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Murchison, Ian McKenzie v Keating, Paul John

Murchison, Ian McKenzie v Keating, Paul John

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Case Copied 28 June 1984 21 min read

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Re: IAN McKENZIE MURCHISON
And: PAUL JOHN KEATING
No. WA G26 of 1984
Administrative Law
(1984) ADMN para 96-020 / 54 ALR 386

COURT

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY
GENERAL DIVISION
Morling J.(1)

CATCHWORDS

Administrative law - judicial review - interlocutory relief to stay committal proceedings - application to review Treasurer's consent to prosecution under s.70 Banking Act - alleged offences under Regulation 41 Banking (Foreign Exchange) Regulations - collateral purpose - abuse of process - breach of natural justice - bona fide consent - Letter of Request procedure - interlocutory relief refused

Administrative Decisions (Judicial Review) Act, 1977

Banking Act, 1959

Banking (Foreign Exchange) Regulations

HEARING

PERTH

#DATE 28:6:1984

ORDER

1. The application be dismissed.

2. Applicant to pay respondent's costs.

JUDGE1

This is an application for interlocutory relief in an application made under the Administrative Decisions (Judicial Review) Act 1977 ("the Judicial Review Act"). In the substantive proceedings the applicant seeks review of a number of decisions made by the respondent, who is the Treasurer of the Commonwealth of Australia. By virtue of s.70(1) of the Banking Act 1959 the Treasurer's written consent is required to proceedings for an offence against that Act or the regulations made thereunder.

The decisions which the applicant seeks to have reviewed are decisions made by the respondent consenting to the institution of proceedings against the applicant for alleged offences against the Banking (Foreign Exchange) Regulations and the Crimes Act 1914 and decisions made by the respondent or a person authorised by him that those proceedings be on indictment rather than by summary prosecution. The decisions are described in the application for review in the following terms:

"(a) a decision made on or about the 22nd July

1983 consenting to the institution of proceedings against the Applicant alleging an offence against Regulation 41 of the Banking (Foreign Exchange) Regulations;

(b) a decision made on a date unknown to the Applicant by the Respondent or a person authorised by him to proceed with that prosecution as would have been possible if consent had been given pursuant to Section 70(2) of the Banking Act 1959 and amendments;

(c) a decision made by the Respondent on or about the 9th February 1984 consenting to the institution of proceedings against the Applicant alleging five offences against the Banking (Foreign Exchange) Regulations and the Crimes Act 1914 and amendments;

(d) a decision made on a date unknown to the Applicant by the Respondent or a person authorised by him to proceed with the said five prosecutions on indictment rather than by summary prosecution as would have been possible if consent had been given pursuant to Section 70(2) of the Banking Act 1959 and amendments.

The applicant claims to be aggrieved by the decisions because, so he alleges, he has been improperly and unnecessarily charged with the offences, and has been rendered liable to trial on indictment rather than by summary trial which is a longer and more extensive procedure involving a potential…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [1984] FCA 176
Decision Date: 28 JUNE 1984

CaseChat Overview and Summary

Ian McKenzie Murchison, the applicant, sought an interlocutory relief to halt committal proceedings against him for alleged offences under Regulation 41 of the Banking (Foreign Exchange) Regulations. The respondent, Paul John Keating, was the public prosecutor in the matter. The relief was sought to review the Treasurer's consent to prosecute under section 70 of the Banking Act. The High Court of Australia was the forum for this judicial review.

The legal issues before the court included whether the Treasurer's consent to prosecute was bona fide, whether the Letter of Request procedure was followed correctly, and if there was a collateral purpose or an abuse of process. Additionally, the court had to determine if there was a breach of natural justice in the proceedings.

The court dismissed the application, finding that the Treasurer's consent was indeed bona fide. The court found no evidence of a collateral purpose or abuse of process. It also concluded that the Letter of Request procedure was followed appropriately. The application for interlocutory relief was denied, and the applicant was ordered to pay the respondent's costs.

Orders

Orders of the court

1. The application be dismissed.

2. Applicant to pay respondent's costs.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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