, or the facts of the case, to the statutory provisions. No attempt was made to explain why the application failed, the Magistrate simply asserting that it should not be granted. In support of his submission that the Magistrate had erred in law he argued that the Magistrate’s reference to it being “not appropriate” to require the attendance of the witnesses indicated that the Magistrate had adopted a test of “appropriateness” rather than the statutory test.
Mr Edwardson also submits that the Judge should have found it was arguable that the Magistrate had failed to exercise the jurisdiction conferred on him by s 106(2). He submits that the Magistrate misconceived the nature of the function that he was performing, and misconceived the statutory test to be applied. He relies upon the statement of principle made by Brennan, Deane, Toohey, Gaudron and McHugh JJ in Craig v South Australia (1995) 184 CLR 163 at 177-178 in relation to a court failing to exercise its jurisdiction as a result of the court misapprehending the question it had to consider or the nature of the function it was to perform. Alternatively, he submitted that the Magistrate had failed to exercise the jurisdiction conferred on him because he had failed to apply himself to the issue that arose under s 106(2) of the SPA: see the cases cited in Haydon v Magistrates Court [2001] SASC 65; (2003-2004) 87 SASR 448 at [4]-[6] Doyle CJ.
The Judge held that there was no arguable case on either basis.
The Judge accepted that it was arguable that the plaintiff had established a basis upon which the Magistrate could have found that there were grounds for a grant of leave, at least in relation to one of the proposed topics for examination. But, as the Judge said, that was not the issue before him. The issue was whether there was an arguable case that the plaintiff was entitled to the remedy sought by way of judicial review. As to that the Judge said that the Magistrate had referred to the relevant statutory provision and to the decision in Goldsmith, the leading case on the application of the provision. The Judge said that the Magistrate’s reference to it being “not appropriate” to make the order was simply a piece of convenient shorthand. The result that the Magistrate had reached was not “so extraordinary or surprising as to support an argument that the Magistrate had asked himself the wrong question”. For those brief reasons the Judge concluded that there was no arguable case that the Magistrate had failed to exercise the jurisdiction conferred on him. For much the same reasons the Judge was not satisfied that it was arguable that the Magistrate had made an error of law in considering the application, even assuming the doubtful proposition that the Magistrate’s reasons were part of the record before him.
Decision on application for leave to appeal
I would refuse leave to appeal. I agree with the Judge’s conclusions. It is not reasonably arguable that the Judge erred.
It is appropriate to deal briefly with a number of issues that were raised, before coming to what I consider to be the main issue, the question of whether the Judge erred in deciding that there was no arguable case that the Magistrate had failed to exercise the statutory jurisdiction.
The Director submits that the application should be refused in any event because the proposed proceedings were and are futile. Mountford has been committed for trial in the District Court. The Director submits that the presentation of an Information under s 275 of the Criminal Law Consolidation Act 1935 (SA) is not conditioned on the conduct of a lawful preliminary examination. The Information stands as a matter of law, regardless of any error made by the Magistrate.
It is not necessary to decide this point. I agree that it would be futile to quash the order committing Mr Mountford for trial, unless the proceedings on the Information filed in the District Court are stayed, or that Information is quashed (if it can be). I note however that s 276 of the Criminal Law Consolidation Act 1935 (SA) imposes a duty to present an Information, unless the Director forms the opinion that there are no reasonable grounds to put the person in question on trial. This suggests that the filing of the Information here was the performance of that statutory duty, and that it would be appropriate to stay proceedings on the Information (if the plaintiff’s main submissions succeed), even though the Director could file an ex officio Information if he saw fit. But that Information might be at risk of being stayed as well. In any event, it is not necessary to decide on this submission.
I accept the submission by the Solicitor-General that this Court could not order that A and B be called for oral examination. That decision is committed to the Magistrates Court. The most that this Court can do is quash the order committing Mr Mountford for trial, with a view to the proceedings being remitted to the Magistrates Court for further consideration. Even if that were to happen, a magistrate might yet decide that the plaintiff’s application should not be granted.
I accept the submission by the Director of Public Prosecutions and by the Attorney-General that there is no arguable case that the decision of the Magistrate should be quashed by an order in the nature of certiorari on the basis that there has been an error of law on the face of the record. In Craig the High Court made it clear that the record of a court, when considering whether error of law on the face of the record can be demonstrated for the purposes of proceedings by way of judicial review, is a relatively narrow concept, and narrower than it was assumed to be in a number of decisions that preceded Craig: see Craig at 180-182.
Applying the principles stated in Craig, the transcript of the preliminary examination in the Magistrates Court, and the Magistrate’s reasons for refusing Mr Mountford’s application, would not ordinarily be part of the record of the Magistrates Court: Craig at 181. It is for this Court in these proceedings to determine the content of the record, because the Magistrates Court does not, as a matter of practice, draw up its own formal record: Craig at 182-183. The Information before the Magistrate has been put before this Court. The endorsements on that Information, some of which are likely to be part of the record, have not been put before the Court. There is nothing to suggest that the Magistrate’s reasons for refusing the plaintiff’s application should be treated as part of the record, even if the report of the ruling is part of the record. Accordingly, as this ground turns entirely on an examination of the Magistrate’s reasons, it has no arguable prospect of success.
It might be suggested that the Magistrate’s decision is not amenable to judicial review, the decision being no more than a ruling given on a point arising in the course of the preliminary examination. For example, I doubt whether a ruling in the course of a preliminary examination to admit or to exclude an item of evidence can be reviewed in proceedings by way of judicial review. If that is so, and if such a ruling is analogous, that would suggest that the ruling in question cannot be the subject of judicial review proceedings. It may be that the Magistrate’s decision can be reviewed only if an error of the kind suggested is capable, in some way, of vitiating the order committing Mr Mountford for trial: see Goldsmith v Newman at 412 King CJ. That in turn might raise the question of whether, as a matter of statutory construction, the Court should conclude that Parliament intended that a failure to exercise the jurisdiction conferred by s 106(2), once the jurisdiction is invoked, should have the effect of vitiating or invalidating an order committing a defendant for trial. This point also need not be resolved. In Goldsmith v Newman the Court was prepared to assume that a decision made under s 106(2) of the SPA was capable of being reviewed by way of judicial review, and no submission to the contrary was made in these proceedings. Similarly, in Haydon this Court treated as reviewable a decision by a magistrate, in the course of a preliminary examination, refusing to order the production of material in respect of which a claim of public interest immunity was made. It is therefore appropriate to proceed on the basis that this decision is susceptible to judicial review.
That leaves the question of whether it is reasonably arguable that the Judge erred in holding that it was not reasonably arguable that the Magistrate had failed to exercise the jurisdiction conferred on him, as a result of the Magistrate misconceiving or mistaking the nature of his function or the extent of his powers: Craig at 177-178.
In considering this question I proceed on the basis that the Magistrates Court has jurisdiction to decide matters of fact and law when conducting a preliminary examination of a charge of an indictable offence. I proceed on that basis even if a preliminary examination is classed as an administrative function rather than as a judicial function. I do so because, however the function is to be categorised, it is conferred on a court of record: Magistrates Court Act 1991 (SA) s 5. I consider that it is clear from the terms of the SPA, applying the principles stated in Craig, that it was understood that the Magistrates Court decides questions of fact and questions of law.
It is on that basis that the approach to the question of jurisdictional error, taken from Craig, is the approach to be applied here.
Is it reasonably arguable that the Judge erred in holding that it was not arguable that the Magistrate had committed a jurisdictional error?
The Judge noted that the Magistrate had referred to the relevant statutory provision, and to the decision in Goldsmith v Newman, the leading case on point. That decision summarises the relevant principles, and contains useful guidance for magistrates. The Judge made the point, with which I agree, that the Magistrate’s use of the word “appropriate” was not suggestive of error. It was merely convenient shorthand. The Judge said that the result reached by the Magistrate was “not so extraordinary or surprising on the facts that it is arguable that it should be inferred that he asked himself the wrong question”: at [22]. Finally, the Judge said that even if unreasonableness indicated jurisdictional error, he was not satisfied that it was arguable that the decision reached was so unreasonable that no reasonable magistrate, properly directing himself as to the law, could have reached that decision. It is significant that the Judge reached this conclusion even though the Judge took the view that it was arguable that, at least as to the dates of the offences, there was a basis upon which the Magistrate could find that there were grounds for a grant of leave under s 106(2).
There is no apparent error in the Judge’s approach. I agree with it. I do not consider that it is arguable that the Judge has erred. There being no indication of error in the Magistrate’s reasons, the only issue of substance is whether the outcome is one that suggests a jurisdictional error, and I do not consider that it is arguable that it does.
It is quite consistent with that to say that it is arguable that the Magistrate made an error. An error of fact or law is not, of itself, a failure to exercise the jurisdiction conferred on the Magistrate. As the High Court made clear in Craig, more than error is required. The line between an error within jurisdiction, and an error that indicates or amounts to a failure to exercise jurisdiction, must be maintained: see Haydon at [3]-[7].
In fairness to the plaintiff I should explain why I take the view that the Magistrate’s decision is neither an unreasonable one, nor one that suggests that he failed to address the correct question.
I do so relatively briefly, because to do so involves commenting on the facts of the case.
The prosecution case is that Mr Mountford advanced from minor touching of and contact with A, to more serious sexual conduct. A says that Mr Mountford’s conduct altered after 27 October 1991 (a date that he was able to identify by reference to other events). In this respect, it appears to be a case of Mr Mountford grooming A, as it is often described, and is often alleged in such cases. Counsel for Mr Mountford wishes to question A and B to get more certainty and clarity about the timing and nature of the incidents that will be alleged by A. This is a common issue when a complainant alleges a course of conduct extending over a substantial period of time.
A says that certain counts occurred when Mr Mountford was occupying a particular house. There is other evidence available to Mr Mountford’s solicitors to suggest that Mr Mountford did not occupy the house at the relevant time. This is another reason why counsel for Mr Mountford wishes to question A closely about the sequence of events.
A attributes significant health and behavioural problems on his part to Mr Mountford’s treatment of him. A admits that he was abusing drugs for some of the relevant time. A was treated by various people for these problems. Nevertheless, it appears that A did not complain about Mr Mountford’s conduct until about ten years later. It appears that A may have denied any issue of sexual abuse to some of those who were treating him, at about the time when the sexual abuse was occurring, or had only ceased relatively recently. Mr Mountford’s solicitors have obtained access to some of the records of treatment of A. There is evidence to suggest that A’s health problems began before Mr Mountford’s alleged misconduct. Counsel for Mr Mountford wishes to question A about his treatment, to identify all of the people who treated A, and (presumably by making enquiry of them) to attempt to ascertain what A said to them. No doubt A would be cross-examined about his reasons for not complaining to them. Counsel for Mr Mountford also wishes to question A more closely about his use of drugs, a matter that presumably will go to his reliability.
Counsel for Mr Mountford also wishes to question A about what he heard or was told of allegations of misconduct against Mr Mountford. The aim appears to be to explore the possibility that A was told by others that Mr Mountford was suspected of sexual misconduct, this either planting in A’s mind the idea that the same had happened to him, or providing him with a basis for a false allegation.
Counsel for Mr Mountford wishes to explore the possibility that A was short of money, and that he has made the allegations against Mr Mountford in the hope that the police investigation would uncover things that would help A make a civil claim against Mr Mountford.
Counsel for Mr Mountford wishes to question B, A’s mother, about A’s condition before and during the period of alleged abuse, about what she was told by others about Mr Mountford’s conduct, and about her suspicions of Mr Mountford, and what she said to A about this.
In summary, counsel for Mr Mountford wishes to question A to clarify the nature and timing of the alleged misconduct, to clarify where two particular counts took place, to explore claimed links between the offences and A’s physical and mental health problems; and to clarify what A knew about allegations against Mr Mountford. The aim is also to uncover further sources of information and to cross check what A says with other information that Mr Mountford’s solicitors have or hope to obtain from other sources.
Counsel for Mr Mountford submits that if this cannot be done before trial, the trial will be unfair. First of all, there would not be an opportunity to pursue lines of enquiry that the questioning of A might open up. Second, exploring these matters before the jury would be difficult because there would be a risk of prejudicial or inadmissible material coming out before the jury.
The loss of the opportunity to do these things in advance of the trial, and in the absence of a jury, is not of itself a basis for a grant of leave under s 106(2) of the SPA. One of the points made in Goldsmith v Newman is that ordinarily at a preliminary examination facts are proved by means of written statements. The opportunity to cross-examine a complainant and witnesses is no longer one of the routine aspects of a preliminary examination. Special reasons must be shown before there will be cross-examination. Showing that the defendant is disadvantaged by the loss of the opportunity to cross-examine at the preliminary examination, does not of itself establish the existence of special reasons for the purposes of s 106(3). To my mind it is significant that the statutory scheme necessarily deprives a defendant of a number of the advantages that the defendant had under the earlier procedure by way of preliminary examination.
In the present case it seems to me that the prosecution case is adequately disclosed. This is so even though there are aspects of it that warrant closer examination, and even though there are areas of uncertainty and of possible inconsistency in it. It also seems to me that the issues for trial are adequately defined. It was not disputed that there was sufficient evidence to put Mr Mountford on trial. And so the real issue remains whether the interests of justice, which in the present context I take to mean the fairness of the prospective trial, called for a grant of leave. Consideration of that question in relation to A required the Magistrate to consider also whether the grant of leave is the only way of serving the interests of justice: see s 106(3) of the SPA.
Minds might differ on how the application should have been disposed of. For my part, I am not at all persuaded that the circumstances called for a grant of leave. My knowledge of the case is necessarily limited. But I see no reason why A cannot be closely questioned at trial about the timing and nature of the events that he alleges. As to the question of when Mr Mountford was occupying the house relevant to certain counts, it does not appear to me that A’s evidence is crucial. It appears to me that counsel for Mr Mountford will be able to cross-examine A about his health and behavioural problems, and the link between the alleged misconduct of Mr Mountford. The same applies to the allegations of misconduct against Mr Mountford, although I recognise that before the jury this is a topic that will require great care. The possibility of a motive on the part of A and B to make false allegations also can be adequately explored at trial. It is also relevant to bear in mind that it would be difficult to put limits on the questioning, if leave were given in relation to one or more of the proposed topics for questioning. I recognise that Mr Mountford’s defence would be assisted if all of this could be done before trial and in the absence of the jury, but, as I have already said, of itself that is not a factor of particular significance. The opportunity to do this is no longer the norm. I am unable to identify any feature of the case that suggests that the trial will be unfair if these matters are left for trial.
The real point of these comments is that I find nothing surprising about the Magistrate’s decision. The result is not one which, on its face, in any way suggests that the Magistrate might have misconceived the issue before him, or might have misunderstood the approach that he should adopt in dealing with it. There is nothing in the result to suggest that the decision is one which, properly directing himself, the Magistrate could not reasonably have reached.
In short, the argument that the decision reached is indicative of jurisdictional error finds no support in the circumstances.
Even were I persuaded that it was arguable that the Judge had erred, it would still be necessary to consider whether leave to appeal should be granted. A grant of leave to appeal would not result in the establishment of any relevant principle. The relevant principles have already been established by the decision in Goldsmith v Newman. Judicial review of the Magistrate’s decisions will, in the end, turn entirely upon the kind of examination of the facts that I have already made. I do not consider that there is anything more that can usefully be said about s 106 than has already been said.
Another relevant matter to consider is that Mr Mountford has been committed for trial, and is now before the District Court. Sending the matter back to the Magistrates Court would result in further and undesirable delay. If the trial Judge thinks that fairness requires that Mr Mountford be given an opportunity to question A or B in the absence of the jury, the trial Judge can allow that to be done. This is not a factor that should in any way influence a magistrate when dealing with an application under s 106. But it is a relevant factor for this Court. And, in the background, there is the often stated reluctance of this Court to interfere with the administration of the criminal law.
As things stand, I am not persuaded that this is an appropriate case for intervention by way of judicial review, but it may be that that is not a factor for consideration when the court is concerned only with whether it should grant leave to appeal against the refusal of leave to serve.
The Magistrate’s reasons
Mr Edwardson did not argue that the Magistrate was obliged to give reasons for his decision. The decision of this Court in Tzeegankoff v The Magistrates Court (1998) 199 LSJS 296 is an obstacle to that submission. In Tzeegankoff, a case in which the Magistrate gave no reasons at all for refusing an application under s 106(2) of the SPA, Prior J said at 297 that there was no obligation to give reasons for such a decision. He referred to the fact that there is no appeal against a decision to commit for trial or against a ruling made in the course of a preliminary examination. He added:
Nevertheless, there is no inflexible rule of universal application that reasons should be given for judicial decisions. This is a normal, but not a universal incident. It is normal in the case of final decisions and other matters the subject of a right of appeal. … I reject the submission that reasons were required in this case. In previous decisions of this Court the apparent absence of reasons for not finding special reasons under s 106 has not been the subject of criticism.
Those observations might seem to conflict with the later decisions in Papps v Police [2000] SASC 183; (2000) 77 SASR 210 and in R v Keyte [2000] SASC 382; (2000) 78 SASR 68. However, it needs to be borne in mind that in each of those decisions the Court was dealing with a decision that disposed of proceedings, and not (as is the case here) with a ruling made in the course of proceedings. The Court in each of those cases was also dealing with a decision that was the subject of an appeal. Neither the decision to commit Mr Mountford for trial nor the rulings in question here can be challenged by appeal. I am not aware of any recent authority to support the view that there is an obligation of law to give reasons for each ruling and interlocutory decision made in the course of dealing with a case. Watson v Anderson (1976) 13 SASR 329 is to the contrary.
Since preparing these reasons I have had the advantage of considering the reasons of Perry J and of White J on the point just dealt with. I agree in general terms with their observations. However, the point was not argued before us, and I refrain from expressing a definite view on the point.
There is no need to pursue this issue further here, because the Magistrate gave reasons. In relation to the adequacy of the reasons (when they are required), I refer without repeating them to observations that I made in Keyte at [52]-[55] and to the discussion of the topic by Perry J in Rowland v Police [2001] SASC 179; (2001) 79 SASR 569 at [26]-[42].
Mr Edwardson did submit that the limited nature of the reasons given made it easier to infer that the Magistrate had not discharged the jurisdiction conferred on him, and had misconceived the issue with which he had to deal. That may be, but as I have already said, I am not persuaded that it is reasonably arguable that the Judge was wrong to hold that it was not arguable that the Magistrate erred.
Whether or not the Magistrate was obliged as a matter of law to give reasons for his decision, it would have been better if the Magistrate had given more detailed reasons. An application under s 106 of the SPA is a significant application, or at least often will be. The proper application of s 106 is important to ensure efficiency and expedition at the stage of the preliminary examination, which is one aspect of the statutory scheme, but also to ensure that there is a fair trial in due course, which is another aspect of the statutory scheme. In Goldsmith King CJ considered the purpose of a preliminary examination, in light of the procedures prescribed by the SPA, and in particular in light of the impact of s 106. As to s 106(3) he said at 410:
While proof of facts by means of written statements without oral examination, is the norm, the decision as to whether special reasons exist for oral examination, should not be approached in an unduly restrictive way. Such decisions should serve the purposes of the preliminary hearing and the interests of justice, including the establishment of the conditions for a fair trial in the trial court. They must be the paramount considerations.
I agree with those observations. He had already made the point that whether there are “special reasons” for granting leave for witnesses to be orally examined will depend so much on the circumstances of the case, that not much can usefully be said about how a particular case should be decided, but at 410-411 he provided some guidance to magistrates which remains applicable today. There is no need for me to repeat what he said.
However, it is appropriate to emphasise that the application of s 106(3) must be considered with a close eye to the circumstances of the case. My summary of the basis of the application discloses that there are a number of separate bases advanced by counsel for Mr Mountford, and although they are interlinked, each requires separate consideration. Striking the balance between the relevant considerations under s 106(3) will be done satisfactorily only if careful attention is paid to the basis of the application and the facts of the case.
I emphasise that there is no need for a magistrate’s reasons to be lengthy. There is no need for the magistrate to recite passages from the case law. But it is desirable for a magistrate dealing with such an application to identify briefly the basis upon which it is made, and to explain briefly why the application is to be granted or refused. I emphasise that I am not saying that the failure to provide adequate reasons is an error of law, or indicates a failure to exercise jurisdiction. Rather, the point I make is that the discipline of giving brief reasons that grapple with the circumstances of the case, and explain the decision by reference to those circumstances, will help ensure that the decision maker has correctly identified and grappled with the substance of the application.
In the present case the Magistrate’s reasons do not grapple with the circumstances relied upon by counsel. As I have indicated, I am satisfied that the Magistrate’s reasons do not suggest an error of law or that he misconceived his task. But such a brief explanation can leave the unsuccessful party before the Magistrate unsure whether the merits of the application have been properly considered, and dissatisfied for that reason.
Conclusion
For the reasons indicated, I would refuse leave to appeal.
PERRY J: This is an application for leave to appeal from an order of a single judge refusing leave to serve a summons for judicial review.[1]
[1] See SCR r 98.04A.
Following a preliminary examination in the Magistrates Court sitting at Adelaide, the applicant has been committed for trial in the District Court on five counts of indecent assault, one count of procuring the commission of an act of gross indecency and two counts of sexual intercourse, all relating to the same alleged victim, then of the age of 14 years.
During the course of the preliminary examination, the applicant sought an order pursuant to s 106(1)(b) of the Summary Procedure Act 1921 (“SPA”) that the prosecutor call the complainant and seven other prosecution witnesses for oral examination.
The applicant’s application to that end was made by notice in writing given pursuant to r 20.02 of the Magistrates Court Rules 1992.
The r 20 application, as it is known, set out a number of discrete topics upon which the applicant sought to cross examination each of the witnesses.
After hearing argument, the magistrate dismissed the application. He gave short ex tempore reasons for doing so.
In the summons seeking judicial review of the magistrate’s dismissal of the application, the applicant seeks an order in the nature of certiorari, quashing the magistrate’s order; an order quashing the order of committal for trial; an order in the nature of mandamus, directing the magistrate to order that two of the witnesses referred to in the r 20 application, namely the complainant and his mother, be presented for oral examination; and a stay of the proceedings which have now been commenced by the filing of an Information in the District Court.
In his reasons for refusing leave to serve the application for judicial review, the judge at first instance, Besanko J, held that there was no arguable case that the applicant was entitled to the remedies sought. In reaching that view, Besanko J held that it was not reasonably arguable that the magistrate committed a jurisdictional error, and neither was it arguable that there was error on the face of the record.
As well, he rejected the argument that there was what has come to be known as “Wednesbury unreasonableness”, giving rise to an error going to jurisdiction.
Besanko J’s order was an interlocutory order within the meaning of s 50(1a)(c)(ii) of the Supreme Court Act 1935. As such, leave is required to appeal to this Court.
Pursuant to SCR r 94.03(c)(ii), this Court ordered that the application for leave to appeal be listed for oral argument on notice.
On the hearing of oral argument, the Solicitor-General intervened on behalf of the Attorney-General. Mr Hinton of counsel appeared for the Director of Public Prosecutions as an interested party.
As this is an application for leave to appeal, and as I am in complete agreement with the reasons advanced by Besanko J in support of the conclusion which he reached, no useful purpose would be served by canvassing again the arguments advanced by the parties with respect to the jurisdictional issues.
I will, however, take the opportunity to deal with two aspects of the matter which are of general importance.
The first ground put forward in the affidavit filed in support of the application for judicial review is:
9.1The failure of the learned Chief Magistrate to give reasons for refusing the plaintiff’s application.
The ground is literally incorrect, in that the Chief Magistrate did give reasons, albeit brief reasons.
In any event, Mr Edwardson of counsel for the applicant abandoned reliance upon that ground. He did so after his attention had been drawn to the decision of the Full Court in Tzeegankoff v The Magistrates Court.[2]
[2] (1998) 199 LSJS 296.
That case is relevantly on all fours with the present case. In Tzeegankoff, the applicant sought judicial review of the refusal by a magistrate to permit oral examination of witnesses during the course of a preliminary examination. In the course of his reasons for judgment, Prior J, with whom Lander and Wicks JJ agreed, observed[3]:
S42 of the Magistrates Court Act 1991 makes plain that there is no right of appeal against the magistrate’s decision. It is the right of appeal that is often used to maintain the proposition that judicial officers are under an obligation to give reasons. Nevertheless, there is no inflexible rule of universal application that reasons should be given for judicial decisions. That is a normal, but not a universal incident. It is normal in the case of final decisions and other matters the subject of a right of appeal. It is not too difficult to conclude, in this case, that the magistrate was not satisfied that there were special reasons and that in arriving at that decision he had regard to the provisions of s106 and the authority of this Court cited to him. I reject the submission that reasons were required in this case. In previous decisions of this Court the apparent absence of reasons for not finding special reasons under s106 has not been the subject of criticism.
[3] Ibid 297
Prior J went on to conclude[4]:
It is not an error of law to fail to give reasons for an interlocutory decision with respect to which there is no right of appeal.
[4] Ibid 298
I would go further.
In my view, a failure to give reasons or adequate reasons should not be characterised as “an error of law”, even where there is a right of appeal, unless the failure frustrates the ability of the appeal court properly to discharge its function.
That is how the matter was put by Bray CJ in Watson v Anderson,[5] a decision referred to with approval in Tzeegankoff.
[5] (1976) 13 SASR 329.
In Watson v Anderson, Bray CJ, after referring to the decision of the Court of Appeal of New South Wales in Pettitt v Dunkley,[6] said:[7]
I respectfully agree with that decision, but I cannot regard it as laying down a universal proposition that every judge must give reasons for every decision he makes and that every such decision will automatically be set aside on appeal if he does not. …
Of course, if there is a trial on oral evidence and the facts are in dispute, it is impossible for the appellate court to deal with the judge’s decision if it does not know what facts he has found. The real criterion, it seems to me, must be whether the failure to give reasons frustrates the performance of its duty by the appellate court. This does not happen in every case when no reasons are given. (my emphasis)
[6] [1971] 1 NSWLR 376.
[7] Ibid 331.
In the same case, Mitchell J said:[8]
I can see nothing in the cases relating to the exercise of the discretion to set aside the judgment obtained by default to indicate that it has ever been considered essential or even usual for the court exercising the discretion to state its reasons.
[8] Ibid 337.
Walters J observed:[9]
I do not consider it to be contrary to sound or just practice that a judge hearing an interlocutory application should give no reasons for a particular decision. As a matter of law, a judge is not bound to give reasons, or sufficient reasons, for his decision.
[9] Ibid 341.
Since the decision in Watson v Anderson, there has been a considerable development in the case law relating to the obligation to give reasons or adequate reasons. A comprehensive citation of relevant authorities appears in Halsbury’s Laws of Australia.[10]
[10] Vol 20 par [325-9020] p 596,147.
I have not read anything in such of those authorities as are binding on this Court, to give cause to doubt what was said in Tzeegankoff and Watson v Anderson.
In case it might be thought that the decisions of this Court in Papps v Police[11] and R v Keyte[12] decided otherwise, I will deal briefly with those decisions.
[11] (2000) 77 SASR 210.
[12] (2000] 78 SASR 68.
In Papps the question was raised in the context of what were held to be inadequate reasons given by a magistrate for reaching a finding of guilt on an information alleging various driving offences.
In my view, statements in the judgment of Gray J in that case, with which Olsson and Wicks JJ agreed, to the effect that “a failure to give reasons amounts to an error of law”,[13] should be read in the context of the circumstances of that case, which involve an appeal from a judgment entered after a trial.
[13] (2000) 77 SASR 215.
In Keyte the question was examined in the context of trial by judge alone.
In the course of his reasons for decision in that case, Doyle CJ observed:[14]
There is authority to support the view that in a case like this, that is, a judicial decision subject to appeal, there is a requirement to give reasons and that the failure to give reasons when required is itself an error of law. (my emphasis)
[14] Ibid 77 par [44].
Doyle CJ went on to refer to the decision of the Court of Appeal of the Supreme Court of New South Wales in Soulemezis v Dudley (Holdings) Pty Ltd.[15] He said:
Although there was some divergence of views as to the extent of the obligation, all members of the court agreed that there was an obligation to give adequate reasons for a decision that was subject to appeal. (my emphasis)
[15] (1987) 10 NSWLR 247.
Doyle CJ went on to refer to Papps v Police (supra) which he regarded as a decision in which the Full Court held:
… that a failure to give adequate reason (that is reasons adequate for the purposes of appellate review) is an error of law. (my emphasis)
In Keyte, Williams J referred to reasons which were “… insufficient to enable this Court properly to discharge its appellate function”.[16]
[16] Ibid 82 par [64].
The absence of reasons does not necessarily impede the ability of a court of appeal to discharge its role. For example, the absence of reasons would not matter in a case in which the exercise of the appellate jurisdiction involves a reconsideration of the decision under appeal de novo: see Perkins v County Court of Victoria and Ors per Buchanan JA:[17]
There is no general principle that a court’s failure to give reasons is an error of law which vitiates the court’s decision. That is not to deny the importance of the giving of reasons in the process of judicial decision making. Want of reasons may mount to an error of law where the absence of reasons would frustrate a right of appeal, although even where a right of appeal exists, the nature of the decision and the circumstances of the case may require no more than a brief ruling, and where an appeal is de novo, an absence of reasons for the decision below can have no effect. (my emphasis)
[17] (2000) 2 VR 246 per Buchanan JA at 270.
Buchanan JA went on to say, in a passage with which I respectfully agree:[18]
Moreover, the provision of reasons for a decision as affecting a person’s rights and liabilities is usually desirable, serving objectives such as candour in decision making, the accountability of decision makers, the reconciliation of parties to the results of litigation and promoting the drawing of conclusions which are rational and soundly based on legal principles. Nevertheless the general desirability of reasons and in certain cases their necessity in my view are not sufficient considerations to found an all-embracing principle that failure to state reasons or adequate reasons for a judicial decision constitutes an error of law vitiating the decision. [References to authorities omitted]
[18] Ibid 271.
The conclusion I reach on this issue is that one should only speak in terms of an error of law where there is a right of appeal which could be frustrated by the absence of reasons.
To go any further raises the question of the approach to be taken to the many interlocutory orders made by Masters every day; directions hearings by judges in criminal and civil matters; rulings made during the course of a trial on admission of evidence and the like; rulings made on submissions of no case to answer; rulings made on objections to subpoenas; orders disposing of applications for leave to appeal; and the host of other orders and rulings which fall short of orders finally disposing of matters.
An order made during the course of a criminal trial as to the admission of evidence may well be the sole focus of an appeal. I have never felt any embarrassment when sitting on an appeal in such matters by reason of the fact that such a ruling may be unsupported by reasons.
Orders as to costs which may follow argument and may involve substantial sums of money, are commonly made without reasons.[19]
[19] In Penfold v Penfold (1981) 144 CLR 311 at 315-316 the High Court held that there is no obligation upon a judge to give reasons for the making of an order as to costs.
In Soulemezis v Dudley (Holdings) Pty Ltd (supra), McHugh JA observed:[20]
… neither the need nor the appearance of justice requires that reasons be given for every decision made by a judicial tribunal: R v Awatere[21] and Public Service Board of New South Wales v Osmond.[22] In the course of an action, a judge may make many decisions concerning interlocutory matters which cannot reasonably be held to require reasons: Capital and Suburban Properties Ltd v Swycher.[23] Justice is a multi-faceted concept. In determining whether justice was done and seen to be done other interests and values, beside the giving of reasons, have to be considered. The limited nature of judicial resources and the cost to litigants and the general public in requiring reasons must also be weighed. For example, many questions concerning the admissibility of evidence may require nothing more than a ruling: in New South Wales common law judges have long held that they are not obliged to hear argument on the admissibility of every question of evidence let alone give reasons. It all depends on the importance of the point involved and its likely effect on the outcome of the case.
[20] Ibid 279.
[21] [1982] 1 NZLR 644 at 649.
[22] (1986) 159 CLR 656 at 667.
[23] [1976] Ch 319 at 325, 326.
As for the present case, for the reasons which I have given, there was no obligation as a matter of law upon the magistrate to give reasons for the decision which he made.
However, it was desirable that some reasons be given in view of the fact that the r 20 application appears to have been the only matter of substance raised during the course of the preliminary examination. The form of application was very detailed, and its presentation was the occasion for substantial submissions.
It would have been better in those circumstances if the magistrate had given rather more extended reasons, dealing with the particular grounds advanced in support of the application. The reasons given were so general that they could hardly satisfy the reader that the magistrate had adequately dealt with the substance of the application.
However, those considerations are not sufficient to indicate that there was an error of law, and neither do they serve to give any buoyancy to the application for judicial review.
In any event, whatever the supposed merits of the case, there is a long line of authority which supports the view that to invoke the supervisory jurisdiction of the Supreme Court by means of an application for orders in the nature of judicial review with respect to orders made on a preliminary examination of criminal charges, will rarely be justified: see the observations of King CJ, with whom Perry and Duggan JJ concurred, in Goldsmith v Newman and Anor:[24]
It has been held by the Full Court in Clayton v Ralphs[25] that a preliminary hearing is amenable to judicial review. … It should be remembered, however, that the grant of relief by way of judicial review is discretionary. The considerations operating against the grant of such relief in respect of committal proceedings referred to in R v Grieve; Ex parte Ellis[26] remain valid. For the reasons given in his judgment, I agree with the dictum of Jacobs J in Clayton v Ralphs (supra) at 365 “that in principle the administration of the criminal law should be left to the criminal courts”.
Committal proceedings are a preliminary step in the process of criminal justice. Generally speaking, deficiencies in such proceedings can be remedied by pre-trial prosecution discovery of facts or documents or by appropriate action at the trial stage such as the permission of examination of witnesses in the absence of the jury. While magistrates are to be encouraged to conduct preliminary hearings in a way which will facilitate a fair trial and render voir dire hearings and other palliatives at trial unnecessary, both trial judges and those conducting prosecutions will have to be prepared to act reasonably to remedy any dangers to the fairness of a trial resulting from the new committal procedures. The intervention of this Court in its supervisory jurisdiction should be necessary, even where a legal basis for it exists, only in the rarest of circumstances.[27]
[24] (1992) 59 SASR 404 at 412.
[25] (1987) 45 SASR 347.
[26] (1878) 19 SASR 437.
[27] See also Dunn v District Court of South Australia, Perry J, 23 August 1996, judgment No S5787, (unreported); Haydon v Magistrates Court of South Australia, [2000] SASC 449 (Williams J); Polley v Bright and Anor, Perry J, 4 August 1995, (unreported) judgment No S5208; Re Rozenes, Director of Public Prosecutions and Anor; Ex parte Burd and Ors (1994) 120 ALR 193; John Weeks Pty Ltd v Harris (1990) 49 A Crim R 421 and Dimitropoulos v District Court of South Australia (1998) 199 LSJS 7.
In my view, quite apart from the fact that no arguable ground has been made out to interfere with the decision in question, that is, the decision refusing leave to serve, the circumstances leading to the application for judicial review were not such as to justify the intervention of this Court.
There is no reason to suppose that if it was thought necessary in the interests of a fair trial that the complainant and his mother be examined in the absence of the jury, the trial judge would not permit that course to be taken.
Since preparing those reasons, I have had the benefit of perusing the reasons for judgment of the Chief Justice. I do not perceive any significant difference between the views expressed by him and by me on the question of the obligation upon judicial officers to give reasons. I agree with his observations on that question.
Conclusion
I would dismiss the application for leave to appeal.
WHITE J: I would refuse leave to the applicant to appeal from the decision of Besanko J. I agree generally with the reasons of the Chief Justice.
I respectfully agree in particular with the statement of the Chief Justice that the observations of King CJ in Goldsmith v Newman[28] as to the circumstances in which it may be appropriate to grant leave to cross-examine witnesses at a preliminary hearing have as much force today as they did in 1992.
[28] (1992) 59 SASR 404 at 410-11.
I add the following concerning the applicant’s submissions about the magistrate’s reasons.
The applicant argued that the reasons of the magistrate for refusing leave to him to cross-examine the witnesses A and B did not address all the criteria specified in s 106(3) of the Summary Procedure Act 1921 to which the court was required to have regard, and submitted that it could therefore be more readily inferred that an error (the applicant suggested jurisdictional error) had occurred. The applicant submitted that at the least the absence of reasons addressing the s 106(3) criteria made it arguable that jurisdictional error had occurred.
I agree with the applicant’s submission concerning the adequacy of the magistrate’s reasons. Those reasons do not address the particular matters upon which the applicant relied in his comprehensive submission in support of the application for leave to cross-examine witnesses at the committal. But I also agree with the Chief Justice that the reasons given by the magistrate do not suggest that he made an error of law, or that the magistrate misconceived his task.
It was not argued that the magistrate was obliged to give reasons for refusing the application to cross-examine the witnesses at the preliminary hearing. The applicant accepted that the decision of the Full Court in Tzeegankoff v The Magistrates Court[29] was against the proposition that reasons are required for decisions of this kind. This Court was not asked to revisit that question, nor to consider the further question of whether a failure to give reasons, where there is an obligation to do so, is an error of jurisdiction, or might otherwise vitiate the court’s decision.[30]
[29] (1998) 199 LSJS 296.
[30] Cf Re Minister for Immigration and Multicultural and Indigenous Affairs; ex parte Palme (2003) 216 CLR 212 at 224-6 [41]-[48]; Perkins v Country Court of Victoria and Others (2000) 2 VR 246 at 270-2 [56]-[62].
The decision in Tzeegankoff with respect to the obligation to give reasons appears to have been influenced very much by the fact that no appeal lies from any judgment arising from a preliminary examination.[31]
[31] Magistrates Court Act 1991, s 42(1).
The requirement, as a matter of law, of courts to give reasons for their decisions is a matter which developed very much in the latter part of the 20th Century. Some of the history is reviewed in the judgment of Buchanan JA in Perkins v County Court of Victoria and Others[32].
[32] (2000) 2 VR 246 at 270 [55].
The rationale for the obligation has also developed. Emphasis has been given to the effect which an absence of reasons could have upon a litigant’s exercise of appeal rights, and on the exercise by courts of their appellate functions. Some authorities also recognise that the giving of reasons serves other functions besides facilitating the appellate process. A number of those other functions are identified in the reasons of Kirby J in Re Minister for Immigration and Multicultural and Indigenous Affairs; ex parte Palme:
The rationale of the obligation to provide reasons for administrative decisions is that they amount to a “salutary discipline for those who have to decide anything that adversely affects others”. They encourage “a careful examination of the relevant issues, the elimination of extraneous considerations, and consistency in decision-making”. They provide guidance for future like decisions. In many cases they promote the acceptance of decisions once made. They facilitate the work of the courts in performing their supervisory functions where they have jurisdiction to do so. They encourage good administration generally by ensuring that a decision is properly considered by the repository of the power. They promote real consideration of the issues and discourage the decision-maker from merely going through the motions. Where the decision effects the redefinition of the status of a person by the agencies of the State, they guard against the arbitrariness that would be involved in such a redefinition without proper reasons. By giving reasons, the repository of public power increases “public confidence in, and the legitimacy of, the administrative process”.(Citations omitted)[33]
Although these remarks were directed to administrative decisions, I consider that many of those rationales are just as apposite in the present context.
[33] (2003) 216 CLR 212 at 242 [105].
There is support in other authorities for the proposition that reasons may be required even in the absence of a right of appeal. For example, in Housing Commission (NSW) v Tatmar Pastoral Co Pty Ltd Mahoney JA said:
In determining whether, in a particular case, there is a duty to give reasons and the extent of it, regard should, in my opinion, be had to the function to be served by the giving of reasons. Thus, the statement of reasons may be necessary to enable a party to exercise his right of appeal or such other rights as he may have to contest the decision: this is one of the conventional functions of the requirement: … But, in my opinion, the requirement that reasons be given should not be limited to cases where there is an appeal. There is as yet no finally authoritative decision on this question. I think that the requirement should be seen as an incident of the judicial process.[34]
[34] (1983) 3 NSWLR 378 at 386. See also Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 258, 279; Flannery v Halifax Estate Agencies Ltd [2000] 1 WLR 377 at 381-2; Wiki v Atlantis Relocations (NSW) Pty Limited [2004] NSWCA 174 at [56]–[58]; Cypressvale Pty Ltd v Retail Shop Leases Tribunal [1995] QCA 187.
Accordingly, the question of whether reasons need be given by courts in respect of decisions from which no appeal lies may not be completely foreclosed by the decision in Tzeegankoff.
I also consider that it would be a mistake to regard every kind of interlocutory decision or ruling that may be given as being relevantly the same when considering whether an obligation to give reasons exists or the content of what is desirable when no such obligation exists. There are numerous decisions made every day in interlocutory matters and in the course of trials in which reasons are not, and should not be, required.[35] It may be that the true position is that not every decision which may be the subject of appeal requires reasons and that some decisions do require reasons even though they are not appealable. In my opinion, a decision about these issues should await full argument on an occasion when they do arise for determination.
[35] Cf Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 279 per McHugh JA.
I respectfully agree with the Chief Justice that even if the magistrate was not obliged as a matter of law to give reasons for his decision, it was desirable, as a matter of good practice, for him to have done so. I would have thought that quite succinct reasons addressing the particular matters relied upon by the applicant could have been given in a way which is consistent with the exercise of summary jurisdiction by the Magistrates Court. Although the magistrate’s reasons could have addressed the matters relied upon by the applicant more directly, they do not, for the reasons given by the Chief Justice, indicate any error of jurisdiction.
As already indicated, I would refuse leave to appeal from the decision of Besanko J.
9
21
1