Osenkowski v Magistrates Court of South Australia
[2006] SASC 345
•21 November 2006
SUPREME COURT OF SOUTH AUSTRALIA
(Full Court)
OSENKOWSKI & ANOR v MAGISTRATES COURT OF SOUTH AUSTRALIA & ANOR
[2006] SASC 345
Judgment of The Full Court
(The Honourable Chief Justice Doyle, The Honourable Justice Nyland and The Honourable Justice Anderson)
21 November 2006
HIGH COURT AND FEDERAL COURT - THE FEDERAL JUDICATURE GENERALLY - NATURE AND EXTENT OF JUDICIAL POWER
ADMINISTRATIVE LAW - JUDICIAL REVIEW - GROUNDS OF REVIEW - JURISDICTIONAL MATTERS
ADMINISTRATIVE LAW - JUDICIAL REVIEW - GROUNDS OF REVIEW - UNCERTAIN EXERCISE OF POWER
The appellant appeals against a fortification removal order made by a Magistrate and makes an application for judicial review - whether the provisions of the legislation creating and affecting a right of appeal to the Supreme Court confer on that Court a function inconsistent with its role as a repository of federal jurisdiction - consideration of the Kable principle in the context of the provisions of the Development Act 1993 (SA) and of the Summary Offences Act 1953 (SA) relating to fortification removal orders - the legislation does not permit the Commissioner of Police to proceed without notice to the person affected by the fortification removal order - it cannot be said that the secrecy surrounding the making of an order is incompatable with accepted judicial standards - other defects in the legislation, such as the fact that only a person served with a fortification removal order can later appeal, go only to the general fairness of the legislative scheme and do not enliven a Kable argument - the right of appeal to challenge the merits of the Magistrate's order does not lie under s 40 of the Magistrates Court Act 1991 (SA) nor under s 42 or under related provisions - the appeal on that ground is therefore incompetent - consideration of the application for judicial review for the reason that the fortification order does not disclose adequate grounds on which the order has been issued - s 74BC(1)(b) of the Summary Offences Act 1953 (SA) requires that there be a statement as to the grounds on which the order was issued - in the context of a wide ranging non-disclosure order sufficient grounds were disclosed by the Magistrate - there is no requirment at common law or under the relevant legislation for an order of this kind made by an inferior Court to state the reasons, as compared to the grounds, on which an order has been made - no error of a kind capable of supporting the appeal has been made out - appeal dismissed.
Summary Offences Act 1953 (SA) s 74BA, s 74BB, s 74BB(1)(b)(ii), s 74BB(3), s 74BB(5), s 74BB(6), s 74BB(7), s 74BC, s 74BC(1)(c), s 74BC(1)(b), s 74BC(1)(d), s 74BC(3), s 74BC(4), s 74BD, s 74BE, s 74BE(3), s 74BF(2), s 74BF(3), s 74BF, s BF(4), s 74BG, s 74BH, s 74BI, s 74BM; Judiciary Act 1903 (Cth) s 78B; Magistrates Court Act 1991 (SA) s 3(1), s 5, s 10, s 10(2), s 40, s 50(1), s 40(4), s 42, s 42(1), s 42(1a); Magistrates Court Rules (SA) r 29.01; Development Act 1993 (SA) s 84(2); Supreme Court Rules (SA) r 96b, r 97.04, referred to.
Kable v DPP (NSW) (1996) 189 CLR 51; Grollo v Palmer (1995) 184 CLR 348; Fardon v Attorney-General (Qld) (2004) 210 ALR 50, discussed.
Forge & Ors v Australian Securities and Investments Commission & Ors (2006) 229 ALR 223; Pasini v United Mexican States (2002) 209 CLR 246; R v Granger (2004) 88 SASR 453; Beck (2001-2002) 118 A Crim R 438; Ousley v The Queen (1997) 192 CLR 69; Craig v South Australia (1994-1995) 184 CLR 163, considered.
OSENKOWSKI & ANOR v MAGISTRATES COURT OF SOUTH AUSTRALIA & ANOR
[2006] SASC 345Full Court: Doyle CJ, Nyland and Anderson JJ
DOYLE CJ: On 9 December 2005, on application made by the Commissioner of Police, the Chief Magistrate made a “fortification removal order” relying on powers conferred by Part 16 of the Summary Offences Act 1953 (SA) (“the Act”). The order was directed to Mr Osenkowski and another man, in their capacity as the occupiers of premises in respect of which the order was made. The order directed that specified “fortifications” be removed from a dwelling house erected on the land.
Mr Osenkowski has appealed against the order, and against some associated orders made that day and on 8 March 2006. Mr Osenkowski has also issued proceedings by way of judicial review, naming the Commissioner and the Magistrates Court as defendants, and in those proceedings challenges the same orders.
The appeal and the judicial review proceedings challenge the validity of the provisions of the Act that provide for the making of the fortification removal order and for an appeal to the Supreme Court. The submission is that the provisions are invalid because provisions creating and affecting a right of appeal to the Supreme Court are an attempt to confer on the Supreme Court a function which is incompatible with the Court’s position, under the Constitution, as a potential repository of federal jurisdiction, because the functions conferred on the Court are incompatible with the integrity, independence and impartiality required of a Court which exercises jurisdiction under Chapter III of the Constitution. The submission invokes principles identified by the High Court in Kable v DPP (NSW) (1995-1996) 189 CLR 51. Put briefly, the submission is that the legislation so constrains the Magistrates Court when exercising its powers to make a fortification removal order, and so constrains this Court on appeal, that the appeal to this Court simply confers “an aura of respectability” on a decision made by the Magistrates Court in the course of proceedings that are inconsistent with or incompatible with the exercise of judicial power.
In the alternative the submission is that the orders are invalid because of errors in the making of the orders, the effect of which is to deny the Chief Magistrate jurisdiction to make the orders that he made, or because the orders are invalid because of errors of law on the face of the orders.
The submissions seemed to assume that if the provisions conferring powers on this Court were invalid, the provision for the making of a fortification removal order would also be invalid. That assumption was not developed in argument.
The soundness of these submissions depends on the effect of the legislation. It is necessary to begin by dealing with that topic, before referring to the constitutional and other issues.
Notice of the issues arising under the Constitution was given, pursuant to s 78B of the Judiciary Act 1903 (Cth), to Attorneys-General, none of whom intervened in the proceedings.
The Legislation
To understand the submissions, it is necessary to have regard to most of the provisions of Part 16. The relevant provisions are as follows:
74BA Interpretation
In this Part, unless the contrary intention appears—
Court means the Magistrates Court of South Australia;
fortification means any security measure that involves a structure or device forming part of, or attached to, premises that—
(a)is intended or designed to prevent or impede police access to the premises; or
(b)has, or could have, the effect of preventing or impeding police access to the premises and is excessive for the particular type of premises,
and fortified has a corresponding meaning;
fortification removal order means an order under section 74BB;
occupier, in relation to premises, means a person who has, or is entitled to, possession or control of the premises;
premises includes—
(a)land; and
(b)a building or structure on land; and
(c)a part of premises;
serious criminal offence means—
(a)an indictable offence; or
(b)an offence prescribed by regulation for the purposes of this definition.
74BBFortification removal order
(1) If, on the application of the Commissioner, the Court is satisfied that—
(a)premises named in the application are fortified; and
(b)—
(i)the fortifications have been created in contravention of the Development Act 1993; or
(ii)there are reasonable grounds to believe the premises are being, have been, or are likely to be, used—
(A)for or in connection with the commission of a serious criminal offence; or
(B)to conceal evidence of a serious criminal offence; or
(C)to keep the proceeds of a serious criminal offence,
the Court may issue a fortification removal order in respect of the premises.
(2) A fortification removal order is directed to the occupier of the premises or, if there is more than one occupier, any one or more of the occupiers of the premises, and requires the named occupier or occupiers to remove or modify the fortifications, as specified in the order.
(3) A fortification removal order may be issued on an ex parte application.
(4) The grounds of an application for a fortification removal order must be verified by affidavit.
(5) The Commissioner may identify any information provided to the Court for the purposes of the application as confidential if its disclosure might—
(a)prejudice the investigation of a contravention or possible contravention of the law; or
(b)enable the existence or identity of a confidential source of information to be ascertained; or
(c)endanger a person's life or physical safety,
and if the Court is satisfied (having regard to the principle of public interest immunity) that the information should be protected from disclosure, the Court must order that the information is not to be disclosed to any other person, whether or not a party to the proceedings.
(6) A person must not disclose information in respect of which an order has been made by the Court under subsection (5) unless—
(a)the disclosure is made by or with the consent of the Commissioner; or
(b)the disclosure is authorised or required by a court.
(7) A court must not authorise or require disclosure of information under subsection (6) without first having regard to the principle of public interest immunity.
(8) Proceedings in relation to an application under this section may, if the Court directs, be heard in a room closed to the public.
74BCContent of fortification removal order
(1) A fortification removal order must include—
(a)a statement to the effect that specified fortifications at the premises must be removed or modified, as directed by the Court, within a period of time fixed by the order (which may not be less than 14 days after service of the order); and
(b)subject to subsection (2)—a statement of the grounds on which the order has been issued; and
(c)an explanation of the right of objection under section 74BE; and
(d)an explanation of the Commissioner's power to enforce the order under section 74BI.
(2) A statement of the grounds on which a fortification removal order has been issued must not contain information in respect of which an order has been made by the Court under section 74BB(5).
(3) A copy of the affidavit verifying the grounds on which the application was made must be attached to the fortification removal order unless disclosure of information included in the affidavit would be in breach of an order of the Court under section 74BB(5).
(4) If disclosure of information included in the affidavit would be in breach of an order of the Court under section 77BB(5), an edited copy of the affidavit, from which the information that cannot be disclosed has been removed or erased, may be attached to the fortification removal order.
74BDService of fortification removal order
(1) A fortification removal order must be served on the occupier or occupiers named in the order.
(2) If the owner of the premises in relation to which a fortification removal order has been made is not named in the order, a copy of the order must be served on the owner.
(3) Subject to subsection (4), service of a fortification removal order must be effected personally or by registered post.
(4) If service cannot be promptly effected, it will be sufficient service for the Commissioner to affix a copy of the fortification removal order to the premises at a prominent place at or near to the entrance to the premises.
74BERight of objection
(1) Subject to subsection (2), a person on whom a fortification removal order has been served may, within 14 days of service of the order, lodge a notice of objection with the Court.
(2) A notice of objection cannot be lodged if a notice has previously been lodged in relation to the fortification removal order (unless proceedings in relation to the earlier notice have been discontinued).
(3) The grounds of the objection must be stated fully and in detail in the notice of objection.
(4) A copy of the notice of objection must be served by the objector on the Commissioner personally or by registered post at least 7 days before the day appointed for hearing of the notice.
74BFProcedure on hearing of notice of objection
(1) In any proceedings in relation to a notice of objection, the Court must, if convenient to the Court, be constituted of the Magistrate who issued the fortification removal order to which the notice of objection relates.
(2) The Court must, when determining a notice of objection, consider whether, in the light of the evidence presented by both the Commissioner and the objector, sufficient grounds exist to satisfy the Court as to the requirements of section 74BB(1).
(3) The Court may, on hearing a notice of objection, confirm, vary or withdraw the fortification removal order.
(4) If, on the hearing of a notice of objection, the fortification removal order is confirmed or varied, the period of time allowed for compliance with the order, as fixed by the order, is (unless the Court specifies otherwise) taken to commence on the day of the Court's determination.
74BGAppeal
(1) The Commissioner or an objector may appeal to the Supreme Court against a decision of the Court on a notice of objection.
(2) An appeal lies as of right on a question of law and with permission on a question of fact.
(3) An appeal must be commenced within the time, and in accordance with the procedure, prescribed by rules of the Supreme Court.
(4) If an appeal is commenced under this section, enforcement of the fortification removal order is stayed until proceedings in relation to the appeal are finalised.
(5) If an appeal under this section results in confirmation or variation of the fortification removal order, the period of time allowed for compliance with the order, as fixed by the order, is (unless the Supreme Court specifies otherwise) taken to commence on the day of the Supreme Court's decision.
74BHWithdrawal notice
(1) If the Commissioner determines that a fortification removal order will not be enforced, the Commissioner must lodge a withdrawal notice with the Court.
(2) The withdrawal notice must identify the premises, refer to the fortification removal order and state that the Commissioner has decided not to enforce the order.
(3) The withdrawal notice must be served on the occupier or occupiers named in the order and all persons on whom a copy of the fortification removal order was served.
(4) The withdrawal notice may be served in any way that section 74BD would enable a fortification removal order to be served.
74BIEnforcement
(1) If, in relation to a fortification removal order—
(a)a withdrawal notice is not lodged; and
(b)—
(i)a notice of objection is not lodged; or
(ii)the fortification removal order is confirmed or varied by the Court under section 74BF and an appeal in relation to the decision of the Court is not commenced; or
(iii)an appeal under section 74BG results in confirmation or variation of the fortification removal order; and
(c)the fortifications at the premises are not, within the period of time specified in the fortification removal order or any further time allowed by the Commissioner under subsection (2), removed or modified to the extent necessary to satisfy the Commissioner that there has been compliance with the order,
the Commissioner may cause the fortifications to be removed or modified to the extent required by the order.
(2) The Commissioner may extend the time allowed by the order if, before the time allowed elapses, application is made to the Commissioner for it to be extended.
(3) For the purposes of causing fortifications to be removed or modified, the Commissioner, or any police officer authorised by the Commissioner for the purposes of this section, may do one or more of the following:
(a)enter the premises without warrant;
(b)obtain expert or technical advice;
(c)make use of any person or equipment he or she considers necessary.
…
…
74BMApplication of Part
(1) If the provisions of this Part are inconsistent with any other Act or law, the provisions of this Part prevail.
…
The proceedings
The proceedings began with an undated “Application For An Order Of The Court”, made to the Magistrates Court in the name of the Commissioner of Police. The form used is the form prescribed by r 29.01 of the Magistrates Court Rules 1992 for an application invoking the statutory jurisdiction of the Court referred to in s 10 of the Magistrates Court Act 1991 (SA). That prescribed form states on its face that a copy of the application is to be served “on both the Applicant and the Respondent”. The form was completed to show Mr Osenkowski as the “person or property the subject of the order sought”. The order sought was stated to be “Eugene Osenkowski or any other occupier of Lot 2 Canham Road, Cromer, South Australia permanently remove the following fortifications from the premises …”. Brief details of the fortifications were given.
Neither the application nor the supporting affidavits were served on Mr Osenkowski. There is no record of the Chief Magistrate having given leave for the Commissioner to proceed without serving the application.
On 9 December 2005 the Chief Magistrate considered the Application, in the absence of Mr Osenkowski, and made orders which were drawn up and sealed with the Court Seal. The orders are as follows:
1.This application coming on for hearing before me on Friday the 9th of December 2005. (sic)
2.Pursuant to s.74BB(5) of the Summary Offences Act 1953 I am satisfied (having regard to the principle of public interest immunity) that the information provided to the Court for the purposes of this application might, if disclosed, prejudice the investigation of a contravention or possible contravention of the law and might, if disclosed, endanger a persons life or physical safety and the application, affidavit, exhibits to the affidavit and sworn evidence provided in support of the application having been identified by the applicant as confidential within the meaning of s.74BB(5) of the Summary Offences Act 1953 I ORDER that
(a) the affidavit and exhibits lodged in support of the application
and
(b) the sworn evidence taken in chambers on the 9th of December 2005
not be disclosed to any other person (whether or not a party to the proceedings)
AND I therefore Order, pursuant to s.74BC(3) and s.74BC(4) of the Summary Offences Act 1953 that none of the documents referred to above be attached to this order whether in their original form or in any edited form.
3.I am satisfied that those premised which are named in the application – being a dwelling house erected at lot 62, Canham Road, Cromer in the State of South Australia being land comprised and described in Certificate of Title Register Book Volume 5796 Folio 603 – are fortified, within the meaning of s.74BA of the Summary Offences Act 1953 and s.74BB(1)(a) of the Summary Offences Act 1953.
4.I am satisfied, in accordance with s.74BB(1)(b)(ii) of the Summary Offences Act, 1953 that there are reasonable grounds to believe that the premises named in the application – being the dwelling house erected at lot 62, Canham Road, Cromer in the State of South Australia – are being, have been, or are likely to be, used:-
(A) for or in connection with the commission of a serious offence; or
(B) to conceal evidence of a serious criminal offence; or
(C) to keep the proceeds of a serious criminal offence
AND I therefore issue a fortification removal order in respect of the premises
AND I direct that the fortification removal order be directed to the occupier/s of the premises namely Eugene Osenkowski and Wally Stacharski
AND I direct, pursuant to s.74BB(2) of the Summary Offences Act 1953, the occupier/s of the premises to remove the fortifications, namely:-
1)all steel mesh attached to the exterior of the walls and windows of the dwelling
2)all external steel doors of the dwelling
3)all locks and security devices which secure the internal manhole cover within the dwelling
4)all razor wire and other security devices within the roof of the dwelling.
FURTHERpursuant to s.74BC of the Summary Offences Act 1953 I direct that the fortifications referred to above be removed within 15 days of this order being served upon either of the occupiers Eugene Osenkowski or Wally Stacharski.
…
FURTHERAs I am of the opinion that Wally Stacharski is the registered owner of the premises I direct that a copy of this order be served on him.
FURTHERI direct that service of this order comply with s.74BD of the Summary Offences Act 1953.
ANDI direct that the Registrar of the Magistrates Court affix the seal of the Court to this order.
I have omitted those parts of the order that provide the explanations required by s 74BC(1)(c) and (d).
The order was served on Mr Osenkowski and on Mr Stacharski. On 23 December 2005 they lodged a Notice of Objection pursuant to s 74BE. The Notice contains grounds of objection which include assertions that the premises in question were not fortified, that the fortifications were not created in contravention of the Development Act 1993 (SA), and an assertion that there are no reasonable grounds to believe that the premises are being, have been or are likely to be used for any of the purposes referred to in s 74BB(1)(b)(ii). Some explanatory particulars are given of the assertion that the premises are not fortified.
In response to a request by letter of 23 January 2006 by Mr Osenkowski’s solicitors, for a copy of the Application and of the information provided to the Court, it was recorded that a copy of the Application had been given already, but the Commissioner declined to provide the other information on the grounds that it was protected from disclosure by an order of the Court. Providing a copy of the Application might have been an oversight. Paragraph 2 of the order of 9 December refers to the application as having been identified as confidential, but does not in fact order that it not be disclosed. In any event, nothing turns on that.
On 8 March 2006 the parties came before the Chief Magistrate, in anticipation of a hearing (on a later date) of the Notice of Objection pursuant to s 74BF. The Chief Magistrate noted that counsel for the Commissioner accepted that the Commissioner would have to present his case first on the hearing of the Notice of Objection, and that the Commissioner accepted that he would have to discharge the onus cast on him by s 74BF(2). To that end the Chief Magistrate varied para 2 of the order of 9 December to provide that the material referred to was not to be disclosed to any other person “unless the disclosure is made by or with the consent of the Commissioner”.
On 14 March 2006 Mr Osenkowski instituted an appeal to this Court against the order made on 9 December 2005, as varied on 8 March 2006. The appeal was instituted pursuant to s 40 of the Magistrates Court Act, which provides for a right of appeal to this Court by “A party to a civil action”. It is unclear whether the jurisdiction conferred by Part 16 of the Act is exercised in the Civil Division or in the Criminal Division of the Court. No rule has been made under s 10(2) of the Magistrates Court Act assigning the statutory jurisdiction to the Civil Division or to the Criminal Division. It appears to me to be unnecessary to decide the point, because there is a challenge to the competence of the appeal whether the appeal is brought under s 40 of the Magistrates Court Act or under s 42 of that Act, providing for appeals in “a criminal action”.
On 15 March 2006 Mr Osenkowski withdrew his Notice of Objection. We were told that the reason was that his advisers considered that persisting with the Notice of Objection might be inconsistent with the submission that the order of 9 December 2005 was invalid. No order was made or has been made, consequent upon that withdrawal, in exercise of the power conferred by s 74BF(3). I understand that counsel for Mr Osenkowski submitted before the Chief Magistrate that, the Notice of Objection having been withdrawn, there was no power to make any such order.
Challenge to the validity of the Legislation
The challenge to the validity of the Legislation rests on submissions as to its meaning. I will summarise the effect of those submissions, put by Mr Abbott QC on behalf of Mr Osenkowski.
Mr Abbott submits that by s 74BB(3) the Commissioner is entitled to require the Court to proceed without notice to any person. That is, that the Commissioner is not required to obtain leave from the Court to proceed in that manner. He makes the point, as the order of 9 December demonstrates, that an order may be made under s 74BB(1) on the basis of material not disclosed or to be disclosed to the person to whom the order is directed, and without any opportunity for that person to be heard.
Mr Abbott submits that under s 74BD(1) not all occupiers of the premises in question need be served with the order. As only a person on whom the order is served may lodge a Notice of Objection, an occupier who has not been served has no entitlement to lodge a Notice of Objection.
He submits that s 74BE(3) imposes an impossible burden on an objector such as Mr Osenkowski, because it requires him to state the grounds of objection “fully and in detail” even though he has been denied access to the material on the basis of which the order was made.
He appeared to submit (but might not have pursued the submission) that under s 74BF the Magistrate (if he was the Magistrate who issued the fortification removal order), could take account of information put before him when that order was made, even though an order had been made that it was not to be disclosed. He also appeared to deny that it was incumbent on the Commissioner, on the hearing of a Notice of Objection under s 74BF, to present evidence sufficient to support a decision confirming or varying the fortification removal order.
Based on that submission, he submitted that on an appeal under s 74BG by an objector, and also in proceedings by way of judicial review, this Court might be required to decide the proceedings without having access to the material on the basis of which the order was confirmed or varied, even though counsel for the Commissioner would have access to that material. He submitted that this would make an appeal under s 74BG and proceedings by way of judicial review a pointless farce, because this Court would have before it nothing but the original fortification removal order and, he hypothesised, an order confirming or varying that order.
In the course of argument I made the point to Mr Abbott that the prohibition in s 74BB(5) might not apply to this Court, because the reference to “any other person” might not apply to this Court hearing an appeal or proceedings by way of judicial review. I also drew his attention to s 74BB(6) which appears to empower any court to authorise or require disclosure of information in respect of which a non-disclosure order has been made. Mr Abbott then made an application for disclosure of the material before the Chief Magistrate when he made the order on 9 December. That application was opposed by Mr Kourakis QC SG, appearing for the Commissioner. The Court did not rule on the application at the time.
In brief, Mr Abbott submits that on his approach to the operation of the legislation the proceedings in the Magistrates Court can be surrounded with such secrecy, and the person affected by a fortification removal order can be put at such a disadvantage, and the ability of this Court (on appeal or by way of judicial review) to correct any error by the Magistrates Court is so limited, that if this Court is called upon to exercise its powers under s 74BG, or on an appeal under s 40 or s 42 of the Magistrates Court Act, or in proceedings by way of judicial review, the Court will be required to participate in a process which is incompatible with what he called the Court’s “institutional integrity as a court in which federal jurisdiction can be vested under chapter III of the Constitution”.
I do not accept Mr Abbott’s submissions as to the construction of the relevant provisions. I will state my views on the construction issue, before dealing with the challenge to the validity of the legislation. I do so because that challenge must be determined on the basis of a proper understanding of the effect of the relevant provisions.
There is no reason to read s 74BB(3) as entitling the Commissioner to require the Magistrates Court to proceed without notice to the person affected by an order. It would be unusual to enable an applicant to the Court to require the Court to proceed without notice to the party intended to be affected by the proceedings. One would expect Parliament to make clear its intention, if that was intended. Section 74BB(3) should be read as conferring on the Magistrates Court a power to make a fortification removal order without notice to the person affected, if satisfied in all the circumstances that there is good reason to do so. There is nothing out of the ordinary in the conferring of such a power, bearing in mind the limited effect of such an order. Such a power is not inconsistent with accepted judicial procedures and standards. The fact that the Application provided that it would be served is of no significance. The forms used cannot prevail over the power conferred by s 74BB(3).
The power conferred by s 74BB(5) is an unusual one. The exercise of the power means that the court acts on material not to be disclosed to the person affected by the order. I would expect the Magistrate exercising the power to take that into account, when deciding whether a non-disclosure order is appropriate. The Magistrate will also take into account the limited effect of an order under s 74BB. An order made under s 74BB(1) can take effect only if a Notice of Objection is not lodged or if the fortification removal order has been confirmed or varied under s 74BF(3), and that result has not been disturbed on appeal: s 74BI. The order is like an order to show cause. It has some similarities to an enforcement order under s 84(2) of the Development Act 1993 (SA).
I agree that only a person served with a fortification removal order can lodge a Notice of Objection, and can later appeal under s 74BG. These provisions create a risk that an occupier of the relevant premises will not be served, and will lose the right to object. But that matter goes to the fairness of the legislative scheme, and does not affect the manner in which the Magistrates Court or this Court discharge their functions under the Act.
I do not agree that an objector will not be able to comply with the requirements of s 74BE(3) in a case like this, when the information on which the fortification removal order was made is the subject of a non-disclosure order. As it happens, the Notice of Objection lodged by Mr Osenkowski is adequate. An objector in a case like this might be at a disadvantage, but the objector should be able to give grounds for denying that the premises are fortified, for denying that the fortifications (if any) have been created in contravention of the Development Act 1993, and for denying that there are reasonable grounds to believe the matters referred to in s 74BB(1)(b)(ii). As to the latter, there is not much that could be expected from an objector, other than a general denial and, perhaps, a statement of matters relevant to any particular offences of which the objector is aware. I would expect a court to consider the adequacy of a Notice of Objection in the light of the information available to the objector at the time of the lodging of the Notice.
It is clear, in my opinion, that on the hearing of the Notice of Objection under s 74BF the Commissioner must present evidence which, in light of any evidence presented by the objector, is sufficient to satisfy the court as to the requirements of s 74BB(1). That means that it is incumbent on the Commissioner to establish his case afresh, and to do so on the basis of evidence presented in the presence of the objector, the objector having the right to test that evidence, and to present answering evidence. Ordinary principles of fairness would require the Magistrate (if the Magistrate issued the fortification removal order) to have no regard to material, put before the Magistrate when making an order, that is the subject of a non-disclosure order. In short, a hearing under s 74BF will be a complete rehearing, and the order will be confirmed or varied only if, at that rehearing, the Commissioner establishes that that should be done. There is nothing unfair or out of the ordinary about this procedure.
If the Magistrates Court then confirms or varies the fortification removal order, it will do so on the basis of the material presented to it. It is the order confirmed or varied that will be able to be enforced. If the Magistrate orders that the order be withdrawn, that will be the end of any order made under s 74BB(1). One of Mr Abbott’s submissions was that it is a defect in the scheme that neither s 74BF(3) nor s 74BG give the relevant court a power to quash the fortification removal order. There is nothing in this point.
There is one further aspect of s 74BF that calls for comment. The requirement that the Court be constituted of the Magistrate who issued the fortification removal order “… if convenient to the Court …”, might seem an inconvenient provision, in light of my conclusion that the Magistrate must put out of the Magistrate’s mind the material that was before the Magistrate when making the fortification removal order, or at least material the subject of a non-disclosure order. In light of that, one might legitimately wonder why Parliament has required or contemplated that the same Magistrate will deal with both procedures. The answer probably is that Parliament contemplated that in the usual situation there will not be a non-disclosure order, and the material that was before the Magistrate who issued the fortification removal order will be available to the person who has lodged a Notice of Objection. In that situation it may make sense for the same Magistrate to deal with both procedures.
In a case like the present one, were the Chief Magistrate to preside over the hearing of the Notice of Objection, one could understand the objector being legitimately concerned about the knowledge that the Chief Magistrate might have of the matter, knowledge which is and will remain unknown to the objector, and knowledge which can fairly be assumed to be adverse to the objector’s interests. A similar issue arose in relation to telecommunication interception warrants in Grollo v Palmer (1995) 184 CLR 348. There the majority (Brennan CJ, Deane, Dawson and Toohey JJ) described this issue as “troubling”. They anticipated that the concern would be met by the judge who issued a warrant (based on information not known to the person whose interests were affected) taking steps to ensure that the judge did not sit on any case to which the warrant relates: at 366, see also McHugh J at 380-381 and Gummow J at 394-398. While s 74BF(1) might be read as providing that in a case like the present no objection on the ground of apprehension of bias might be taken to the Magistrate sitting, in my view it should not be so read. The provision should be read as applying only when there are no non-disclosure orders, or none that are relevant. In a case like the present there is no difficulty in reading the provision as contemplating a conclusion that it is not “convenient” for the court to be constituted by the Magistrate who issued the fortification removal order, for the very reason that that order was based on information that is not to be disclosed to the objector, if that is the case. In that way the Magistrates Court can avoid the “troubling” situation of a Magistrate hearing a Notice of Objection when the Magistrate has considered, and made orders on the basis of, material adverse to the objector’s interests which is not to be disclosed to the objector.
It follows that on an appeal to this Court under s 74BG, this Court will have before it all of the material on the basis of which the Magistrates Court confirmed or varied or ordered the withdrawal of the fortification removal order. The appeal will be conducted like any other appeal. There is no basis for a complaint about the appeal process. The material that was before the Magistrate when the fortification removal order was originally made will be of no relevance, and there will be no need for the Court to refer to it. In the unlikely event of some need arising, the Court would have the power to order the disclosure of the information in exercise of the power conferred by s 74BB(6), or perhaps on the basis that the non-disclosure order does not apply to the Court in any event.
I deal below with the question of whether an appeal to this Court, against the fortification removal order, lies under s 40 or s 42 of the Magistrates Court Act. I conclude that the appeal does not lie. If I am wrong in that, and such an appeal does lie, there might be a non-disclosure order that would prevent the Court from discharging its responsibility on appeal in a manner consistent with accepted concepts of the judicial process. For the reasons just given, the Court would have power to require disclosure of the information before the Magistrates Court when the fortification removal order was made. I recognise that the exercise of that power might not solve the problem, having regard to the provisions of s 74BB(7). That, however, is a matter that can be dealt with if and when it arises.
For similar reasons, if, as has happened here, the validity of a fortification removal order is challenged in proceedings by way of judicial review, this Court has the power in the course of those proceedings to require the disclosure to it of the information before the Magistrates Court when the fortification removal order was made. I note that no application for access to that material was made to this Court until I raised the point with Mr Abbott when he was well into his submissions at the hearing.
I summarise the position as follows.
Section 74BB empowers (but does not require) the Magistrates Court to make a fortification removal order without notice to the person or persons affected, and without permitting them to have access to the information on the basis of which the order was made. That is an unusual provision and a significant departure from usual judicial procedures and usual standards of fairness. However, this provision does not stand alone. Other provisions of Part 16 provide for an ample right to challenge the making of the fortification removal order.
The only circumstances in which such an order can be enforced, without further consideration by the Magistrates Court, will be when a Notice of Objection is not lodged. In such a case, the powers of the Magistrates Court under s 74BF and of this Court on appeal will not have been invoked, and no question will arise of either court being required to proceed in a manner that is inconsistent with the accepted understanding of the integrity, independence and impartiality required of a court.
If a Notice of Objection is lodged, the objector will be entitled to a full rehearing of the Commissioner’s application before the Magistrates Court, in proceedings that involve no significant departure from ordinary standards. The right of appeal to this Court under s 74BG will be available, and that appeal will involve no departure from accepted standards. The fortification removal order will be enforced only if it is confirmed or varied as a result of one or both of these processes, and is not ordered to be withdrawn. The original fortification removal order will no longer be of any particular significance, and the circumstances in which it was made will not be of any particular relevance. It will be the order as confirmed or varied that will be enforced, and that order will have been made as a result of procedures that are fair.
If proceedings are brought challenging the fortification removal order by way of judicial review, such proceedings can be dealt with in the usual way. This Court will have the power to require the disclosure to it and to the plaintiff of the information the subject of the non-disclosure order. It is conceivable that in such proceedings the restrictions imposed by s 74BB(7) will give rise to some difficulty in ensuring that the proceedings are disposed of fairly and satisfactorily, but unless and until that matter arises it is unwise to express a view on the impact of that problem. It must not be overlooked that it has long been accepted that it is open to Parliament to exclude altogether the judicial review of proceedings in inferior courts and tribunals. It is not to be assumed that a restriction on such proceedings will be invalid, particularly when the relevant legislation provides an alternative means of challenging the order in question.
Having regard to my conclusions as to the proper interpretation of the legislative provisions, there is no need to embark on a detailed consideration of the principle established by the High Court in Kable. It is sufficient to refer to some general statements made by members of the High Court.
In Fardon v Attorney-General (Qld) [2004] HCA 46; (2004) 210 ALR 50 the High Court considered yet again the application of the Kable principle. Gleeson CJ said at [15]:
The decision in Kable established the principle that, since the Constitution established an integrated Australian court system, and contemplates the exercise of federal jurisdiction by state Supreme Courts, state legislation which purports to confer upon such a court a function which substantially impairs its institutional integrity, and which is therefore incompatible with its role as a repository of federal jurisdiction, is invalid.
This statement is not, of course, to be treated as if it were a statutory provision. It is a general statement of the effect of the principle. Kable itself, and decisions since Kable, amply illustrate the need to apply this general statement with a careful eye to the relevant legislative provisions and the circumstances of the case. The principle was stated in similar terms in Fardon by McHugh J at [35], by Gummow J at [100]-[105], by Kirby J (dissenting) at [141]-[142], by Hayne J at [198] and by Callinan and Heydon JJ at [213].
I refer also to the recent observation by Gleeson CJ in Forge & Ors v Australian Securities and Investments Commission & Ors [2006] HCA 44; (2006) 229 ALR at 223 where he said:
For a body to answer the description of a court it must satisfy minimum requirements of independence and impartiality.
Similarly, Gummow, Hayne and Crennan JJ said at [63]:
That is, if the institutional integrity of a court is distorted, it is because the body no longer exhibits in some relevant respect those defining characteristics which mark a court apart from other decision making bodies.
The submissions by Mr Abbott invoking these principles were to the effect that the institutional integrity of this Court is impaired by the legislation because the legislation confers on the court powers (in its appellate function) that require the Court to engage in a process that is a kind of charade, intended or likely to result in a decision upholding a fortification removal order, and conferring on it a kind of legitimacy, as a result of a process that departs markedly from the accepted understanding of the judicial process. His argument is that the ability of the Court to review the making of the order on appeal is so restricted that the Court is required to act in a manner that is inconsistent with traditional or accepted concepts of the judicial process. Likewise, he submits that if the court’s jurisdiction to proceed by way of judicial review is invoked, the same legislative restrictions mean that the court cannot exercise its jurisdiction in a manner consistent with accepted judicial standards.
My conclusion is that the legislative provisions do not in any significant way impair the ability of the court to discharge its functions in accordance with accepted standards of impartiality and fairness. I do not suggest that that is the appropriate test. My point is that unless the legislation has an effect of this kind, the occasion for a close consideration of the principle in Kable does not arise.
In short, there is nothing about the appeal process that attracts the principle in Kable. Nor is the court’s ability to proceed by way of judicial review so impaired as to attract that principle. As to the latter point it remains important to bear in mind that it is within the competence of Parliament to provide that decisions of particular courts and tribunals shall not be subjected to judicial review. Accordingly, were it necessary to consider this aspect of the matter more closely, it would be necessary to allow for that fact when considering whether restraints upon the court’s ability to engage in judicial review mean that the restraints are beyond power.
As I understand the submissions, there is not a separate challenge to the validity of s 74BB. If the making of a fortification removal order is an administrative act (see below), no issue under Chapter III of the Constitution will arise: see Pasini v United Mexican States [2002] HCA 3; (2002) 209 CLR 246 at 253, Gleeson CJ, Gaudron, McHugh and Gummow JJ. If the making of an order is a judicial act, I am not persuaded that the power is incompatible with the status and independence of magistrates as judicial officers, nor with the exercise of their judicial power: see Grollo. I assume without deciding that the Kable principle applies to the Magistrates Court: see R v Granger [2004] SASC 156; (2004) 88 SASR 453 at [26] Doyle CJ.
The appeal
The appeal, as I noted earlier, is instituted under s 40 of the Magistrates Court Act which provides by s 40(1):
40(1) A party to a civil action (except a minor civil action) may, in accordance with the rules of the Supreme Court, appeal against any judgment given in the action.
This is qualified by s 40(4) which provides:
40(4) If jurisdiction to try the civil action is created by statute and the terms of the statute are such as to indicate that Parliament did not intend that there should be an appeal from a decision made in the exercise of that jurisdiction, that intention prevails.
A “civil action” is defined by s 3(1) to mean “an action or proceeding brought in a civil division of the Court”. By s 10(2) of the Magistrates Court Act:
10(2) The rules may assign a particular statutory jurisdiction (other than a statutory jurisdiction specifically assigned by or under another Act to a particular Division of the Court) either to the Civil (General Claims) Division, or to the Criminal Division, of the Court.
There is no rule assigning the jurisdiction under Part 16 of the Act to the Civil Division or to the Criminal Division.
The right of appeal in a criminal action is conferred by s 42(1), which provides:
42(1) A party to a criminal action may, subject to this section and in accordance with the rules of the appellate court, appeal against any judgment given in the action (including a judgment dismissing a charge of a summary or minor indictable offence but not any judgment arising from a preliminary examination).
However, by s 42(1a) an appeal does not lie against “an interlocutory judgment” other than in specified circumstances, none of which appear to apply in the present case.
The appeal is against the fortification removal order made on 9 December 2005 and against the non-disclosure order made that day under s 74BB(5). The appeal is also against the orders (in para 2) made under s 74BC(3) and under s 74BC(4) of the Act. Those orders appear to me to be ineffective because those statutory provisions do not provide for the making of an order by the Court. They merely regulate the material that must accompany a fortification removal order. But nothing turns on that point in these proceedings. The Notice of Appeal also appeals against the variation to the order made on 8 March 2006. It is not easy to see what complaint can be made about that order, but once again nothing turns on that.
To the extent that the appeal is against the orders made on 9 December 2005, it was instituted well outside the time within which such an appeal is to be instituted. The relevant time limit was 14 days (see r 96B and r 97.04 of the Supreme Court Rules). If the relevant orders are interlocutory judgments or orders, leave to appeal is required under r 96B (and has not been sought or obtained). It is not necessary to deal with those issues now.
It is unnecessary to deal with those issues because I am satisfied that the provisions of Part 16 indicate, in the terms of s 40(4) of the Magistrates Court Act, that Parliament did not intend that there should be an appeal under s 40(1) from a decision made under s 74BB.
Parliament has provided by s 74BE for a right of objection to a fortification removal order, which right gives rise to a full rehearing of the question of whether such an order is appropriate. The limited effect that a fortification removal order can have, coupled with the provision for review by way of a notice of objection, is a clear indication that Parliament did not intend that an order made under s 74BB should also be subject to appeal under s 40 of the Magistrates Court Act. It would make no practical sense for this Court to entertain an appeal from an order made under s 74BB when there is, under the provisions of Part 16, an alternative and more ample remedy available. The conclusion that Part 16 operates as a self-contained code is reinforced by two other considerations. First, the fact that s 74BG provides for an appeal to this Court against a decision on a Notice of Objection. Parliament could not have intended that a decision on a Notice of Objection would also be subject to appeal under s 40 of the Magistrates Court Act. That is an indication that rights of appeal are governed by the provisions of Part 16, and not by the general appeal provisions in the Magistrates Court Act. And the fact that s 74BM provides for the provisions of Division 16 to prevail over inconsistent provisions in any other act or law again suggests that this Division is to be treated as a self-contained code.
For those reasons I am satisfied that a right of appeal is not available under s 40 of the Magistrates Court Act.
Section 42 of that Act does not contain a provision in terms of s 40(4). Nevertheless, I am satisfied that there is a sufficiently clear indication by Parliament of its intention that Division 16 operate as a self-contained code for me to reach the same conclusion in relation to s 42. If the appeal lies under s 42, it appears to be out of time (see r 97.04 of the Supreme Court Rules). If the orders are interlocutory judgments, it may be that no appeal lies having regard to s 42(1a) of the Magistrates Court Act.
As I am satisfied that the appeal is incompetent, it is not necessary to deal with the question of whether the decisions in question are interlocutory judgments, and whether a grant of leave to appeal is required, or whether an appeal is excluded by s 42(1a): see Beck [2001] SASC 81; (2001-2002) 118 A Crim R 438.
In the circumstances, it is neither necessary nor appropriate to embark on a consideration of the merits of the appeal. For that reason it is not necessary to consider Mr Abbott’s last minute application under s 74BB(6). As to that, I add that I made an order referring the hearing of the appeal to the Full Court on the basis that all material that might be required for the hearing of the appeal was already before the Court.
I merely record that were the merits of the appeal to be considered, it would be necessary to consider the significance of the fact that there is no record of the Chief Magistrate having decided that it was appropriate to make the fortification removal order without notice to Mr Osenkowski. It would also be necessary to consider the significance of the fact that the Chief Magistrate made the sweeping non-disclosure order that is found in para 2 of the orders of 9 December 2005. I find it difficult to understand why at least the evidence that established that the premises were fortified should not have been disclosed. However, it is not necessary to take that matter any further.
In my opinion the appeal should be struck out as incompetent.
The judicial review proceedings
Mr Abbott submits that the fortification removal order is void. It is void, he submits, because it does not disclose “… a statement of the grounds on which the order has been issued …”: s 74BC(1)(b). He submits that the order does not state or disclose on its face the matters, referred to in s 74BB(1)(b)(ii) as to which the Chief Magistrate was satisfied there were reasonable grounds for the required belief. Paragraph 4 of the order refers to each of those three matters disjunctively or as alternatives. The result is, Mr Abbott submits, that the reader of the order is unable to determine on which of those matters the Chief Magistrate reached the required level of satisfaction.
This submission appeared to rest mainly on the requirement in s 74BC(1)(b). In the alternative Mr Abbott submits that there is a common law requirement that such an order disclose on its face those matters or findings or decisions that are essential for a valid exercise of the power to issue the order. He submits that the order in question is subject to those common law requirements, and that in this respect the order is to be treated like a search warrant.
There is substantial authority for the view that a warrant issued by a subordinate authority such as a police officer or justice of the peace or magistrate must record or display on its face the circumstances that support the existence of the authority or power to issue the warrant or, as is sometimes said, that the warrant must disclose on its face the existence of jurisdiction to issue the warrant: see Ousley v The Queen (1997) 192 CLR 69 at 83 Toohey J, at 88-89 Gaudron J, at 107-108 McHugh J, at 129-130 Gummow J and at 149-150 Kirby J.
The power or authority to make a fortification removal order is conferred on the Magistrates Court: s 74BA and s 74BB(1). The Magistrates Court is a court of record: s 5 of the Magistrates Court Act. For the purposes of the principles as to jurisdictional error canvassed by the High Court in Craig v South Australia (1994-1995) 184 CLR 163 the Magistrates Court is an inferior court.
The vesting of the power in the Magistrates Court (rather than in a magistrate as an individual with necessary and appropriate qualifications to exercise the power), the fact that an order is made on application to the court exercising a statutory jurisdiction vested in the court, and the provisions for a hearing by the court following on the lodging of the Notice of Objection, are capable of supporting a conclusion that the making of a fortification removal order is the making of a judicial order, rather than the discharge of an administrative function. If the order is a judicial order, the common law principles identified in Ousley may not be applicable.
In Ousley the power to issue the warrant in question (an authority to use a listening device) was vested in the Supreme Court of Victoria. Nevertheless, all members of the High Court treated the issue of a warrant as an administrative act, subject to the common law principles referred to: Toohey J at 80, Gaudron J at 87, McHugh J at 100, Gummow J at 124, Kirby J at 145.
As well, in the present case the fortification removal order might be characterised as an administrative act that precedes judicial proceedings in the Magistrates Court that begin only if and when a Notice of Objection is lodged under s 74BE.
It is not necessary in these proceedings to decide whether the making of a fortification removal order is to be characterised as a judicial act or a step in judicial proceedings or as an administrative act. I say that because the Act requires that there be a statement of the grounds on which the order was issued: s 74BC(1)(b). Accordingly, it matters not whether or not the common law principles referred to would have required in any event that the order disclose on its face the grounds on which it had been issued. The Act so requires. And, I am satisfied, the Act so requires in terms that make it plain that failure to comply with the statutory requirement would invalidate the order in question. I add, so it is not overlooked, that it may be possible to disregard a deficiency in the statement of grounds as one that is sufficiently minor not to affect the validity of the order.
I therefore accept the submission by Mr Abbott that the order is not valid if it fails to state the grounds on which it was issued.
I agree that para 4 of the fortification removal order is awkwardly expressed. Mr Abbott submits that it means that the Chief Magistrate was satisfied that there were reasonable grounds to believe one or other of the three matters referred to in subparas (A), (B) and (C) of s 74BB(1)(b)(ii), but that the terms of the order make it impossible to determine on which of those matters the Chief Magistrate was satisfied that there were reasonable grounds for the relevant belief.
I do not accept this submission. Acceptance of this submission means, in effect, that the Chief Magistrate has been satisfied that there were reasonable grounds to form one of the three relevant beliefs, but has declined to disclose which it is, merely indicating that it is one of the three available grounds. That would be a perverse and inappropriate approach.
I have no difficulty in treating the conjunction “or” in para 4 of the order as meaning “and”. It is not uncommon for “or” to be used in this sense. It is not impossible, and by no means unlikely, that in a particular case a Magistrate will be satisfied that there are reasonable grounds to form each of the relevant beliefs. Para 4 should be read as meaning that the Chief Magistrate was satisfied, on the material before him, that there were reasonable grounds for each of the three beliefs referred to. It follows that the suggested ground of invalidity is not made out.
Mr Abbott further complained that it was not sufficient for the order to recite the statutory provision in s 74BB(1)(b)(ii). He submits that the statement of grounds contemplated by s 74BC(1)(b) requires more than that, although in his submissions he did not descend to any great detail. The provisions of s 74BC(2) lends some support to his submission, because they appear to contemplate that the statement of grounds will include more than is provided in the present case, because the provision contemplates that but for the provision it makes further information will be or might be provided. On the other hand, the provisions of s 74BC(3) suggests that the further material required (if any) would not include the recital of the facts upon which the Magistrate reached the required state of satisfaction, because in the ordinary case those facts will be found in the affidavit that is provided under s 74BC(3). The resolution of this issue can be left for another day. The Chief Magistrate has made a wide ranging non-disclosure order. There can be no doubt about his power to make such an order. In light of that order there is no difficulty in concluding that the statement of grounds on which the fortification removal order was made is as restricted as it is because of the obligation imposed by s 74BC(2) that material the subject of a non-disclosure order not be included in the statement of grounds. In light of that, it cannot be said that the statement of grounds in the fortification removal order does not satisfy the requirement in s 74BC(1)(b).
Mr Abbott further submits that the fortification removal order is invalid because, in para 4(A), it refers to “the commission of a serious offence”, and not to the commission of a “serious criminal offence” the language of s 74BB(1)(b)(ii)(A). In my submission this point lacks substance. The error is a minor one, and there is no reason why in this respect the order should not be treated as referring to a “serious criminal offence”.
Mr Abbott further submits that the fortification removal order is invalid, or discloses an error of law on its face, because of the failure to provide reasons for the making of the order, and reasons for the making of the non-disclosure order under s 74BB(5) of the Act. But there is no requirement under the Act or at common law for an order of this kind to contain a statement of reasons. To the contrary, it is common for such an order, or for the record of an inferior court, not to disclose matters, including reasons, that might if disclosed reveal an error of law, for which a remedy might lie if error were revealed. The whole point of much of the law canvassed in Craig is that the court record, for the purposes of the principles applying to errors of law on the face of the record, is a limited record, and usually will not embody the reasons of the court. Even when the reasons are available, usually they will not be treated as part of the record, and so they may not be referred to for the purposes of demonstrating error of law on the face of the record.
The short answer to this submission is that there is no statutory or common law requirement for the fortification removal order to contain or be accompanied by a statement of the reasons for the making of the order. That is the position whether the order is to be treated as a judicial order or as an administrative order.
It follows that the attacks on the validity of the fortification removal order fail. No basis for invalidating the order has been identified.
That leaves the application that Mr Abbott made, relatively late in the course of his submissions, for an order under s 74BB(6) for the disclosure of the information before the Chief Magistrate when he made the fortification removal order. Before the Court could make any such order it would be necessary for the Court to inspect the relevant material. I have no doubt that the Court can do so, with a view to determining whether or not it should make an order for disclosure. This is something that is sometimes done when a claim is made that material should not be disclosed to a court in the public interest, relying on the principle of public interest immunity. However, in my opinion the Court should decline to inspect the documents, and should decline to make the order sought by Mr Abbott.
If the order is to be treated as an order made by the Magistrates Court, that is as a judicial order, the disclosure of the information upon which the Chief Magistrate acted could assist the plaintiff only if it led to a conclusion that the Chief Magistrate lacked the jurisdiction to make the order that he made. I say this because the material cannot supplement the court record, which relevantly comprises the application to the Chief Magistrate and the order that he made. Having regard to the principles stated in Craig, the information would support an attack on jurisdiction only if it disclosed a failure to observe an essential condition of the existence of jurisdiction, or a misconception of the nature of the function that the Chief Magistrate was performing: Craig at 177-178 and at 179-180. If the order is to be treated as an administrative act, like the issue of a warrant, the material before the Chief Magistrate could be examined to determine the sufficiency of the information before the Magistrate to ground the making of the order, that is, to determine whether or not there is material on which the power to make the order was enlivened: Grollo at 359.
Without considering the material in question, there is no way of knowing whether or not it would lend any assistance to Mr Abbott’s submissions. But, as I have already observed, these proceedings were listed for hearing on the basis that the Court had before it all of the material required by the plaintiff to support his challenge to the fortification removal order. Moreover, the plaintiff lodged a Notice of Objection, which would in due course have led to the disclosure to the plaintiff of the material upon which the Commissioner relied to support the order. The plaintiff chose not to persist with that procedure. These considerations support the conclusion that the plaintiff has chosen to fight this case on the issues of law already dealt with by me, rather than on the facts. Nor can one say, at this stage, that it would be appropriate for the Court to order disclosure of the material that was before the Chief Magistrate. It is no criticism of Mr Abbott that, in this respect, his application is speculative. Like the Court, he does not know what was before the Chief Magistrate. But it remains the case that, having inspected the information, this Court might yet conclude that it should not be disclosed. For all those reasons, I consider that the Court should decline to entertain the application made by Mr Abbott for disclosure of material before the Chief Magistrate.
It is somewhat troubling that this might leave the plaintiff without any ability to challenge the order that has been made. To some extent that is a result of the decision not to pursue the Notice of Objection. It may be that the Notice of Objection can be revived. The record of the Magistrates Court indicates that a “Notice of Discontinuance” was filed on 14 March 2006. It appears that no order has been made on that Notice. I understand that the fortification removal order has not been confirmed or varied: see s 74BF(4). There has been no hearing of the Notice of Objection. The question of whether the Magistrates Court has power to allow the Notice of Discontinuance to be withdrawn, and could properly exercise that power, has not been canvassed before the Court.
Conclusion
For these reasons in my opinion the appeal to this Court should be struck out as incompetent. The proceedings by way of judicial review should be dismissed.
NYLAND J: I agree with the reasons of the Chief Justice and the orders he proposes.
ANDERSON J: I agree with the reasons of Doyle CJ. I am also concerned that the plaintiff is unable to challenge the order. It may be that the notice of objection can be revived so that the plaintiff can argue at least some of the matters raised before this court.
I agree with the orders proposed by the Chief Justice.
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