Pavic v Magistrates' Court of Victoria & Chief Commissioner of Police
[2003] VSC 99
•4 April 2003
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
COMMON LAW DIVISION
No. 1001 of 2002
| STEVEN FRANCIS PAVIC | Plaintiff |
| v | |
| MAGISTRATES’ COURT OF VICTORIA and CHIEF COMMISSIONER OF POLICE | Defendants |
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JUDGE: | NETTLE J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 19 March 2003 | |
DATE OF JUDGMENT: | 4 April 2003 | |
CASE MAY BE CITED AS: | Pavic v Chief Commissioner of Police | |
MEDIUM NEUTRAL CITATION: | [2003] VSC 99 | |
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Procedure – Natural justice – Right to be heard – Magistrates’ Court exercising power to order taking of forensic sample – Whether denial of natural justice to make order without affording the subject a chance to be heard – Crimes Act 1958, ss. 464M, 464T, 464U, 464ZF, 464ZFA and 464ZL.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr Kevin Armstrong | Victoria Legal Aid |
| For the Second Defendant | Mr O.P. Holdenson QC with Ms C. Anagnostou | Victorian Government Solicitor |
HIS HONOUR:
Section 464ZF(3) of the Crimes Act 1958 provides for a member of the police force to apply to the Magistrates’ Court for an order directing a person who has been convicted of a forensic sample offence[1] to undergo a forensic procedure for the taking of a sample from any part of the body.
[1]“Forensic sample offences” are defined in Schedule 8. They include murder, manslaughter, rape and a number of other serious offences.
On 19 February 1999 the Magistrates’ Court at Melbourne made an order under s. 464ZF(3) that the Plaintiff undergo a forensic procedure for the taking of a sample from his body. The Plaintiff now seeks an order in the nature of certiorari to quash the Magistrate’s order on the ground[2] that the Magistrate erred in law in a fundamental respect in failing to afford the applicant an opportunity to be heard before the order was made. The principal question for decision in this proceeding is whether s. 464ZF(3) excludes the right to be heard.
[2]Among other grounds.
The decision in Lednar v Magistrates’ Court
In Lednar v Magistrates’ Court[3] another judge of this Court held that the legislative intention of s. 464ZF(3) is to exclude any requirement that notice be given to the subject and to exclude any right in the subject to be heard. If that is the correct view of the law the Plaintiff’s principal ground of application is bound to fail. If on the other hand the section does not exclude all right to be heard, it will be necessary to decide if the Magistrate’s failure to afford a chance to be heard vitiates the order.
[3][2000]VSC 549; (2000) 117 A Crim R 396
Despite my reticence to depart from a decision of another judge of this Court, I do not think that Lednar was correctly decided. I do not consider that I should follow it. In my opinion s. 464ZF(3) does not exclude a subject’s right to be heard.
The law is now settled that where a statute confers power on 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[4]. The first of the rules of natural justice has the effect that a statutory authority having power so to affect a subject is bound to hear the subject.[5] That rule will not yield lightly to manifestations of contrary intention. Such are not to be assumed or spelled out from indirect references. They are not to be derived from uncertain inferences. Nor are they to be grounded in equivocal considerations[6].
[4]Annetts v McCann (1990) 170 CLR 596 at p. 598
[5]Twist v Randwick Municipal Council (1976) 136 CLR 106 at pp. 109 - 110
[6]Commissioner of Police v Tanos (1958) 98 CLR 388 at pp. 395 - 396
No doubt the requirements of natural justice may vary according to the circumstances of the case, the nature of the inquiry, the rules under which the public official is acting and the subject matter that is being dealt with[7]. So too may the rules of natural justice be displaced as much by necessary implication - from the text of the statute, the nature of the power, and the administrative framework created by the statute[8] - as they may be excluded by express provision. It is in each case a question of construction, bearing in mind the subject matter of the power, the repository of the power, and the terms of the statute[9]. But unless the statute employs express words of plain intendment it is not lightly to be supposed that the right to be heard is intended to be excluded[10]. The legislature is not presumed to authorise injustice[11].
[7]Mobil Oil Australia Pty Ltd v Federal Commissioner of Taxation (1963) 113 CLR 475 at pp. 503 - 504
[8]Kioa v West (1985) 159 CLR 550 at p. 619
[9]Heatley v Tasmanian Racing and Gaming Commission (1977) 137 CLR 487 at p. 491
[10]Barratt v Howard (2000) 96 FCR 428 at p. 444 [49]
[11]Heatley v Tasmanian Racing and Gaming Commission, ibid
In Lednar six reasons were given for the conclusion that s. 464ZF(3) does sufficiently express an intention to exclude the right to be heard. They were:
· First, that some other sections in sub–division 30A[12] expressly provide for notice and a limited right to be heard in respect of applications for orders made under those sections, and thus “one could infer that where there was no provision in respect to the decision-making process concerning notice and opportunity to be heard [scil. in s. 464ZF], …the legislature did not intend notice or a right to be heard”[13].
· Secondly, that s. 464ZF(5) expressly provides for notice to be given to a child in respect of whom an order is sought, but does not expressly provide for notice to be given to an adult in respect of whom an order is sought, and that distinction coupled with “… the limited right to be heard in other sections leads to the conclusion that the adult person was not entitled to notice”[14].
· Thirdly, that comparison of the requirement in s. 464ZF(9) (that, in the case of an adult subject, the Magistrate give reasons and serve a copy of the reasons on the subject) with the requirement in s. 464U(9) (that, in the case of a child, the Magistrate state his reasons and have them recorded in the court’s records), “leads to the conclusion that the adult person would not be present”[15].
· Fourthly, that there is no express provision for notice to be given to an adult or right to be heard in s. 464ZF nor in any other provision of the Act[16].
· Fifthly, that because s. 464ZF(8) gives power to the Magistrate to make such inquiries as he or she considers to be desirable, the Magistrate could in an appropriate case “require that notice be given and that the person the subject of the order be brought before the court and be heard. This is left to the Magistrate”[17].
· Sixthly, that some earlier sections in sub-division 30A, such as ss. 464M, 464T and 464U, expressly provide for notice and limited rights of audience, and that “leads to the conclusion that Parliament did not intend that notice be given under s. 464ZF to an adult”[18].
[12]In which s. 464ZF is contained.
[13][2000] VSC at [368]
[14]ibid at [370] and [371]
[15]ibid at [372]
[16]ibid at [373]
[17]ibid at [374]
[18]ibid at [375]
It was also said that there were three additional considerations which strengthened the view that the section excluded the right to be heard. The first was that there may be a degree of urgency in making and determining applications under the section and “if there was a requirement that notice be given and a right to be heard, there could be delay in having the application heard”[19].
[19]ibid at [376]
The second was that the Consultative Committee upon whose recommendations the section was grounded had recommended that the subject be brought before the court before an order was made but that “that was not taken up by the government of the day”[20].
[20]ibid at [379]
The third was what were said to be “the minor nature of the infringement of rights, the small impact on execution of the order on the person concerned, the legislative purpose[21] and the fact that the decision was left to a responsible and careful judicial officer”[22].
[21]His Honour noted that this was said in the Second Reading Speech to be assisting the early detection of crime and providing a significant deterrent to the commission of future offences.
[22]ibid at [380]
With all respect I do not consider that any of the six reason or three additional considerations is sufficient in itself or in combination with the others to exclude the subject’s right to be heard.
The first reason rests upon the principles of statutory construction described by the maxims expressio unius personae vel rei, est exclusio alterius and expressum facit cessare tacitum[23]. It is I think more an application of the former than the latter [24] but either way it assumes a consistency of approach to the drafting of the several provisions of sub-division 30A which I do not consider to be warranted by the history of the legislation.
[23]ibid at [321]
[24]Anthony Horden and Sons Ltd v The Amalgamated Clothing and Allied Trades Union of Australia (1932) 47 CLR 1 at p. 7; R v Wallis; Ex parte Employers Association of Wool Selling Brokers (1949) 78 CLR 529 at p. 550; cf. Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 at p. 575
Some of the history is outlined in Lednar[25]. The subdivision started with legislation enacted in 1988, which was subsequently amended and added to by legislation which was passed in 1993 and in 1997 and, after some further amendments were made, s. 464ZF was added by still further legislation. The conclusion drawn in Lednar on the basis of that history is that s. 464ZF “should be construed in the setting of the whole of the subdivision bearing in mind that it was inserted in 1997 into a legislative scheme which did provide for various types of procedures to be followed in relation to different applications”[26]. In my opinion that is an optimistic assessment of the insight and subtlety of the drafters of the amending legislation. I think that the subdivision is more realistically to be looked upon as a random collocation of procedural provisions, having separate origins in different amending acts, devoid of common theme or scheme[27].
[25]at [330] to[364]
[26]ibid at [362]
[27]cf Heatley v Tasmanian Racing and Gaming Commission, supra at 507
That is not to suggest that s. 464ZF(3) attracts the same rights to notice and presence as are provided for expressly in the earlier sections of the subdivision. The absence of similar express provision in s. 464ZF denies that possibility. But it is to say that the random and disparate nature of the amendments which have been made to the subdivision over its history renders problematical any idea of unifying principle or drafting practice sufficient to generate an implication of expressio unius personae vel rei, est exclusio alterius.
In any event, to adopt and adapt something said by the majority of the High Court in Ainsworth[28], it is highly unlikely that Parliament intended that the Magistrate should act unfairly and thus, even if the provisions for notice and attendance which are made in the earlier sections of subdivision 30A exclude or restrict general law rights to notice and audience under those sections, it is highly unlikely that those sections were intended by Parliament to exclude or restrict the duties of fairness imposed by the general law in situations not specifically dealt with by those sections.
[28]supra at p. 575
The second reason also rests upon an application of the expressio unius or expressum facit method of statutory construction, and hence is to be regarded as questionable. More particularly, the fact that express provision is made in s. 464ZF(5) for notice to be given to a child and to the child’s parent is hardly a compelling basis for inferring an intention thereby to exclude an adult subject’s right to be heard. The argument that it does assumes that the purpose of s. 464ZF(5) is to confer on the child a right to be heard which otherwise does not already exist. But ex hypothesi the child, like any other subject, does have a general law right to be heard, unless excluded by necessary intendment. The purpose of s. 464ZF(5), as it seems to me, is simply to ensure that a child’s parent is made aware of an application brought in respect of the child.
It is true that s. 464ZF(5) provides for notice to be given to both the child and the child’s parent, and it may be reasoned, as it appears to have been reasoned in Lednar, that there would be no need to provide expressly for notice to be given to the child if the intent of the section were not otherwise to exclude the subject’s right to be heard. But I take leave to doubt that reasoning. It is I think more likely that the intention in providing for notice to the child, as well as to the parent, was to avoid the implication (which might arise if there were provision for notice to be given to the parent alone) that it was intended to exclude the child’s right to be heard.
The point may perhaps be demonstrated by contrasting s. 464ZF(5) with s. 464U(5). Section 464U provides for applications for orders to direct a child to undergo a compulsory procedure and s. 464U(5) provides that notice of such an application is to be given to the child’s parent (whether or not the child is in custody) and also to the child (but only if the child is not in custody).
Almost certainly a child is intended to have notice of an application under s. 464U regardless of whether the child is in custody, because the section requires the child to be before the court and the section expressly recognises the child’s right of audience (albeit that it restricts it). But no special provision needs be or is made for giving notice to the child if the child is in custody. It is taken as read that a child in custody will be given notice in custody as a matter of course. Contrastingly, if the child is not in custody, it cannot be assumed that the child will be given notice as a matter of course. The notice will have to be given wherever the child is located. And, in those circumstances, special provision is made for service on the child as well as on the parent. That provision is not for the purpose of conferring on the child a right to notice which does not already exist. Ex hypothesi the right does already exist by virtue of the general law. The provision is made to avoid an implication (which might arise if there were provision for service on the parent alone) that it was intended thereby to exclude the need to give notice to the child.
The position under s. 464ZF(5) is not identical but it is similar to the position under s. 464U(5). Unlike s. 464U(5) which deals with children in and out of custody, s. 464ZF(5) deals only with applications under s. 464ZF(3), and thus only with children who are out of custody. Therefore it does not need to and it does not draw the express distinction between children in and out of custody which is drawn in s. 464U(5). But otherwise it appears to operate in a similar fashion. The objective of the section is to ensure that notice is served on the child’s parent, and the purpose of providing for service on the child as well as on the parent is to prevent arising an implication (which might arise if there were provision for service on the parent alone) that it was intended thereby to exclude the need to give notice to the child.
So analysed, s. 464ZF(5) may be thought to provide some positive support for the conclusion that s. 464ZF(3) assumes the existence of a right to be heard. But at all events I do not consider that s. 464ZF(5) detracts from the application to s. 464ZF(3) of the general law right to be heard.
The third reason contrasts ss. 464M, 464T, and 464U (which provide for the Magistrate to state reasons for decision and to place a note of them on the court records) with s. 464ZF(9) (which provides for the Magistrate to give reasons for decision and to cause a copy of the reasons to be served on the subject). It is reasoned that the requirement for service in s. 464ZF(9) assumes that the subject will not be present at the hearing and hence that the subject must have no right to be present.
The logic of that reasoning may be unassailable. But it is not ineluctable. It is hardly surprising that the section should assume that the subject may not be present, because, unlike the position under s. 464T, there is no requirement in s. 464ZF that the subject be present when the order is made. It is, however, a long way from an assumption that the subject may not be present to a conclusion that the intention of the section is to deprive the subject of his or her right to be present.
Lednar bases that link on the decision of the Queensland Court of Appeal in Stewart v Lewis[29]. There the matter under consideration was a prison governor’s decision to restrict an inmate’s contact visits. The prisoner argued that he had a right to be heard before the decision was made and the argument was rejected. The basis of the decision was that the inmate did not have any thing in the nature of a legitimate expectation defeated by the decision. Towards the end of their joint judgment, however, Macrossan CJ and Davies JA also observed, in obiter dictum:
“The fact that unless security would be compromised, the prisoner is to be given a statement of reasons after a decision for non contact visits is made (clause 5.2.6 of the General Manager’s Rules) but yet nothing is said about an opportunity to argue against it in advance, provides some indication that it is not contemplated that there should be such an opportunity.”
[29][1996] 1 Qd R 451
I do not see in that any basis for the link which is drawn in Lednar. In the context with which the Court of Appeal were concerned it may well have been of some significance that the General Manager’s Rules made no mention of a right to be heard. But the circumstances there were very different to those the subject of s. 464ZF(9). The dictum does nothing to persuade me that s. 464ZF(9) exudes an intention to exclude the subject’s right to be heard.
The fourth reason is similar to the second reason, namely, that it is implicit in the express provisions for notice in the case of a child and the absence of express provision for notice in the case of an adult that the adult has no right to be heard. I have dealt with that already.
The fifth reason is different. I agree with respect that the s. 464ZF(3) gives to the Magistrate a degree of flexibility in determining the procedure to be followed in each case. I also agree that there may be cases where the urgency of the matter or the need for confidentiality or the risk of flight renders it appropriate for the Magistrate to make an order without affording the subject a chance to be heard. As I say, that may explain the absence from s. 464ZF of provisions like ss. 464T(4) and 464U(11) (which prevent the Magistrate from proceeding under those sections in the absence of the subject). But pace Lednar I do not see in the existence of that degree of flexibility reason to conclude that Parliament intended by s. 464ZF(3) to exclude the subject’s right to be heard. To the contrary, to adopt what was said by Brennan J in Johns v Australian Securities Commission[30]:
“Of course, there would be some situations in which natural justice would not require notice to be given… for example, where an investigation by a State law enforcement agency would be frustrated by informing the examinee… But where no such consideration countervails against a person’s right to be heard before a decision prejudicial to his or her interests is taken, the (statutory official) should give that person an opportunity to oppose.”
[30](1993) 178 CLR 403 at p. 431
Furthermore, even in cases of urgency and the like, I think it should be the exception rather than the rule that a final order is made without affording the subject an opportunity to make representations. If the subject is not in custody at the time, the Magistrate has extensive powers under S. 464ZFA to have the subject brought before the court and kept there for the duration of the hearing, and thereby to deal with most security risks[31]. And if the subject is in custody such problems are unlikely to arise.
[31]Indeed it may be wondered what the purpose of that power is if it is not intended that the subject has the right to be heard.
In the result, while emergency and other exceptional situations can be dealt with by measures sufficient and appropriate to cope with the problem, and they may sometimes include proceeding to an order without first affording the subject a chance to be heard, that possibility does not necessitate or warrant the exclusion altogether of the subject’s right to be heard[32].
[32]Tanos supra at pp. 395 –6; Heatley v Tasmanian Racing and Gaming Commission supra at p. 513 - 515
The sixth reason is similar to the second and fourth reasons, in that it contrasts the express provisions for notice in earlier sections of the sub-division with the absence of such provisions from s. 464ZF. It goes further, however, in referring also to the restrictions which are placed upon the subject’s right to be heard by ss. 464M(7), 464T(5) and 464U(12), and the fact that such express restrictions are not imposed by s. 464ZF.
The first thing about that is that Lednar evidently conceives of the earlier provisions as conferring an opportunity to be heard which otherwise would not have existed. In my view those earlier provisions are more accurately to be conceived of as restricting the subject’s existing general law right to be heard[33]. If they are, the absence of something similar from s. 464ZF tends to suggest that the general law right to be heard is not restricted under s. 464ZF; not that it has been excluded.
[33]cf. Annetts v McCann supra at p. 598.8
The second thing is that regardless of whether the earlier provisions are to be characterised as conferring or restricting a right to be heard, there is something in s. 464ZF that is capable of being functionally similar: in the ability of the Magistrate under s. 464ZF(8)(c) to determine the procedure that will be followed upon an application under s. 464ZF(3). Subject to the rules of natural justice, there is no reason to think that the Magistrate could not impose some restrictions upon the right to be heard under s. 464ZF according to the circumstances of the case. Indeed, given the broad nature of the matters to be considered under s. 464ZF as compared to the more precisely defined criteria applicable under the earlier sections of the sub‑division, it makes sense that s. 464ZF(3) should leave to the Magistrate a degree of flexibility that is absent under the earlier sections. The point for present purposes, however, is that all of that bespeaks the existence of a right to be heard; not that it has been excluded.
The final thing is to reiterate the observation in Ainsworth v Criminal Justice Commission, that it is highly unlikely that the provisions made under the earlier sections for hearings of different applications are intended to exclude duties of fairness imposed by general law in situations not specifically dealt with in those sections.[34]
[34]See also State Bank (NSW) v Commonwealth Savings Bank (1984) 154 CLR 579 at p. 583.
The first additional consideration mentioned in Lednar, about urgency and so forth, does not appear to add a great deal to the second reason. The authorities to which I have already referred in dealing with the second reason show how limited is the weight which is to be accorded to those sorts of considerations when determining whether it is the intention of the legislature to exclude the general law right to be heard.
The second additional consideration, about the Consultative Committee’s recommendations, is more troubling but upon analysis it seems that the absence from s. 464ZF of an express requirement to bring the subject before the court is as much consistent with the possibility that there will be exceptional cases in which the Magistrate may proceed in the absence of the subject, as it is with a legislative intention to effect a wholesale exclusion of the right to be heard.
The third additional consideration is something about which views may differ. For my own part, however, the effect of an order under s. 464ZF is not to be discounted as a mere minor infringement of rights. Such an order is justified in the circumstances for which the legislation provides, but only because it has been adjudged by Parliament that, in those circumstances, the interests of society in defeating serious crime outweigh the interests of society in the untrammelled liberty and privacy of its members. Such an order remains an extraordinary restriction upon the liberty of the subject and an invasion of the subject’s privacy. It is only ever to be made in the circumstances intended by Parliament[35] and only ever then with considerable care. The legislation makes plain that an order is not to be made unless it is necessary in all the circumstances[36]. The legislation restricts the power to determine whether it is necessary to make such an order to “responsible and careful judicial officers”[37]. A fortiori, in my opinion, that the legislation presumes the existence of a right to be heard.
[35]R v Abebe [1999]VSC 214 at [24]
[36]ibid
[37]Lednar at [380]
Mr Holdenson submitted that whatever I may think to have been Parliament’s intention about the right to be heard under s. 464ZF(3), Parliament has since amended the Act in ways which show that it accepts the conclusion in Lednar that its intention was to exclude that right[38]. In those circumstances, he said, it is not for me now to say that Parliament originally intended something different. Despite the appeal of that submission, I am not inclined to accept it. It is one thing if Parliament has amended an Act in order to alter a meaning which Parliament supposes an Act to have. In those circumstances, the court will sometimes endeavour to give to the Act in its unamended form the meaning so supposed[39]. But otherwise an Act of Parliament does not alter the law by betraying an erroneous opinion of it[40]. On any view of the matter the absence of an amendment expressly to overcome the first part of the decision in Lednar could rise no higher than that.
[38]Parliament amended the Act to overcome another part of the decision but nothing as to the right to be heard. See: Crimes Act 1958, s. 464ZL
[39]Grain Elevators Board v Dunmuckle Corp (1946) 73 CLR 70 at p. 85
[40]Deputy Federal Commissioner of Taxation (SA) v Elder’s Trustee and Executor Co Ltd (1937) 57 CLR 619 at pp. 625-6; Pearce & Geddes, Statutory Interpretation 5th Ed at [3.32]
The Plaintiff’s alternative contentions
In addition to attacking the decision for the Magistrate’s failure to afford the Plaintiff a chance to be heard, the Plaintiff advanced a number of alternative contentions as to why the order should be treated as invalid or its enforcement should be restrained. Given the view which I take of the right to be heard under s. 464ZF(3) it may not be necessary for me to deal with any of these alternative contentions. But in case I am wrong about the right to be heard, it is appropriate that I do so.
(i) Failure to give reasons
The Plaintiff’s first alternative contention was that the Magistrate was bound[41] to give reasons but had failed to do so, and that the failure to do so was an error of law on the face of the record[42] for which certiorari would go.
[41]By Crimes Act 1958, s. 464ZF(9)(a)
[42]Hansford v Judge Neesham (1994) 7 VAR 172 at pp. 179 – 180; aff’d on appeal at [1995] 2 VR 233, although not expressly on this point.
If it matters, I find that the Magistrate did not give anything which might reasonably be described as reasons. The Magistrate or his clerk made a note of the Magistrate’s conclusions: that the Plaintiff had committed a forensic sample offence and that it was necessary that the order be made. But the form of the note was substantially identical to that which was dealt with in Lednar[43], and with respect I agree for the reasons there expressed that such cannot be regarded as reasons. The note does not provide any guidance as to why the Magistrate considered that it was necessary to make an order[44].
[43]Lednar, supra at [439] – [446]
[44]cf Perkins v County Court of Victoria (2000) 2 VR 246 at pp. 273 – 274, [64] – [69]
In other circumstances that might amount to an error of law which would vitiate the decision[45]. Here, however, s. 464ZF(10) expressly provides that the failure of a Magistrate to provide reasons for making an order under s. 464(3) does not invalidate the order. In my opinion, that is the end of the matter.
[45]ibid at [56] – [61]
(ii) Abuse of process
The Plaintiff’s second alternative contention was that, even if the order were validly issued, the conduct of the Second Defendant in seeking the order and attempting to enforce it was an abuse of process[46] and should be restrained. The contention is based on the delay of more than two years between the making of the order and its service and the attempt to enforce it.
[46]Barton v The Queen (1980) 147 CLR 75 at pp. 96, 107 and 116; Jago v District Court (NSW) (1989) 168 CLR 23 at pp. 25 – 26; Regina v RWO [2002] NSWCCA 133 at [62] – [68]
In my opinion, there is nothing in the point. An affidavit sworn by Douglas Cowlishaw on 19 September 2002, which was not contested, explains that the proceeding in Lednar and the practical necessity to await the outcome of the case caused an eight month delay in the program to enforce orders obtained under s. 464ZF(3) and that was followed by a further substantial delay while the Act was amended to deal with the another aspect of Lednar (to do with decisions made in chambers). Having regard to the contents of the affidavit I cannot see that the matter could practically have been advanced with any greater speed than has been accomplished. Nor can I see how such delay as has occurred could of itself cause unfairness to the Plaintiff. I need not and do not express any opinion as to whether the issue of an order under s. 464ZF is capable of amounting to an abuse of process of the kind which the court will stay. There has been no abuse.
(iii) Corrections Act 1986, s. 41
The Plaintiff’s final alternative contention was that, even if the order were validly issued, the Second Defendant would have no right to enforce it against the will of the Plaintiff. I do not consider that there is anything in that point either. The contention is based on evidence in Mr Cowlishaw’s affidavit that he sought the permission of the prison authorities to enter the prison where the Plaintiff is held for the purpose of enforcing the order. The argument is that the permission must have been granted under s. 41 of the Corrections Act 1986 because the Act does not expressly provide for any other form of permission which is pertinent, and it is said therefore that the Plaintiff is entitled to refuse the visit pursuant to s. 41(3).
The short answer to that argument is that the permission is not granted under s. 41 but simply because the order, if valid, confers lawful authority to enter the prison to execute the order.
The consequences of the failure to afford a chance to be heard
I come back to the failure of the Magistrate to afford the Plaintiff a chance to be heard.
Other things being equal, certiorari will go to quash a decision which affects a subject’s liberty, rights, interests or legitimate expectations if the decision is the result of a denial of the subject’s right to be heard[47]. That is because the right to be heard is so fundamental to our legal system that it is presumed:
“… that Parliament intended that a failure to observe it should render null and void any decision reached in breach of this requirement.”[48]
[47]Craig v South Australia supra at p. 174
[48]O’Reilly v Mackman [1983] 2 AC 237 at p. 276
It has not been suggested that the circumstances of this case were so urgent or otherwise exceptional as to warrant the Magistrate proceeding without affording to the Plaintiff a chance to be heard.[49] The only basis on which the Second Defendant has sought to uphold the Magistrate’s decision is that s. 464ZF(3) excluded the Plaintiff’s right to be heard. In my opinion it does not. I consider that the Magistrate’s decision is a nullity[50].
[49]cf The Commissioner of Police v Tanos supra at p. 397
[50]O’Reilly v Mackman ibid
It was urged on behalf of the Second Defendant that it is overwhelmingly probable that the Magistrate in this case would still make the same decision even if the Plaintiff were given a chance to be heard, and thus that there is no utility in certiorari and so it should not be granted. I do not accept that contention. It is not a basis to refuse certiorari that the end result may well be the same[51].
[51]Medical Council v Spackman [1943] AC 627 at p. 644; Heatley v Tasmanian Gaming and Racing Commission, supra at p. 497
In my opinion an order in the nature of certiorari should go to quash the decision or rather the legal effect or the legal consequences of a decision and order of the Magistrate under s. 464ZF(3), because it was made in violation of a subject’s right to be heard[52], it plainly affects the liberty of the Plaintiff, and thus the rights, interests and legitimate expectations of the Plaintiff, and there is no right of appeal from the decision[53].
[52]Heatley v Tasmanian Gaming and Racing Commission supra at p. 516; Ainsworth v Criminal Justice Commission supra, at p. 580
[53]The Queen v Federal Court of Australia; Ex Parte W.A. National Football League (1979) 143 CLR 190 at p. 231
That does not mean that a Magistrate upon a further application for an order will necessarily be bound to hear the Plaintiff and even less that he or she will necessarily be bound to hear everything which the Plaintiff wishes to say or present. Whether the Plaintiff may say anything and if so how much will be a matter for the Magistrate bearing in mind that, for the reasons already given, the content of natural justice is variable according to the circumstances and that the Magistrate is afforded a considerable degree of procedural flexibility by s. 464ZF(8). What it does mean, however, is that the Magistrate is not to approach such an application on the basis that s. 464ZF(3) excludes the right to be heard and hence, in the absence of exceptional circumstances, the Plaintiff should be given so much chance to be heard as in the circumstances of the application is properly to be regarded as reasonable.
Conclusion
For the reasons given, there should be an order in the nature of certiorari and the Second Defendant should pay the Plaintiff’s costs of the proceeding.
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