O'Brien v Northern Territory of Australia - [2003] NTCA 4

O'Brien v Northern Territory of Australia [2003] NTCA 04
PARTIES:PETER JAMES O'BRIEN

v
NORTHERN TERRITORY OF AUSTRALIA

TITLE OF COURT:  COURT OF APPEAL OF THE NORTHERN TERRITORY
JURISDICTION:  CIVIL APPEAL FROM THE SUPREME COURT EXERCISING TERRITORY JURISDICTION
FILE NO:AP 6 of 2002 (21005382)
DELIVERED:  26 February 2003
HEARING DATES:  2 & 3 December 2002
JUDGMENT OF:  Martin CJ, Mildren & Thomas JJ
REPRESENTATION:
Counsel:
Appellant:S Southwood QC
Respondent:  T Pauling QC
Solicitors:
Appellant:Geoff James Lawyer & Notary
Respondent:  Solicitor for the Northern Territory
Judgment category classification:    A
Judgment ID Number:  Mar0303
Number of pages:  37

IN THE COURT OF APPEAL
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
O'Brien v Northern Territory of Australia [2003] NTCA 04

No. AP 6 of 2002 (20115382)

BETWEEN:
PETER JAMES O'BRIEN

Appellant
AND:
NORTHERN TERRITORY OF AUSTRALIA

Respondent

CORAM: MARTIN CJ, MILDREN & THOMAS JJ
REASONS FOR JUDGMENT
(Delivered 26 February 2003)
MARTIN CJ:

Appeal from the exercise of a discretion by a Judge in declining to grant a declaration sought by the appellant. He is a legal practitioner who was taken into custody and held in the cells at the Magistrates Court building at Darwin on 6 July 2001 consequent upon a direction by a Magistrate of that Court in the course of criminal proceedings concerning the appellant’s juvenile client.
In proceedings commenced in this Court on 5 October 2001 the appellant sought the following:
“A declaration that Richard Wallace, a stipendiary magistrate of the Northern Territory of Australia, in directing that the plaintiff leave the court and causing the plaintiff to be taken into custody and incarcerated on 6 July 2001:
(a)acted without jurisdiction and/or without power;
(b)acted beyond jurisdiction and/for beyond power; and
(c)failed to accord procedural fairness.”
His Honour refused the application on 6 February 2002 for reasons published that day (now reported at (2002) 128 A Crim R 171). The grounds upon which an appeal from an exercise of a discretion may be brought are well established. It must appear that the Judge proceeded upon a wrong principle, that there was an error of fact or law, a failure to take into account relevant matters or the taking into account of irrelevant matters. In short, the discretion must be shown to have not been exercised in the due and proper exercise of the Court’s authority (House v The King (1936) 55 CLR 499; Crannsen v The King (1936) 55 CLR 509).
The forty main grounds of appeal, most of which were pursued upon the hearing, assert that his Honour erred in a number of ways, but principally in relation to findings of fact and in application of the law.
If the appellant is successful in establishing any of those grounds, then it will be for this Court to consider whether it should make the declaration sought in the exercise of its discretion.
What passed between the appellant and his Worship leading to his being taken into custody appears in the judgment of Thomas J, which I have had the benefit of reading in draft. The conversation and what immediately followed it constitute the primary facts. As his Honour found, the learned Magistrate’s direction to take the appellant into custody was addressed to a police auxiliary who escorted the appellant into the cells. It should be added, in case there is any doubt as to what his Worship intended, that the passage leading to the cells, and no other place, is through a door in the courtroom in which the events took place. In the absence of any evidence from his Worship, he must be taken to have observed the manner in which the auxiliary carried out his directions and approved them.
Upon the hearing before his Honour and before this Court, an audio recording of what was said was played. The members of this Court agreed to that being done upon the assurance of Mr Southwood QC for the appellant that listening to the recording would assist the Court. There were two reasons why it was suggested that should be so. Firstly, it would assist the Court to determine how the words were spoken. The method of enunciation and delivery of words may be an indication of their character (see Muirhead J in Tippett v Murphy (1982) 16 NTR 13 at p 16 and ex parte Bellanto; re Prior (1963) 80 WN 616 at p 620). Secondly, it was said that by listening to the recording the Court would be enabled to determine whether the transcript appearing in his Honour’s reasons as duplicated in those of Justice Thomas was accurate.
His Honour listened to the audio recording of the exchange between the appellant and his Worship and made no finding of fact based upon what he heard. However, the grounds of appeal assert, for example, that his Honour “failed to find that the appellant did not behave in a disorderly manner nor was there any evidence that he did so or was attempting to do so”. My own view, having listened to the recording, is that both the appellant and his Worship spoke in a clear, moderated but deliberate manner. There is nothing about how the appellant spoke which is indicative of his creating disorder, but I would not confine that question to manner of speaking.
As to the second reason advanced, all members of this Court listened to the recording and I informed the parties that we were satisfied that the transcript was accurate. Counsel for the appellant drew our attention particularly to what was recorded as being said by his client in answer to his Worship’s query as to what he “wanted to do about the charge in this court this day”. It was suggested that the word “wanted” in the reply should be “wants”. We did not agree. There was no error of fact in that regard. The transcript is an accurate record of what was said.
I have referred to there being 40 grounds of appeal. That accords with the number of numbered paragraphs, but some of those paragraphs were subdivided so as to raise further particulars, especially in regard to alleged errors of fact or omission on the part of his Honour to make findings of fact. For example, par 4 alleged errors in failing to find and failure to give sufficient weight to certain facts and proceeded to enumerate seven of them, similarly, par 6 supplies four examples, par 8 seven, and par 10, five. The appellant has gone through his affidavit in support of the application for the declaration, then examined his Honour’s reasons and found that his Honour did not deal with all of the undisputed evidence set out in the 93 paragraph affidavit. As appears from his reasons his Honour dealt with the general background to the occurrence and, in my opinion, his findings of fact are sufficient to set the scene for what occurred. I do not propose to go through each of the enumerated grounds of appeal relied upon to consider whether or not his Honour erred in failing to make the findings which could have been made on the material before him. It was simply not necessary for his Honour to examine every piece of evidence put forward by the appellant before him and make a finding in respect of it. Furthermore, for the most part the matters in respect of which it is alleged his Honour erred in failing to make findings were and are irrelevant for present purposes.
His Honour has made sufficient findings based upon the material to accurately indicate what occurred and what was in the mind of the appellant which motivated his exchange with his Worship. His Honour’s summation of the material to provide a satisfactory background to what occurred is set out in par 8 to par 15 of his reasons as recorded in the draft prepared by Thomas J. None of the errors alleged against his Honour in failing to make findings of fact go to facts which were in any way vital to the resolution of the case.
“The Judge’s findings of fact and his reasons are essential for the purpose of enabling a proper understanding of the basis upon which the verdict entered has been reached, and the judge has a duty, as part of the exercise of his judicial office, to state the findings and the reasons for his decision adequately for that purpose” per Asprey JA Pettitt v Dunkley (1971) 1 NSWLR 376 at 382.
That case and others were applied in this Court in Mobasa v Nikic (1987)

47 NTR 48. In my opinion, his Honour’s findings of fact and reasons provide a proper understanding of the basis upon which he refused the declaration sought.
It is also put that his Honour erred in making certain findings of fact as disclosed by the following extracts from his reasons:
·     The learned Magistrate repeatedly pressed the appellant to advise the Juvenile Court what SJS was going to do in respect of the offensive weapon charge whilst the appellant attempted to continue his general submissions about the diversion scheme;
·     Eventually the learned Magistrate directed the appellant to leave the Juvenile Court on two occasions. The appellant objected. The learned Magistrate then directed the appellant to be taken from the Juvenile Court. The appellant again objected and the learned Magistrate warned the appellant that unless he left the Juvenile Court immediately he would ask why he should not be dealt with for contempt. The appellant continued his attempts to address the bench and the learned Magistrate directed that he be taken into custody;
·     The appellant persistently refused or neglected to answer a direct question from the Magistrate;
·     In that the appellant attempted to address the Juvenile Court on other matters and refused to comply with the direction to leave the courtroom;
·     The appellant repeatedly neglected to answer the learned Magistrate’s questions and gave no indication that the purpose of his submission was to seek an adjournment.
I would reject those grounds of appeal. These findings represent a fair summary of what transpired between the appellant and his Worship.
The appellant was removed from the courtroom, taken to the cells and brought back about ten minutes later at the request of the learned Magistrate. In the meantime, the offensive weapons charge had been adjourned to 20 July 2001 so as to resolve the issue of whether the charge was to be dealt with under the diversion scheme, the probability of which appears to have been conveyed to his Worship by the juvenile’s mother as the appellant was being removed. Upon his return the appellant apologised for what he had said, saying he was not acting in any malicious way, but perhaps was over zealous, “I was attempting to relay instructions”. His Worship thanked the appellant for what he had said, indicated he would consider it and said he doubted whether he would go ahead “with the matter”, no doubt referring to his earlier indication that he had contempt proceedings in contemplation. His Worship said he would make up his mind at 2 o’clock and acknowledged that if he intended to proceed with a contempt charge he would need to “frame some sort of a bill of goods”, by which I take it his Worship was referring to the need to formulate a charge. A little while later his Worship indicated that he proposed to take the matter no further. The appellant now says that that apology is not to be taken as an admission of wrongdoing.
His Honour records that about two months after the incident the plaintiff’s solicitors wrote to his Honour the Administrator and the Attorney-General of the Northern Territory seeking to have the learned Magistrate removed from office pursuant to s 10 of the Magistrates Act on the ground that he was either incompetent to carry out his duties or otherwise unsuited to the performance of his duties. The Attorney-General replied by letter of 3 October informing the appellant’s solicitor that he had reached the conclusion that the learned Magistrate had “acted within his powers as a Magistrate in relation to the incident in question” and had recommended to his Honour the Administrator that no action be taken. The plaintiff later commenced the proceedings from which this appeal is brought.
His Honour found that the learned Magistrate did not punish the appellant for contempt pursuant to s 46 of the Justices Act. He went on to say that:
“It was apparent that the learned Magistrate’s actions were directed to restoring order in the courtroom and/or a precursor to consideration of a contempt charge and the form any such charge might take”.
I would not disturb that finding. It was open on the evidence. But if I am wrong about that, then the question at the heart of this appeal nevertheless remains, that is, whether the learned Magistrate had the power in the circumstances to cause the appellant to be taken into custody either in contemplation of or as part of contempt procedure, or otherwise.
Before turning to consider the law as it applies in the circumstances, I should note that the learned Solicitor General appearing for the Attorney-General had submitted to his Honour, as a preliminary issue, that there was no jurisdiction in the Supreme Court to grant a declaration in the terms sought because of the operation of the protective provisions of s 19A of the Magistrates Act. His Honour proceeded on the assumption that the court did have jurisdiction to grant the declaration. No notice of contention has been given in respect of that matter.
In Bynder v Gokel (1998) 125 NTR 1 Bailey J (Kearney and Priestley JJ concurring) examined many of the authorities especially what was said by Dawson J in Grassby v R (1989) 168 CLR 1 at p 16:
“Every court undoubtedly possesses jurisdiction arising by implication upon the principle that a grant of power carries with it everything necessary for its exercise”.
Their Honours noted that Mildren J had applied the observations of Dawson J in relation to the Work Health Court established under the Work Health Act (Consolidated Press Holdings Limited v Wheeler (1992)

84 NTR 42) and proceeded against that background to consider the questions then referred to the Full Court for consideration. It should therefore be accepted that the Juvenile Court has implied jurisdiction of the kind referred to. The authorities show that it includes a power to direct a legal practitioner appearing for a party to leave the courtroom and to have him or her removed in default of compliance (see later). The circumstances must justify the exercise of the power. Appropriate steps must be taken to protect the interests of the party whose representative has left the courtroom and others involved in the proceedings.
It goes without saying, although the appellant made much of it, that as a legal practitioner he had a right of audience in any court of the Territory (Legal Practitioners Act, s 19) and that his client was at liberty to conduct his case with the assistance of the appellant (Justices Act, s 29). That privilege, and right, however, is not absolute. Both are regulated by the law and Rules relating to the conduct of legal practitioners in court, the power of courts to control their proceedings and the power of courts to punish for contempt.
Counsel have “a high responsibility to ensure that the client’s case is fully and properly presented, specially in a criminal trial”. That “may require him to plead his client’s case fearlessly and with vigour and determination”, but it has always been recognised that counsel has “an overriding duty to the court, to the standards of the profession and the public” which requires him to “contribute to the orderly, proper and expeditious trial of causes in our courts” (Lewis v Judge Ogden (1984) 153 CLR 682 at 689 – citations omitted). The conduct of litigation is a matter for the parties and the court:
“… and the need to avoid disruption in the court’s list with consequent inconvenience to the court and prejudice to the interests of other litigants waiting to be heard are pressing concerns to which a court may have regard” per Toohey and Gaudron JJ in Sali v SPC Limited (1993) 67 ALJR 841 at 849).
Sali v SPC Limited had to do with adjournment of proceedings, but in my view what their Honours said applies to the present case. It is particularly relevant in the context of a busy Court of Summary Jurisdiction or Juvenile Court where the presiding judicial officer is rightly concerned to establish what is intended to be done by parties in relation to the matter then before the court. That is an important part of the court’s proper function in relation to the orderly conduct of a trial before it and the management of the list.
The correctness of his Honour’s finding of fact concerning the appellant’s failure to respond to a question directed to what was proposed to be done in relation to the charge pending against SJS was not in error in my opinion. I agree with his Honour’s observation that all that was required of the appellant was a reordering of his submissions to alert his Worship that an adjournment was being sought.
His Worship was sitting as a Magistrate in the Juvenile Court established under the Juvenile Justice Act (NT). Subject to that Act that Court is to hear and determine all charges against a juvenile for having committed an offence (s 19(a)). His Worship was embarked upon that process. Subject to the Juvenile Justice Act, the Justices Act (NT) applies to proceedings in that court.
In ex parte Cory (1865) SCR 304, after a full review of the authorities, Stephen CJ said that a legal practitioner who had allegedly used “insulting and contemptuous language” to a Magistrate, where:
“repetition of such behaviour is reasonably apprehended, may be forthwith removed from the courtroom, and, if so, he may be kept out of or prevented from entering it during the remainder of the proceedings”, p 309.
In Ex parte Bellanto; re Prior (1963) 80 WN 616 the Full Court of the Supreme Court of New South Wales seems to have accepted without demur that it was within the power of the chairman of quarter sessions to order the barrister out of court, see p 617 and p 622. What remedy was available if the barrister did not obey the order was not there considered, but it plainly arose in Bell and Another v Norton & Ors (Supreme Court of New South Wales, 10 August 1983, Lee J, unreported). The defendant, a Stipendiary Magistrate, had directed that a barrister, Mr Costello, be forcibly removed from court by police. Upon the hearing before his Honour the Bar Association appeared by leave, but as his Honour observed, at p 4, no question was raised as to the power of the Magistrate to have counsel removed in the circumstances which had occurred. His Honour had listened to a tape recording of what passed between Mr Costello and his Worship and discerned that counsel was arrogant and rude, p 41, insolent, p 12 and insulting, p 14. Justice Lee, at p 18, recorded that the extent of the power of a justice to remove a legal practitioner from court, as stated by Stephen CJ, had not, according to the researches of counsel and himself ever been questioned.
Turning to another issue in this appeal, I note that Justice Lee declined to make a declaration sought by the plaintiffs, Mr Costello’s clients, that they were entitled to be represented by him upon a resumed hearing of the proceedings which had given rise to Mr Costello’s being removed from court. His Honour declined to do so, saying no error had been made by the Magistrate and no rights to the plaintiffs had been infringed, p 23.
Of course, there are methods of restoring order to the court process other than by ordering the offending person, counsel for a party or not, from the courtroom and, if necessary, having him or her deprived of liberty for that express and limited purpose. In either event the parties remain to be heard but it may be convenient to adjourn the proceedings to enable order to be restored. That may depend upon the source and type of disorder calling for judicial intervention. Another means of attempting to restore order lies in the power of a Magistrate to simply adjourn the hearing and thus temporarily put to an end those particular proceedings. The learned Magistrate could then retire or call on the next case. Either such course may carry with it the advantage of the termination of the disorder and avail all concerned of the opportunity to cool down and consider what might be done to restore the orderly conduct of the court’s work. In the case of a legal practitioner, advice might be sought from a peer, and that, perhaps even at the suggestion of the Magistrate before adjourning (per Pincus J in Bradshaw v Attorney-General (2000) 2 QD R 7 at p 9). That was a contempt case and a fortiori, such a process would be appropriate to a case such as this.

No authority has been brought to our attention holding that a Magistrate has power to cause a legal practitioner to be taken into custody and placed in confinement in the circumstances of this case. There is nothing to be found in the statutes (contra the provisions of the Western Australian Justices Act which contains an express power to exclude a person who insults any justice or willfully interprets the proceedings from the courtroom, a power of summary conviction and a power in the justice to order that the alleged offender be taken into custody then and there by a police officer and called upon to show cause why he should not be convicted, Gliosca v Ninyett (1992) 10 WAR 562 at 566).
Interference with a person’s liberty constitutes “a grave infringement of the most elementary and important of all common law rights” per Fullagar J in Trobridge v Hardy (1955) 94 CLR 147 at 152.
The only power to imprison a person arising from misconduct in relation to proceedings in a Court of Summary Jurisdiction lies in s 46 of the Justices Act. That Act prescribes the circumstances in which the power might be exercised. It was not submitted that his Worship was exercising or had power to exercise the authority of a court of record to punish a person summarily for the offence commonly known as “contempt of court”, Criminal Code Act, s 8 (NT) and see Bennison; ex parte Fisher SM (1995) 15 WAR 318; in re Dunn (1906) VLR 493, and The Queen v Lefroy (1873) LR 8 134. In any event I am not satisfied that his Worship purported to exercise any power available to punish for contempt. He had not found the appellant guilty of contempt (compare Bienstein v Bienstein, Full Court of the Family Court at Melbourne, unreported 5 June 2001).
The words used by his Worship amounted to an acknowledgement that an essential ingredient of the procedure in regard to punishment for contempt had not been followed, that is, no specific charge had been stated (Coward v Stapleton (1953) 90 CLR 573 at 579). Had such a charge been stated, then the appellant must have been given a reasonable opportunity of being heard in his defence, p 579 and see also Macgroarty v Clauson (1988)

167 CLR 251 and more recently Bradshaw v The Attorney-General.
In my opinion his Worship was demonstrably aware of the procedural requirements relating to a summary hearing of a contempt charge. He might also be taken to have been aware of the sparing use to be made of the power, even in the case of “setting the court at defiance” Shamdasari v King Emperor (1945) AC 264 at 269 and 270; Lewis v Judge Ogden (1984)

153 CLR 682. It is perhaps the degree of caution and circumspection called for before contempt procedure is initiated that justifies in part the power of a court to adopt a means of restoring order which does not carry with it criminal sanction.
The principal contention advanced by the appellant is that the Juvenile Court fell into jurisdictional error in that it had no jurisdiction or power in the circumstances as proven to direct that he be taken into custody.
The question of when an inferior court falls into jurisdictional error is the subject of clear instruction by the High Court in Craig v South Australia (1995) 184 CLR 163 commencing at p 177. In part, the Court said:
“Jurisdictional error is at its most obvious where the inferior court purports to act wholly or partly outside the general area of its jurisdiction in the sense of entertaining a matter or making a decision or order of a kind which wholly or partly lies outside the theoretical limits of its functions and powers” per Brennan, Deane, Toohey and McHugh JJ.
In my opinion that was the case here. His Worship made an order of a kind which wholly lay outside theoretical limits of the court’s implied powers to control its proceedings. As previously indicated, this is not a case in which the power of punishment by way of imprisonment arose in contempt proceedings.
His Honour’s finding that what was done was within jurisdiction and power of the learned Magistrate was in error of law and cannot stand.
The jurisdiction of a court to make a declaration is a very wide one (Forster v Jododex Australia Pty Ltd (1972) 127 CLR 421 at 435 per Gibbs J. Although what occurred here took place in the context of proceedings in the criminal jurisdiction of the Juvenile Court, the declaration sought does not relate to a criminal case, but rather the conduct of proceedings in the inferior court regardless of the jurisdiction then being exercised.
The claim for a declaration is not open to objection on the ground that a merely declaratory order is sought and the court may make a binding declaration of right whether any consequential relief is or could be claimed or not (Supreme Court Act (NT), s 17).
In Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 at 582 Mason CJ and Dawson, Toohey and Gaudron JJ said that:
“The discretionary power is confined by the considerations which mark out the boundaries of judicial power. Hence, declaratory relief must be directed to the determination of legal controversies and not to answering abstract or hypothetical questions. The person seeking relief must have “a real interest” and relief will not be granted if the question “is purely hypothetical”, if relief is “claimed in relation to circumstances that (have) not occurred and might never happen” or if “the court’s declaration will produce no foreseeable consequences for the parties”” (citations omitted).
See also the cases referred to and discussion by Mildren J in re Application under the Status of Children Act (2002), 167 FLR 298 commencing at p 308.
The facts have been established. Unless the question raised is limited to one arising from the facts found, then it will be hypothetical or academic. If it does arise on the facts as found then the issue is whether the appellant has a real interest in it. If the interest claimed by the appellant is that he did not act in such a way as to call for the exercise of the implied powers of a Magistrate in a Juvenile Court to direct that he leave the court and in default that he be simply removed from it and no more, then it is hypothetical or academic. That is not what happened and a declaration ought not to be made.
However, if the interest claimed by the appellant is that he had a right to be at liberty, then that is a sufficient interest, and I would declare that in the circumstances proved the appellant had a right not to be deprived of his liberty and that the learned Magistrate had no jurisdiction and power to direct that he be taken into custody.
Such a declaration would serve to oblige the appellant and the learned Magistrate to observe in future the rights and obligations which the application of the law to the established facts has shown to exist.
In the course of the proceedings a question was raised as to the joining of the Northern Territory of Australia as defendant. The learned Solicitor General, appearing on behalf of the defendant, did not object to it being so joined so that a proper contradictor would be supplied. In many of the cases referred to in these reasons, it will be seen that the judicial officer has been personally named as the defendant or respondent for example, Lewis v His Honour Judge Ogden and in Ex parte Bellanto. In the course of submissions we also were referred to a number of other cases on various points in which the judicial officer was named as the contradictor either by his name or office, for example Hutchinson Pollard v The Chief Justice of the Supreme Court of Hong Kong (1868) LR2 106 and The King v Forster ex parte Isaacs (1941) VLR 77. The reference was to his Honour Judge Forster of the County Court of Melbourne. In another case “The Magistrates Court of Victoria at Heidelberg” was appellant in proceedings taken to challenge its decision where instead of appearing only as a submitting party it chose to participate in the proceedings to support its decision. In re Perkins; Mesto v Galpin the Judge signed an arrest warrant in relation to alleged contempt by a barrister, the barrister appealed naming the Judge and the other parties to the proceedings as respondents. The Attorney-General was granted leave to intervene. The Judge was a Judge of the Supreme Court of Victoria. In the appeal it was held that it was inappropriate to make the Judge a respondent, the proper respondent is The Queen “Since her Majesty has the ultimate responsibility for the protection of the courts, the due administration of justice and the enforcement of the criminal law”. Reference was there made to Fraser v R (1984) 3 NSWLR 212 at 218-219. One of the reasons for arriving at that conclusion was that the Judge should not be seen as a party to proceedings in his own court.
That is not the same as a Magistrate being named as a party in proceedings in the Supreme Court. Nevertheless, in the ordinary course of events one would anticipate that a judicial officer against whom proceedings for prerogative relief, injunction or declaration is taken would abide by a decision of the court and not seek to take any part in the proceedings apart, perhaps, from being heard on any question of costs.
There being no objection, I am not disposed to say anything more about the agreement that the Northern Territory of Australia should be joined. But, it seems to me that the proper contradictor in a case involving an allegation of want of jurisdiction in a judicial officer is the Attorney-General, since, traditionally, the Attorney-General has the ultimate responsibility for the protection of the courts of the Territory.
I agree with the order proposed by Justice Thomas.
MILDREN J:
I have had the benefit of reading in draft the judgments prepared by

Martin CJ and Thomas J. I agree that the appeal should be allowed for the reasons which they give and with the orders proposed by Thomas J, but desire to add a few observations of my own.
In my opinion, a magistrate sitting as the Juvenile Court established under the Juvenile Justice Act has no power to order that a person, whether a legal practitioner or not, be taken into custody whilst he considers whether or not the person concerned is to be charged with contempt of court. Such a magistrate can only remand a person into custody when a charge has been laid.
The power of the magistrate to deal with contempt rests upon the provisions of s 18 of the Juvenile Justice Act which import the provisions of s 46 of the Justices Act. These latter provisions enable a magistrate to deal summarily with any contempt such as is enumerated in s 46(1). There is no statutory power to commit for contempt, except where the defendant is convicted and a sentence of imprisonment is imposed. The statute does not even provide for a person charged with contempt to be remanded into custody pending the hearing of the charge. However, it may be assumed that in certain circumstances the behaviour of a particular individual may warrant that person's arrest, either by a police officer exercising his powers under

s 123(1) of the Police Administration Act, or by some other citizen in the circumstances envisaged by s.441(2) of the Criminal Code. In this respect, a magistrate has no powers of arrest greater than that of a citizen.
The learned magistrate did not purport to arrest the appellant; he directed the police auxiliary to take him into custody. At this stage, no charge had been laid. The facts do not suggest that the appellant could have been lawfully arrested under s 441(2) of the Code. The police auxiliary did not purport to arrest the appellant under s 123(1) of the Police Administration Act. It is axiomatic that before a person can be held in custody of any kind, subject to any special power conferred by the legislature, there must be a valid arrest or the order of a judicial officer remanding a person into custody against whom a charge has been laid, or an order committing a person to prison following the imposition of a sentence of imprisonment. Even in this Court the procedures provided by O 75 do not envisage a Judge having the power to cause a person to be held in the cells whilst the Judge decides whether or not to charge a person with contempt. There is in my opinion no need to imply such a power. If a person's behaviour in Court is such that he should be held in custody, there should be no difficulty in informing him that he is being remanded for contempt of court even if, at that stage, the charge has not been precisely formulated.
I agree also that the appellant is entitled to a declaration. His liberty has been taken from him without any lawful authority, and he has no other means of redress. The courts have always treated the liberty of the subject as a matter of the greatest importance. The appellant's prominence as a member of the legal profession has resulted in considerable publicity having been given to these unfortunate circumstances which I have no doubt have affected his personal reputation. The consequences may extend into the future, for all that is known. The declaration proposed may redress some of the harm done: cf Ainsworth v Criminal Justice Commission (1992)

175 CLR 564 at 582.
THOMAS J
This is an appeal from a decision of a judge at first instance to refuse the appellant’s application for a declaration.
The appellant had issued an Originating Motion seeking the following order:
“A declaration that Richard Wallace, a Stipendiary Magistrate of the Northern Territory of Australia, in directing that the Plaintiff leave the Court and causing the Plaintiff to be taken into custody and incarcerated on 6^th July, 2001:
(a)acted without jurisdiction and/or without power;
(b)acted beyond jurisdiction and/or beyond power; and
(c)failed to accord procedural fairness.”
The background to this matter is set out by his Honour in his reasons for judgment par 8 to 24 inclusive which reads as follows:
“Background
[8]     The plaintiff is a man of around thirty years of age. He was admitted as a solicitor of the Supreme Court of New South Wales in August 1998. He worked as a legal practitioner in Sydney for the Children’s Legal Service of the NSW Legal Aid Commission between September 1998 and November 2000. In January 2001 he commenced work as a legal practitioner with the North Australian Aboriginal Legal Aid Service (“NAALAS”). His principal duties were to appear as counsel for young Aboriginal persons in the Juvenile Court.
[9]     On 25 May 2001, he was assigned to appear for a 16 year old boy who I shall refer to as SJS. SJS was facing a charge of unlawful damage and, if convicted, an alleged breach of a good behaviour bond which could have potentially resulted in a four month custodial sentence. SJS was also charged with carrying an offensive weapon (a knife). This last charge proved to be the trigger for the unfortunate events which culminated in the present proceedings.
[10]   On 24 August 2000, the Northern Territory Police Force had implemented a “Juvenile Pre-Court Diversion Scheme” (‘the diversion scheme’) as a result of an agreement between the Northern Territory and Commonwealth governments. The aim of the diversion scheme is to divert juveniles away from the formal justice system and the courts. The diversion scheme provides for different levels of response to juvenile offending: verbal and written warnings, formal cautions, family conferences, victim/offender conferencing, and formal or informal community-based programmes. Prosecution is to be adopted as a “last resort”.
[11]   It is not proposed here to describe the operation of the diversion scheme in any detail. However, it is to be noted that management and implementation of the scheme rests with the Police Force. The scheme envisages that a decision whether to divert a juvenile will be made by a police officer of appropriate rank before prosecution action is initiated – albeit the scheme is sufficiently flexible to allow for a juvenile to be diverted even after he has been charged and appeared initially in the Juvenile Court.
[12]   On 25 May 2001, the plaintiff learnt from SJS that he had been told by a police officer that he might or would be dealt with under the diversion scheme for the offensive weapon charge. The police prosecutor (Sergeant Perry) confirmed that the issue of diversion was under consideration in a mention before Mr Wallace, SM in the Juvenile Court. The matter was adjourned to 6 July 2001.
[13]   According to the plaintiff’s affidavit sworn on 1 November 2001, he met SJS and his parents at the Juvenile Court on 6 July 2001. The plaintiff’s attention was focussed on a pre-sentence report prepared in relation to the unlawful damage charge faced by SJS. He had assumed the diversion of the offensive weapon charge “was either still under consideration or going ahead”. The plaintiff did not confirm this with either the police prosecutor (Sergeant Perry), SJS or the parents of SJS prior to his appearance in the Juvenile Court.
[14]   The learned magistrate enquired about progress with the diversion of the offensive weapon charge. Sergeant Perry indicated that SJS had been considered unsuitable for the diversion scheme. The plaintiff states that this came as a complete surprise to him. In response to questions from the learned magistrate, the plaintiff indicated that SJS would plead guilty to the offensive weapon charge and was then granted an adjournment to confirm that those were his instructions.
[15]   During the adjournment, the mother of SJS telephoned Sergeant Bruce Porter and allegedly ascertained that approval had been granted for the offensive weapon charge to be dealt with under the diversion scheme. The plaintiff was instructed to seek a further adjournment of the proceedings in the Juvenile Court to enable this to proceed. What occurred next lies at the heart of the present application.
[16]   Mr Wallace, SM returned to the bench. The plaintiff indicated: “We’re ready to go with the case (of SJS)”. The transcript continues:
“HIS WORSHIP:   It’s ready to go?
MR O’BRIEN:   Yep.
HIS WORSHIP:   Okay, Would you ask SJS to step in, please?
Yes, Mr O’Brien, in relation to the parents of SJS, it’s his mother sitting on his right and ---
MR O’BRIEN:   And his ---
HIS WORSHIP:   --- his stepfather on his left?
MR O’BRIEN:   Yeah, that’s right.
HIS WORSHIP:   And his stepfather’s name is?
MR O’BRIEN:   SC
HIS WORSHIP:   Thank you. I’m sorry to have to ask this, but what name does Steven’s mother use?
MR O’BRIEN:   MH
HIS WORSHIP:   MH? Fine. Is that matter ready to proceed?
MR O’BRIEN:   Yes.
HIS WORSHIP:   And it’s going to be a plea, is it, Mr O’Brien?
MR O’BRIEN:   Well, Your Worship, there’s – it’s – it’s – before I go – get to that, I – I would like to just tell you – inform you as to the – to the procession of these matters because there’s, in my submission, some concern as to the – to the way in which these police diversions are working in practise.
In this case, for example – well, in this case, a short time after 25 May when the matter was last mentioned in court, Constable Dye, who was – who is mentioned as the arresting officer in the precis, came over and visited – visited SJS and his family. They spoke to – to SC. Constable Dye did. She also spoke to – MH, SJS’s mother, and spoke to SJS.
HIS WORSHIP:   Mr O’Brien, can I cut you off there? I’m sitting here as a magistrate in a court of law with a person before me with a charge. What is he ---
MR O’BRIEN:   Yeah.
HIS WORSHIP:   --- going to do about the charge? That’s the question.
MR O’BRIEN:   Well, Your Worship, the – these – it’s our submission ---
HIS WORSHIP:   Mr O’Brien, you’re a lawyer, acting for a person who is on a ---
MR O’BRIEN:   Yes.
HIS WORSHIP:   --- charge, in a court, and the ---
MR O’BRIEN:   Yes.
HIS WORSHIP:   --- question is, what is your client going to do about that charge? I don’t want to hear about administrative procedures by other institutions in this community taking place outside the court. I want an answer to the question I’ve asked you, and if you’re not prepared to answer the question, go away and get somebody who is prepared to act for SJS, the way lawyers act, in ---
MR O’BRIEN:   Well, Your Worship ---
HIS WORSHIP:   --- relation to charges in court.
MR O’BRIEN:   Your Worship, I’m offended by that because I think that it’s important that you know about the process and how these matters come here in the first place.
HIS WORSHIP:   Mr O’Brien, I’m not going to hear from you any longer, unless you’re going to tell me what SJS wants to do about this charge in this court this day.
MR O’BRIEN:   What SJS wanted to do with this charge was have the matter diverted by the police.
HIS WORSHIP:   Mr O’Brien, if you leave the court, please? You are not assisting. Out you go.
MR O’BRIEN:   Your Worship, I object to that – to that – to that ---
HIS WORSHIP:   Out you go, Mr O’Brien.
MR O’BRIEN:   --- to that order.
HIS WORSHIP:   Would you take Mr O’Brien out of the court, please?
MR O’BRIEN:   My client sits here unrepresented today if I’m – if I’m ordered to leave, Your Worship.
HIS WORSHIP:   He sits here unrepresented in answer to the question I’ve been putting to you for the last couple of minutes, because you won’t answer it. Out you go, Mr O’Brien.
MR O’BRIEN:   Your Worship, the issue of police diversions ---
HIS WORSHIP:   Mr O’Brien, unless you leave ---
MR O’BRIEN:   --- is an important issue.
HIS WORSHIP:   --- immediately, I shall ask you why I should not deal with you for contempt of court.
MR O’BRIEN:   Can I arrange for representation of my client?
HIS WORSHIP:   Mr O’Brien. Will you take Mr O’Brien into custody, please, officer, and I’ll talk to him this afternoon as to why I should not deal with him further for contempt of court.
MR O’BRIEN:   It’s quite ridiculous, quite ridiculous.
MH:   Your Honour, I’ve just spoken to the sergeant on the phone before and he’s spoken to me and I spoke to him about SJS’s diversion. It’s all in place. I’ve got it written down on this paperwork there that it’s all going to be all put in place. They’re going to get back to me.
HIS WORSHIP:   Yes, thanks for that, Ms MH.
MH:   On his diversion.
MR O’BRIEN:   And that was the information I wanted to convey. It would’ve taken a very short period if you were to hear me.
HIS WORSHIP:   Remove Mr O’Brien, please.”
[17]   The learned magistrate’s direction to take the plaintiff into custody was addressed to a police auxiliary who escorted the plaintiff to the area of the holding cells in the Magistrates Court building. The plaintiff was permitted to telephone a colleague at the NAALAS Magistrates Court office. The plaintiff was lodged in a cell and given a cup of coffee. Some ten minutes after he was first escorted from the Juvenile Court, he was brought back to Court at the request of the learned magistrate.
[18]   In the absence of the plaintiff, the learned magistrate had adjourned the offensive weapon charge to 20 July 2001 (to resolve the issue of whether the charge was to be dealt with under the diversion scheme). The transcript then continues:
“HIS WORSHIP:   Mr O’Brien, that charge has been adjourned until – well, a couple of weeks, the 20^th. In relation to the other matters, are you ready to proceed with those? I propose to deal with the – well, not deal with the matter, but to take that one step further after lunch.
MR O’BRIEN:   I apologise to Your Worship for what I said. I was not acting in any malice. Perhaps I was over-zealous. I was attempting to relay instructions, and I can only make good my – my apology to you today.
HIS WORSHIP:   Thank you for that, Mr O’Brien. I’ll consider what you’ve said and I doubt whether I’ll go ahead with the matter, but, as I say, I’ll make up my mind at 2 o’clock. If I am going to go ahead, I need to frame some sort of a bill of goods. As I say, I don’t expect that I will, but thank you for that.”
[19]   After a further short adjournment, the learned magistrate indicated that he proposed to take the matter no further and the plaintiff expressed his thanks.
[20]   In his affidavit of 1 November 2001, the plaintiff states that in making his apology to the learned magistrate, he acted upon the advice of a NAALAS colleague. The plaintiff adds that he did not believe that he had done anything wrong or such that he should otherwise be required to make an apology.
[21] Almost two months after the incident, the plaintiff instructed his solicitor to write to His Honour the Administrator and the Attorney-General. The letters, dated 5 September 2001, sought to have the learned magistrate removed from office pursuant to s 10 of the Magistrates Act on the ground that the learned magistrate was either incompetent to carry out his duties or otherwise unsuited to the performance of his duties. By letter of 3 October 2001, the Attorney-General advised the plaintiff’s solicitor that he had reached the conclusion that the learned magistrate had “acted within his powers as a magistrate in relation to the incident in question” and had recommended to His Honour the Administrator that no action be taken in respect of the matter. Subsequently, the plaintiff commenced the present proceedings.
[22]   It is apparent from the extracts of the transcript to which I have referred that the learned magistrate repeatedly pressed the plaintiff to advise the court what SJS was going to do in respect of the offensive weapon charge whilst the plaintiff attempted to continue his general submissions about the diversion scheme. Eventually the learned magistrate directed the plaintiff to leave the court on two occasions. The plaintiff objected. The learned magistrate then directed that the plaintiff be taken from the court. The plaintiff again objected and the learned magistrate warned the plaintiff that unless he left the court immediately, he would be asked why he should not be dealt with for contempt. The plaintiff continued his attempts to address the bench and the learned magistrate directed that he be taken into custody.
[23]   In making the direction that the plaintiff be taken into custody, the learned magistrate indicated that he would “talk to him this afternoon as to why I should not deal with him further for contempt of court.”
[24]   When the plaintiff was brought back to Court, the learned magistrate acknowledged that he would need to frame a specific charge (“some sort of bill of goods”) if he decided to proceed with a charge of contempt.”

The Notice of Appeal set out some 40 grounds of appeal. Grounds 3, 4, 5, 6 and 17 were not pressed on this appeal.
I propose to deal with the Grounds of Appeal which go to the appellant’s submission that the learned stipendiary magistrate in proceeding as he did acted without jurisdiction and without power. These grounds are as follows:
“2.The learned Judge erred in holding the Appellant’s complaint was merely an error of law rather than an issue of jurisdiction.
12.The learned Judge erred in finding that proceedings such as that the subject to this appeal are not to be encouraged and the policy reasons underlying judicial reticence in the present context militate against exercise of discretion in such cases.
13.The learned Judge erred in holding that any error made by the learned Magistrate must necessarily have been an error of law not jurisdiction.
14.The learned Judge erred in finding that the Magistrate had power to remand the Appellant in custody while he decided whether to proceed with a charge of contempt and further erred in holding that it necessarily follows that any errors he made in resolving the matter were concerned with questions of law not jurisdiction.
15.The learned Judge erred in failing to determine that the learned Magistrate had no authority nor any basis whatsoever to direct the Appellant to leave the Court and to cause the Appellant to be incarcerated.
19.The learned Judge erred in holding a Magistrate’s powers are not limited to those conferred by s 46 of the Justices Act in situations of the present kind.
20.The learned Judge erred in holding that a power of remand must necessarily be implied.
21.The learned Judge erred in holding that if a legal practitioner may be removed from a Courtroom that such a power imports custody whereby it follows that he may be kept in custody while the Juvenile Court decides whether it is necessary to take any further action.
22.The learned Judge erred in finding that the existence of such a power of incarceration as was purported by exercise by the learned Magistrate, has been impliedly recognised by the New South Wales Court of Appeal in Klewer v District Court of New South Wales [1998] NSWC 396 Unreported.
23.The learned Judge erred in holding that it is a necessary incident of a Magistrate’s powers to deal with a person for contempt and/or to maintain order in the Juvenile Courtroom that the learned Magistrate may direct a person be held in custody until such time as it is convenient to deal with him (subject to considerations of reasonableness).
24.The learned Judge erred in failing to find that the incarceration of the Appellant was wholly unreasonable.
25.The learned Judge erred in holding that questions as to the manner of exercise of the power by the learned Magistrate (including the alleged failure of the learned Magistrate to accord procedural fairness) are irrelevant and further erred in holding that such an enquiry goes only to the question whether the learned Magistrate was in error as to the manner in which he exercised the power and not to questions of jurisdiction.
32.The learned Judge erred in holding that the learned Magistrate merely erred in exercising a power which was available to him.
33.Having previously held that the declaration sought by the Appellant was an appropriate vehicle for the Appellant’s purposes and that the Appellant was entitled to contest the lawfulness of the Magistrate’s actions, the learned Judge failed to adjudicate upon the Appellant’s application.
34.The learned Judge erred in making the unarticulated assumption that all errors of law made by a Magistrate do not involve jurisdictional error and further erred in failing to consider whether any errors of law made by the learned Magistrate were jurisdictional errors.
35.The learned Judge erred in failing to recognise that an inferior court falls into jurisdictional error if it mistakenly asserts the existence of jurisdiction.
36.The learned Judge erred in failing to recognise that an inferior court falls into jurisdictional error if it misapprehends or disregards the nature or limits of its functions or powers.
37.The learned Judge erred in failing to recognise that an inferior court will fall into jurisdictional error where it acts upon a mistaken assumption or a misconception or disregard of the nature or limits of jurisdiction.
38.The learned Judge erred in failing to recognise that an inferior court falls into jurisdictional error if it misconceives the extent of its powers in the circumstances of the particular case.
39.The learned Judge erred in failing to recognise that an inferior Court falls into jurisdictional error if it wholly fails to accord procedural fairness.
40.The learned Judge erred in failing to take into account the Appellant’s right of audience in the Juvenile Court, pursuant to s 19 Legal Practitioners Act (NT), and SJS’s right to be represented, in the Juvenile Court, pursuant to s 29 Justices Act (NT).”
Mr Southwood QC, solicitor for the appellant, submitted that the learned trial judge erred in determining the following:
“a.Counsel for the Appellant accepted that a Magistrate has the power to remand a person in custody while he decides whether to proceed with a charge of contempt against the person (paragraphs 36 and 37, AB 321 and 322);
b.immediately it is accepted a Magistrate has the power to remand a person in custody while he decides whether to proceed with a charge of contempt, it necessarily follows that any errors he makes are concerned with questions of law, not jurisdiction ([37], AB 321 - 322); and
c.the Juvenile Court has an implied power to keep a person, who has been excluded from the courtroom, from returning to the courtroom by remanding the person in custody (paragraph [47], AB 325).”
Counsel for the respondent, Mr Pauling QC, adopted with respect the reasoning of Bailey J at par [50] of his reasons for judgment which were as follows:
“I am satisfied that it is a necessary incident of a magistrate’s powers to deal with a person for contempt and/or to maintain order in the courtroom that the magistrate may direct a person be held in custody until such time as it is convenient to deal with them (subject to considerations of reasonableness). Accordingly, in the present context, questions as to the manner of exercise of the power (including the alleged failure of His Worship to accord procedural fairness) are irrelevant. Such an inquiry goes only to the question whether the learned magistrate was in error as to the manner in which he exercised the power and not to questions of jurisdiction.”
The subsidiary argument on behalf of the respondent is that the magistrate in not framing a charge of contempt before remanding the appellant in custody committed an error of law not jurisdiction. This submission is to the effect that, if all that occurred, was that the magistrate made a slip in not charging Mr O’Brien with contempt before remanding him in custody, then such a slip does not amount to error in jurisdiction.
I do not agree with these submissions. The Juvenile Court does have implied powers (Byndel v Gokel 125 NTR 1 at 4). It has been conceded that those powers include the power to direct a practitioner to leave the court. This of course is subject to a legal practitioner’s right of audience before a court as set out in s 19 of the Legal Practitioners Act which provides as follows:
“19.   Right to practise
Subject to this Act, a person whose name is on the Roll of Legal Practitioners –
(a)     is entitled to practise in the Territory –
(i)     as a barrister and solicitor;
(ii)     as a barrister; or
(iii)    as a solicitor; and
(b)has the right of audience in any court of the Territory.”
See also s 29 Justices Act:
“29.   Parties to have assistance of counsel
Every party to any proceeding before Justices shall be at liberty to conduct his case or to make his application or his full answer to the charge or complaint (as the case may be) and to have the witnesses examined and cross-examined, by a legal practitioner: Provided that nothing herein contained shall be deemed –
(a)to dispense with the personal attendance before the Justice of any defendant who is charged with an indictable offence; or
(b)to authorize Justices to proceed to hear or to hear and determine any charge of an indictable offence in the absence of the defendant.”
The Juvenile Court is a court of statute. It is limited to its statutory power to fine or commit a person for an offence under s 46 of the Justices Act (NT) which provides as follows:
“46.   Contempt of Court
(1)     Any person who –
(a)wilfully interrupts the proceedings of the Court;
(b)conducts himself disrespectfully to the Justice or Justices during the sittings thereof;
(c)obstructs or assaults any person in attendance, or any officer thereof, in the execution of his duty, in view of the Court; or
(d)wilfully disobeys any order made by the Court under section 61(2) –
shall be guilty of an offence.
Penalty:     $20 or imprisonment for one month.
(2)     Any person who in the opinion of the Justice or Justices wilfully prevaricates in giving evidence to the Court of Summary Jurisdiction shall be guilty of an offence.
Penalty:     $20 or imprisonment for one month.
(3)     The Justice or Justices constituting the Court in whose presence any offence under this section is committed may forthwith convict the person guilty of the offence, either on their own view or on the oath of some credible witness, and may issue their warrant of commitment accordingly.
(4)     Every warrant of commitment under this section shall be good and valid in law without any other order, summons, or adjudication whatsoever.
(5)     If any person found guilty of any offence under subsection (1) makes to the convicting Justices, before the rising of the Court, such an apology for the interruption or misbehaviour as they in their uncontrolled discretion deem satisfactory the Justices may, if they think fit, remit the penalty either wholly or in part.”
Mr Wallace SM had no additional jurisdiction or power to remand Mr O’Brien in custody while deciding whether to proceed with a charge of contempt against him.
An implication is only drawn when it is necessary (Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (1920) 28 CLR 129 at 155). I agree with the submission of counsel for the appellant that courts do not construe a statute in such a way as to abrogate or suspend a fundamental freedom unless Parliament makes its intention unmistakably clear (Re Bolton & Anor; Ex Parte Beane (1987) 162 CLR 514 at 523; Coco v The Queen (1994) 179 CLR 427 at 437).
I do not consider there was any implied or statutory power to have

Mr O’Brien taken into custody while Mr Wallace SM was contemplating contempt proceedings against him.
Mr Pauling QC submitted on behalf of the respondent that it was not appropriate to make a declaration in this case even if the appellant succeeded with the appeal because there would be no foreseeable consequences flowing from such a declaration (Gardiner & Another v
The Dairy Industry Authority of New South Wales [1977] 52 ALJR 180).
In Ainsworth and Another v Criminal Justice Commission (1992) 175 CLR 564, Mason CJ, Dawson, Toohey and Gaudron JJ marked out the boundary of judicial power at 581 - 582:
“It is now accepted that superior courts have inherent power to grant declaratory relief. It is a discretionary power which ‘[i]t is neither possible nor desirable to fetter … by laying down rules as to the manner of its exercise.’ However, it is confined by the considerations which mark out the boundaries of judicial power. Hence, declaratory relief must be directed to the determination of legal controversies and not to answering abstract or hypothetical questions. The person seeking relief must have ‘a real interest’ and relief will not be granted if the question ‘is purely hypothetical’, if relief is ‘claimed in relation to circumstances that [have] not occurred and might never happen’ or if ‘the Court’s declaration will produce no foreseeable consequences for the parties’.”
Mr Pauling QC distinguished Ainsworth and Anor v Criminal Justice Commissionr (supra) where the High Court held a declaration was appropriate because of the harm caused to the business and commercial reputation of the appellant who the High Court found, were denied procedural fairness by the Commission. It is Mr Pauling’s submission that in the matter before this Court, Mr O’Brien has not suffered any damage to his reputation. Mr Pauling QC submits that Mr O’Brien has a decision from the judge at the first instance who found that the magistrate had committed an error of law in placing Mr O’Brien into custody and the observations made by his Honour that the magistrate had erred in exercising a power that was available to him.
Mr Pauling QC referred to the playing of the tape of the proceedings before the learned stipendiary magistrate to this Court. I agree with Mr Pauling’s assessment that throughout the proceedings Mr Wallace SM remained patient and courteous, he repeatedly asked Mr O’Brien a question as to whether Mr O’Brien’s client was intending to enter a plea to the charge. The question was not answered by Mr O’Brien.
I agree with Mr Pauling’s submission that this Court has a discretion whether or not to grant the application for a declaration. If there are no foreseeable consequences which would flow from such a declaration then the Court can refuse the application.
I agree with the observations of his Honour the judge at first instance as to Mr O’Brien’s part in these proceedings. I agree that a reading of the transcript demonstrates with the benefit of hindsight that Mr O’Brien and the learned stipendiary magistrate were at cross purposes. Mr Wallace SM was not aware as Mr O’Brien was, that Mr O’Brien’s client had been accepted into the Police Diversionary Scheme. The information given to

Mr Wallace SM by the police prosecutor, as it turns out quite incorrect information, was that Mr O’Brien’s client had not been accepted into the Police Diversionary Scheme. On this information, Mr O’Brien’s submissions relating to the Police Diversionary Scheme generally were from the magistrate’s point of view quite irrelevant and unnecessary.
I agree with his Honour that had Mr O’Brien simply answered the question that his client would not be entering a plea and then proceeded to explain why, this whole unfortunate situation could have been avoided.
Mr Southwood QC for the appellant, agreed that the Court does have a discretion as to whether to grant the declaration. It was Mr Southwood’s submission that if the Court finds for the appellant, then a declaration should be made because it is a matter of public importance to the legal profession to properly delineate the powers of the magistrate with respect to legal practitioners.
On balance I have accepted Mr Southwood’s submissions. I would grant the application by the appellant for a declaration on the basis that the magistrate had no jurisdiction to order Mr O’Brien be taken into custody.
For these reasons, I would make an order in the following terms:
A declaration that Richard Wallace, a Stipendiary Magistrate of the Northern Territory of Australia, in directing and causing the plaintiff to be taken into custody and incarcerated on 6 July 2001, acted without jurisdiction and/or without power.
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