Newby, D.J. v Moodie, R.G

[1988] FCA 273

CATCHWORDS

ADMINISTRATIVE LAW	- ~udlclal revlew - Admlnlstratlve
Declsions (Judicial Review) Act	1977 - review of declslon

to institute proceedings under Crimes (Taxation Offences)

Act 1980 - whether oppressive, abusive of process o r

improper exercise of power to prosecute	- alleged fallure
to take into account relevant conslderations	- delay ln

bringing application - whether reasonable - whether decision of Director of Public Prosecutions reviewable - discretion - application dlsmlssed

Administrative Decisions (Judicial Review) Act 1977, s.5

DENNIS J M E S NEWBY	- Appellant
ROBERT GEORGE MOODIE	- FlCSt Respondent

DIRECTOR OF PUBLIC PROSECUTIONS	-	Second Respondent
No. G 134 of 1988

Sydney
CORAM:	SHEPPARD, MORLING and PINCUS JJ.

3 June 1988

IN THE FEDERAL COURT OF AUSTRALIA	) )
NEW SOUTH WALES DISTRICT REGISTRY	) No. G 134 of 1988
)
GENERAL DIVISION	)

On appeal from a single Judge of

the Federal Court of Australra

BETWEEN:  DENNIS JAMES NEWBY

Appellant

AND :  ROBERT GEORGE MOODIE

First Respondent

AND :  DIRECTOR OF PUBLIC

PROSECUTIONS

Second Respondent

MINUTE OF ORDER

JUDGES MAKING ORDER	:	Sheppard, Morling and Pincus JJ
DATE OF ORDER	:	3 June 1900
WHERE MADE	:	Sydney

THE COURT ORDERS AS FOLLOWS: 

1. Appeal dismissed.

2. Applellant to pay respondents' costs.

- NOTE: Settlement and entry of orders is dealt with in

Order 36 of the Federal Court RuleS.

IN THE FEDERAL COURT OF AUSTRALIA	) )
NEW SOUTH WALES DISTRICT REGISTRY	) No. G 134 of 1988
1
GENERAL DIVISION	)

On appeal from a single Judge of

the Federal Court of Australia

BETWEEN:  DENNIS JAMES NEWBY

Appellant

AND :  ROBERT GEORGE MOODIE

First Respondent

AND :  DIRECTOR OF PUBLIC
PROSECUTIONS

Second Respondent

c o r n :	SHEPPARD, MORLING and PINCUS JJ.
DATE :	3 June 1988

REASONS FOR JUDGMENT

THE COURT:

This is an appeal from a decislon of a ~ u d g e of the

Court dismissing an application for elief under the

Administrative Decisions (Judicial Review) Act 1977 ("the

Judicial Review Act"). The appellant is a sollcitor who

formerly acted for clients who were engaged in what were known

as Slutzkin assets stripping tax minimization schemes and

prepared legal documentation necessary to give effect to

transactions involved therein. In March 1987 he was served
with summonses alleging that in December 1980 and January 1981
he committed offences against the Crlmes (Taxation Offences)

Act - 1980. The summonses were returnable before the Local

Court, Sydney on 13 April 1987. The applicatron under the

Judicial Review Act was filed in this Court on 4 December 1987

and sought a review of the decision of the respondents to institute and maintain the proceedings against the appellant

against he Crimes (Taxation Offences) Act. The first

respondent is the Informant in the proceedings and the second

respondent is conducting the proceedings pursuant to the

Director of Public Prosecutions Act 1983.

The grounds upon which judicial revlew was sought were

that the decision to institute and maintain the proceedings

against the appellant was contrary to law because the

prosecution was oppressive and an abuse of process, and that

the decision was an improper exercise of the power to

prosecute, either because the respondents failed to take

relevant considerations into account	or because the decision
was oppressive and an abuse of power,	O K both; see s.5(l)(e),

(2)(b) and ( 2 ) ( j ) . The learned trial ludge dismissed the

application, being of the opinion that the decision sought to

be reviewed was not within the class of decisions which are

reviewable under the Judicial Review Act. His Honour

expressed the view that even if a case had been made out that

the decision was reviewable under the Act, he would have
refused to grant relief in the exercise of his discretion.

It was common ground before the trial ~udge that no

period was prescribed in the Judicial Review Act for the making of an application for an order of review of the declslon of

which the appellant complained.	In these circumstances It was
open to him	to refuse to entertain the application l f he was of
the opinion that it was not made within a reasonable time after the decision was made - see s.ll(4).	It was submitted to the
trial judge that the application was not made within	a

reasonable time, and that he should therefore refuse to entertain it. However, some confusion seems to have arisen during the course of the trlal as to whether this submission was pressed and, in the result, it was not addressed in the learned trial judge's reasons. Nevertheless, since a notice of contention was given in respect of this submission we must deal with it. It is a threshold submission and it 1s logical that we should deal with it first before passing to consider the

other questions which arise on the hearing of the appeal.

It does not appear to have been argued at the trial,

and it was not argued on appeal, that there is no discretion to

grant an application once it is established that it was not

made within a reasonable time. That is to say, it was not

argued that the word "may" where appearing in s.ll( 4 ) means "shall". Cf ward - v Williams (1955) 9 2 C.L.R. 496 at pp.

505-506. Since we have not heard argument on this question we

do not think we should decide it. Accordingly, we make the assumption, in favour of the appellant, that there is a discretion to entertain an application even though not brought within a reasonable time.

Was the application made wlthin a reasonable time?

When the matter came into the Local Court list on 13 Aprll 1987 counsel for the appellant and h1s co-accused foreshadowed the making of an application to stay the proceedings on the ground that they were an abuse of process. The hearing of that application was set down for 1 December

1987.     The Magistrate also set aside four weeks commencing

1 February 1988 for the hearing of the committal proceedings, presumably against the event that the stay application might not succeed. When the application was lrsted for hearlng on

1 December counsel for the appellant did not pursue it.	The
application in this Court was	filed on 4 December and dlsmlssed
on 2 4 December 1987.	We were lnformed from the bar table that
at the	commencement of the hearing of the committal proceedlngs

in the Local Court on 1 February 1988 an application was made to the Magistrate that they be stayed and that thls appllcatlon

was refused. Thereafter, this appeal was lodged.

There was no evidence before the trial judge as to the

reason for the delay in pursuing the application under the
Judicial Review	Act. Having regard to the submission made at
the trial that	the application had not been made withln a
reasonable time	the absence of evidence explaining the delay 1s
surprising.	I n the absence of such evidence, we think it 1s a

reasonable inference that the appellant made a deliberate
decision that the Local Court was the most appropriate forum in
which to pursue an application that the proceedlngs were an

abuse of process. The application under the Judicial Review

Act	- was, of course, dlfferent from the application which might
have been made to the Magistrate. The application to this Court was to review the decision to prosecute, whereas an
application to the Local Court would have been to stay the
proceedings as an abuse of process. But the purpose of the
application brought in this Court did not differ from the purpose of the application which the Local Court stood ready to hear on 1 December 1987. The substantive relief sought in the application in this Court was an injunction restraining the respondents from continuing the prosecution proceedings. The Magistrate could have made an order to the same effect. His
jurisdiction to do so is not in doubt: see Herron v McGregor &
- Ors. (1986) 6 N.S.W.L.R. 246 and Watson v Attorney-General for
New South Wales (1987) 8 N.S.W.L.R. 685.

Thus, there was not merely a long delay in seek ing

relief under the Judicial Review Act. It was a de ,lay

occasioned by a calculated decision to seek similar relief in

the Local Court. Section 11(5) o f the Judicial Review Act

requires the Court, when determining whether an application is

brought within a reasonable time, to have regard to the time

when the applicant became aware of the making of the decision

he seeks to have reviewed. The appellant became aware	of the
decision that he	was to be prosecuted when he was served with

the summonses on 26 March 1987. A period of over eight

months therefore elapsed before the application to this Court

was made. We think this was not a reasonable time within

which to bring the application and that, accordingly,

s.l1(4)(c) of the Judicial Review Act gave the trial ~udge a

discretion to refuse to entertain it. In OUT oplnion, that discretion should have been exercised against the appellant. It is convenient to defer stating our reasons for reaching this conclusion until we consider the question of discretion generally.

Our conclusion that the application should not have been entertained is sufficient to dispose of the appeal. However, as the merits of the application were fully argued before us it is appropriate that we should deal with them.

Was the decision to prosecute reviewable under the Judicial

Review Act?

The learned trial judge was of the opinion that the
decision to prosecute was not reviewable under the Judicial

Review Act. In reaching this conclusion he relied on a

number of authorities including - Hill v Chief Constable of West

Yorkshire (1987) 2 WLR 1126 at 1133-1134; Barton v The Queen

(1980) 147 C.L.R. 75 and The Queen v Toohey: ex parte Northern

Land Council (1981) 151 C.L.R. 170. However, we do not think those authorities are conclusive of the question whether the decision sought to be reviewed in this case was within the

class of decisions made reviewable by the Judicial Review Act.

The most relevant of those authorities is Toohey’s Case, which was concerned with the question whether a decision of the

l .

Attorney-General to present an ex officio information was

reviewable at common law. That is a different question from

the one presently under consideration.

Section 6 of the Director of Publlc Prosecutions Act institution of prosecutions for indictable offences against the
laws of the Commonwealth (s.6(l)(a)), the carrying on of such
prosecutions (s.6(l)(b)), the institution of proceedings for
the commitment of persons for trial in respect of indictable
offences against the laws of the Commonwealth (s.6(1)(c)), and provides that the functions of the Director include the

the carrying on of such proceedings (s.6(l)(e)). Section 11

of his Act empowers the Director to give directions with

respect to the prosecution of offences against the laws of the

Commonwealth to, inter alios, a person who institutes or

carries on prosecutions for offences against the laws of the

Commonwealth. No doubt the decision of the Director sought to

be challenged in the present proceedings was made pursuant to

ss. 6 and 11.

In OUK opinion this decision was a decision to which

the Judicial Review Act applies, being a decision of an

administrative character made under the Director of Public

Prosecutions Act. Indeed, on the hearing of the appeal

counsel for the respondents did not contend to the contrary.

We do not think that the definition in s.3(1) of the Judicial

Review Act of the term "decision to which this Act applies" should be read down so as to exclude a decision which 1 s

plainly of an administratlve character made	by	the Director
under his Act.

. .

8.

We think the question is put beyond doubt by reference

to the Schedules to the Judicial Review Act. Declsions In

connection with the prosecution of persons for offences agalnst

the laws of the Commonwealth are not excluded from the classes

of decisions to which the Act applles (Schedule 1) but are

specifically excluded from the classes of decislons to which s.13 of the Act applies (Schedule 2, para ( e ) ( i ) ) . We think this is a clear indication of a legislative intention that a decision to prosecute for an offence against the laws of the

commonwealth may be made the subject of an applicatlon under

the Act, but that the decision-maker	1s not required to furnish
a	statement in writing of the reasons for his decision or of

the other matters referred to in s.13.

As was said in - Lamb v - Moss (1983) 49 A.L.R. 533 at

556-557, the Judicial Review Act was intended to provide

remedies for wrongs done to individuals whose interests were
adversely affected by administrative decisions and this Court
is not justified in taking a narrow view of the wide language

used by Parliament in the Act.

Was any ground for relief established?

In substance, the appellant's argument at the hearing

at first instance appears to have been that by reason of the
delay in the institution of the prosecution the appellant had

suffered great prejudice and that, accordingly, it would be an

abuse of process for the prosecution to continue. On the

hearing of the appeal, while this submission was not abandoned,

the main thrust of the argument was that the respondents, in

deciding to institute the prosecution, had falled to first
consider the personal hardship to which the appellant would

thereby be exposed. Thls alleged fallure was sard to make the

decision an improper exercise of the power to prosecute, in

that it was an abuse of that power.

Whichever way the appellant’s case 1 s put, we think i t

is without substance. There is a dlstinction between the

position of a prosecutor who decides to commence	a prosecution
and that of the court in which the prosecution is brought.	No
doubt, in considering whether	it is in the interests of lustice

to institute a prosecutlon the Dlrector may take into account

the peruonal circumstances of the person to be prosecuted in

deciding whether the interests of justlce require the

prosecution to be brought. However, we think It is lmpossible

to say that the failure of the prosecutor to give any

particular weight to the personal circumstances of that person

makes the decirion to prosecute an abuse of power. NO

authority was cited in favour	of such a proposition. Cases
such am Urntar Conservation and Irrigation Commission (NSW) v

Browninq (1947) 7 4 C.L.R.	492 at pp. 540-5;	Sean Investments v
Maclrellar (1981) 38 A.L.R.	363 at 374-5 and Elliott	v London
Borough Council of Southwark	(1976) 2 All E.R.	781 do not lend
SupPOKt to it.

There were, of course, many other matters which the

Director	had	to	Consider	In	deciding	whether	he	should
prosecute.	It	was	not	suggested	that	the	prosecution	was

brought for an improper purpose. In our opinlon the decision
to launch the prosecution notwithstanding the adverse affect

which it would have on the appellant and without making enquiry

of him was	in no way an abuse	of the Director's power to
prosecute.

The fact that the commencement of a prosecution is

not, of itself, an abuse of the power to prosecute does not
necessarily lead to the result that it will be inappropriate

for the court before whom the prosecution comes to stay the

proceedings as an abuse of its process. In Barton v-- The Queen

(supra, at p.95-96) Gibbs A.C.J. and Mason J. said:

"It is one thing to say that the filing of an

ex officio indictment is not examinable by the

courts; it is quite another thing to say the

courts are powerless to prevent an abuse of process

or the prosecution of a criminal proceeding in a

manner which will result in a trial which is unfair

when judgod by reference to accepted standards of
justice. The courts exercise no control over the
Attorney-General's decision to commence criminal

proceedings, but once he does so, the courts will

control those proceedings	so as to ensure that the
accused receiver	a fair trial. The distinction

between the court's lack of power to review the

Attorney's decision whether to commence proceedings

or not and the court's power to control its

proceedings was central to the judgment of Lord
Langdale in Re . v Prosser ( (1848) 11 Beav. 306 150 E.R. 8 3 4 r P The course which Fox J. took in

Rent ((1970) 17 P.L.R. 65) when he ultimately

G h a r g e d the accused on the ground that there had

been no preliminary examination is to be supported,

not on the basis that the Attorney-General's

decision to prosecute was invalid, but on the

footing that the accused would not receive a fair
trial without a preliminary examination."

Facts may be established to the satisfactlon of the

court in which the appellant is tried (if he is committed)

which satisfy it that the prosecution should not	be permitted
to continue. It may reach such	a conclusion upon facts unknown
to the prosecution at the time the decision to prosecute	L S
taken. The decision	it is requlred to make is qulte different

from the decision which the prosecutor must take when deciding

whether to prosecute.

Discretion

Cases abound in which the Court has said that the

power to make an order of review in respect of committal
proceedings should be exercised only in the most exceptional
cases. what was said in Lamb v Moss (supra, at 564) to this

effect has been consistently followed in subsequent decisions

of this Court. We are of the view that the same principle

should be applied to applications of this sort. The High

Court has recently said: "The undesirability of fragmenting

the criminal process is so powerful a consideration that it
requires no elaboration from us" (Vereker	h Ors. v O'Donovan,
application	f o r special leave to appeal, 18.3.88).

Since the application in the present case was not made

within a reasonable time after the decislon sought to be

reviewed was made, the trial judge had, at least,	a dlscretion
to refuse to entertain the application.	(As we have observed

above, it may be a question whether he was obliged In law not

. -

. 12

to entertain it.) In our opinion the facts to which we have already referred ought to have led the trial ludge to conclude that he should not entertain the application. Several considerations lead us to this conclusion. Frrst, the delay was very considerable. Secondly, the appellant made a

considered decision to pursue in the Local Court his claim that

the proceedings were an abuse of process. Thirdly, as the learned trial judge pointed out, the appellant would not have suffered any prejudice had this Court refused to entertain his

application because the Local Court stood ready to hear It. Finally, the Local Court or the court in which the applicant is tried (should he be commltted for trial) 1s so obviously the appropriate court in which the applicant should seek a stay of the prosecution that it was inappropriate that this Court's jurisdiction should be invoked.

These same circumstances compel a finding that even

though the Court	entertained the application to review the
Director's decision to prosecute,	the application should have

been properly refused in the exercise of the Court's

discretion.	bringing the application and even if the Local Court had not Indeed, even if there had been no delay in
been initially requested to determine whether the prosecution was an abuse of process, it would still have been appropriate to refuse relief on discretionary grounds. Some of the cases
in which the High Court and this Court have expressed the view
that once criminal proceedings have been commenced they should
be allowed to follow their ordinary course except in
exceptional circumstances are referred to in Foord v Whlddett
(1985) 60 A.L.R. 269 at 278 et seq. and in Murphy v Director of
Public Prosecutions (1985) 60 A.L.R. 299 at p.302 et seq. No
good purpose would be served by us further reviewlng the
authorities on this point. It is sufficient that we should say that so far from there being any exceptional circumstances in the present case which would justify the exercise by thls Court
of its jurisdiction under the Judicial Revlew Act, the
circumstances are such as to make it quite inappropriate for that jurisdiction to be exercised.

The appeal is dismissed with costs.

I certify that thls and the twelve (12) preceding pages are a true copy of the

Reasons f o m f	the Court.
Associate:  Date :

Counsel for applicant:  Mr. N.R. Cowdery P.C. with Mr. J.T. Kearney

instructed by:  J.R. Gibb h Co.

Counsml for first and
second rerpondcnts:	Mr. R.J. Burbidge Q.C. with Mr. L. Kat2

inmtructed by:  Director of Public Prosecutions

Date of Hearinq:	4 May 1988
Date of Judgment:	3 June 1988