Oates, Anthony Gordon v The Honourable Daryl Williams QC in his Capacity as Attorney-General

[1997] FCA 1278

FEDERAL COURT OF AUSTRALIA

PRACTICE AND PROCEDURE - Strike out application - Whether appropriate - Principles to be applied - Principal application challenging correctness of previous decisions - Whether the comity principle applies - Federal Court Rules Order 20 rule 2.

Murex Diagnostics Australia Pty Ltd v Chiron Corporation (1995) 128 ALR 525 (Applied)
Anderson v Commonwealth Bank of Australia, unreported, FC of A, Lindgren J, 1 November 1995 (Applied)
Webster v Lampard (1993) 177 CLR 598 (Applied)
Nicol v Attorney General for Victoria [1982] VR 353 (Considered)
Buffier v Bowen (1988) 32 A Crim R (Considered)

ANTHONY GORDON OATES v THE HONOURABLE DARYL WILLIAMS QC IN HIS CAPACITY AS ATTORNEY-GENERAL AND MINISTER FOR JUSTICE OF AUSTRALIA
WG90 OF  1997

FINN J
CANBERRA
21 NOVEMBER 1997

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	WG90 of  1997

BETWEEN:	ANTHONY GORDON OATES APPLICANT
AND:	THE HONOURABLE DARYL WILLIAMS QC IN HIS CAPACITY AS ATTORNEY-GENERAL AND MINISTER FOR JUSTICE OF AUSTRALIA RESPONDENT
JUDGE:	FINN J
DATE OF ORDER:	21 NOVEMBER 1997
WHERE MADE:	CANBERRA

THE COURT ORDERS THAT:

1. The notice of motion be dismissed.

1. The Respondent to pay the Applicant’s costs.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY	WG90 of 1997

BETWEEN:	ANTHONY GORDON OATES APPLICANT
AND:	THE HONOURABLE DARYL WILLIAMS QC IN HIS CAPACITY AS ATTORNEY-GENERAL AND MINISTER FOR JUSTICE OF AUSTRALIA RESPONDENT

JUDGE:	FINN J
DATE:	21 NOVEMBER 1997
PLACE:	CANBERRA

REASONS FOR JUDGMENT

This motion yet again illustrates the caution that should be shown in the seeking to invoke the power of this Court under O20 r2 of the Federal Court Rules to dismiss an application because it discloses no reasonable cause of action, or is frivolous or vexatious.  Given the threshold to be reached before an order will be made under this rule, the sole achievement of the present motion is that it has provided a rehearsal for the later presentation of substantially the same argument as here, albeit it will then be judged on its merits. The parties accept that for present purposes it needs to be shown that application (or part thereof) subject to attack must be “unarguable”: Murex Diagnostics Australia Pty Ltd v Chiron Corporation (1995) 128 ALR 525; or “not deserving of a hearing”; see Anderson v Commonwealth Bank of Australia, unreported, FC of A, Lindgren J, 1 November 1995; that is raises “no real question to be tried”: Webster v Lampard (1993) 177 CLR 598 at 602.

The applicant in the principal proceedings, Anthony Gordon Oates, challenges a decision made on 5 January 1995 by the then Minister for Justice (the predecessor of the present respondent) in which the Minister gave his consent under s 1316 of the Corporations Law to the institution of proceedings for offences under s 229 and s 570 of the Companies (Western Australia) Code notwithstanding the elapse of 5 years from the alleged commission of the offence. Put in short form, Mr Oates’ claim is that in not being advised that the Minister was considering giving his consent under s 1316 and in not being given the opportunity to make submissions as to why consent should not be given, he was denied procedural fairness. Relief by way of declaration and writs of certiorari and mandamus are sought.

Before turning to the arguments on the motion it is appropriate to set out the precise terms of s 1316. They are:

SECTION  1316 TIME FOR INSTITUTING CRIMINAL PROCEEDINGS

1316 Despite anything in any other law, proceedings for an offence against this Law may be instituted within the period of 5 years after the act or omission alleged to constitute the offence or, with the Minister’s consent, at any later time.

The respondent’s motion to dismiss the application is founded on the following two propositions:

1. Decisions to commence prosecutions are not generally reviewable by the courts as no public duty is involved and there is no obligation to afford natural justice: Barton v R (1980) 147 CLR 75 at 94; Clyne v Attorney General (Commonwealth) (1984) 55 ALR 624 at 632-633.

1. The decision sought to be reviewed, which is a decision anterior to a decision to prosecute, was made pursuant to a statutory provision that does not impose a legally enforceable duty on the Minister, and the decision was not attended by a requirement to afford natural justice.  The concept of “legitimate expectation” as set out in Kioa v West (1985) 159 CLR 550 does not encompass an expectation of immunity from prosecution for an act or omission where the statutory period for commencement of a prosecution (without ministerial consent) has expired: Nicol v Attorney General for Victoria [1982] VR 353 per Murphy J at 360-361; Buffier v Bowen (1988) 32 A Crim R, 222 at 229; Murchison v Keating (1984) 54 ALR 386 at 394-5; Commission of Police v Reid (1989) 16 NSWLR 453 at 462.

Particular reliance in the above is placed upon Nicol’s case and Buffierv Bowen. Both involved precursor provisions to s 1316. In them it was held the provisions respectively in question could not give rise to such a legitimate expectation that the person charged (a) would not be proceeded against (Nicol); or (b) would be given a prior opportunity to be heard (Buffier).  In Buffier, moreover, Neaves J of this court held that the giving of a consent of the s 1316 type:

“does not affect any right or interest of [a] person in the sense in which those expressions are used in [Kioa v West (1985) 159 CLR 550 at 582-583; 584-585 per Mason J]”.

Buffier being a decision of a single judge of this court, counsel for the respondent pressed upon me the principle of “comity” applied to first instance decisions in this court:  I should follow Buffier unless I consider it to be clearly wrong: see eg Bank of Western Australia Ltd v Commissioner of Taxation (1995) 55 FCR 233 at 255.

Counsel for Mr Oates, Mr Barker QC, seeks to attack directly the decisions upon which the respondent relies and does so on the basis that such have been the developments in, and changes in our understanding of the foundations of, the duty to act fairly that when properly considered today a provision of the character of s 1316 may well be found such that procedural fairness regulates its exercise.

To illustrate the modern orientation in procedural fairness, counsel referred to the observations of McHugh J in Johns v Australian Securities Commission (1993) 178 CLR 408 at 470:

A presumption exists that the exercise of statutory power is conditional upon the observance of the rules of natural justice.  As Mason CJ, Deane and McHugh JJ said in Annetts v McCann:

“It can now be taken as settled that, when a statute confers power upon a public official to destroy, defeat or prejudice a person’s rights, interests or legitimate expectations, the rules of natural justice regulate the exercise of that power unless they are excluded by plain words of necessary intendment”.

An intention to exclude the rules of natural justice must be clearly evident in the express words of a statute.  Such an intention cannot be gleaned from “indirect references, uncertain inferences or equivocal considerations”.

Responding to the argument put by the respondent that a consent to instituting criminal proceedings does not as such affect rights, interests or legitimate expectations of the person the subject of the consent because it is no more than a consent to proceed, it was submitted for the applicant that the consent to institute proceedings was so connected to the decision to prosecute - it was a “precondition” of it - as to be an integral element in a process capable of affecting rights, interests or legitimate expectations.  Reliance in this was placed upon Hot Holdings Pty Ltd v Creasy (1996) 185 CLR 149, and Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 at 580.

For the purposes of the present motion Mr Barker QC advanced the proposition that, in light of High Court decisions subsequent to Nicol’s case and to Buffier v Bowen, it was arguable that s 1316 itself gave a legitimate expectation that a person affected would be heard. The High Court decisions relied upon were South Australia v O’Shea (1987) 163 CLR 378 at 417-418; Haoucher v Minister for Immigration and Ethnic Affairs (1990) 169 CLR 648; Attorney-General for New South Wales v Quin (1990) 170 CLR 1; and Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273. He did concede, though, that with judicial appreciation of the burden of “legitimate expectation” not altogether settled, that may prove ultimately not to be the appropriate rubric for Mr Oates’ claim.

More importantly, it was submitted that the s 1316 power affected Mr Oates’ “rights and interests”. It was submitted that this consideration founded the attack to be made on Nicol and Buffier. It was said that in determining whether a duty to act fairly arose one needed to look to the legislation in question for the purpose of discerning what, if any, rights or interest of a person were actually affected by the exercise of the power in question. Emphasis in this was placed upon the fact that s 1316 was in effect a limitation provision subject to a power to extend time, and was not, for example, a bare consent to prosecute provision such as was to be found in Murchison v Keating (1984) 54 ALR 386 and Commissioner of Police v Reid (1989) 16 NSWLR 453 to which different considerations might apply. Against the setting that, subject to the consent, Mr Oates had through passage of time achieved immunity from prosecution, it was submitted the regard should be had to the objects, scope and purpose of the legislation both in giving that immunity and in maintaining the exception, as one considers the effect on the person in question in the granting of a consent. That there was a limitation period (itself apparently a feature of company legislation this century) bespoke a policy purpose in the Corporations Law beneficial (inter alia) to persons in Mr Oates’ position. As in civil cases, so it is said, finality is an important value and, within it, is the avoidance of prejudice to the person in question arising from the passage of time; cf the observations of McHugh J in Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 552. In emphasising the effects personal to someone in Mr Oates’ position, counsel rightly accepted that with a provision such as s 1316 there were other public interest considerations at play as well. The burden of what he was putting, as I understand it, is that the nature and manner of affection of Mr Oates’ interests and the sufficiency thereof for procedural fairness purposes, can only properly be appreciated after the objects and purposes of the legislation in question are themselves understood. It is this, it was submitted, that was lacking in the reasoning in Nicol and Buffier.

Put in short form, then, the matters the applicant wishes to argue are that (i) cases such as Nicol and Buffier assume that a consent of the s 1316 type does not as such affect a right or interest - a proposition that is open to challenge in light of the High Court’s decisions in Ainsworth v Criminal Justice Commission, above and Hot Holdings Pty Ltd v Creasy, above; and (ii) the nature, extent and sufficiency of that affection is only properly to be determined in light of the objects and purposes of the legislation in question.

I have set out the applicant’s submissions at some length.  I mean no disrespect to the respondent’s submissions in not dealing with these likewise.  Apart from the claim made in reply that no right or interest of Mr Oates that was recognisable for procedural fairness purposes was affected by the consent - itself an arguable matter - the respondent has done no more than assert the subsisting correctness of the status quo represented by Nicol and Buffier.

Bearing in mind the burden shouldered by a party invoking O20 r2 and the quite focussed character of the arguments raised by the applicant, it is impossible to say that those arguments do not deserve a hearing; that they raise no real question to be tried.  On the contrary, they invite response and resolution.  In saying this I do not comment upon their actual prospects of success.  I am merely saying that the applicant should be allowed to have them put.

The final comment I should make relates to the comity issue relied upon by the respondent.  It seems to me that is not an appropriate matter to which to have regard in a case of this variety where the issue in question is whether an earlier decision of this court is wrong.  In any event, as the applicant recognised, the application of the comity principle may itself necessitate an appeal simply for the purpose of having his case properly ventilated.

I dismiss the notice of motion with costs.

I certify that this and the preceding five (5) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Finn

Associate:

Dated:             18 November 1997

Counsel for the Applicant:	Mr M Barker QC Mr P Hannan
Solicitor for the Applicant:	Zilkens & Co
Counsel for the Respondent:	Mr P McLiver
Solicitor for the Respondent:	Australian Government Solicitors
Date of Hearing:	13 November 1997
Date of Judgment:	21 November 1997