Perry v Director of Public Prosecutions

[1985] FCA 223

Re: EMILY PHYLLIS GERTRUDE PERRY
And: DIRECTOR OF PUBLIC PROSECUTIONS; ALBERT GORDON FRY and ROBERT GORDON
LEAN
6 FCR 578
No. G24 and G27 of 1985
Administrative Law

COURT

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIAN DISTRICT REGISTRY
GENERAL DIVISION
Fisher J.(1)

CATCHWORDS

Administrative Law - judicial Review - applications to review decision of Magistrate and Judge under Service and Execution of Process Act - whether decision of Magistrate still subsisting - whether applicant "person aggrieved" by decision - exercise of Courts discretion not to entertain proceedings - time for exercise of discretion - whether decision of Judge of Supreme Court was an administrative decision.

Administrative Decisions (Judicial Review) Act 1977 ss.3,5,9,10

Service and Execution of Process Act 1901 ss.18,19

Constitution s.77(iii)

Federal Court Rules Order 54 rule 4

Matters G24 and G27 of 1985.

Administrative Law - Judicial review - Two decisions - The first, that of a magistrate to return the accused to Victoria - The second, being that of a judge of the Supreme Court reviewing the first decision - Second decision made before the hearing of the application for review by the Federal Court of Australia - Whether applicant then aggrieved by the magistrate's decision - Court's discretion - Relevance of the width of the Supreme Court's power to review extradition order - Supreme Court decision upon review not being of an administrative character - Administrative Decisions (Judicial Review) Act 1977 (Cth), ss 3, 5(1), 9, 10 - Service and Execution of Process Act 1901 (Cth), ss 18(6), 19 - Federal Court Rules, O 54, r 4.

HEADNOTE

The applicant had been apprehended in Adelaide in relation to a charge of murder in Melbourne. An order was made pursuant to s 18(6) of the Service and Execution of Process Act 1901 that she be returned to Victoria. The magistrate making the order refused an application pursuant to s 18(6) of the Act that she be discharged on the basis that none of the grounds in pars (c) or (d) of that subsection had been made out. The applicant applied to the Federal Court of Australia for orders of review under the Administrative Decisions (Judicial Review) Act 1977 of the magistrate's decision, having also applied to the Supreme Court of South Australia for review of the magistrate's order under s 19 of the Service and Execution of Process Act. Upon a judge of the Supreme Court, Bollen J, dismissing the application for review under s 19 of the Act and substantially confirming the magistrate's order, the applicant applied to the Federal Court of Australia, for orders of review under the Judicial Review Act of Bollen J's decision. In considering both applications for orders of review,

Held: (1) The applicant was not a "person aggrieved" by the magistrate's decision, since it was no longer operative.

(2) The court in any case would have exercised its discretion not to entertain the application for review of the magistrate's decision, an application for review of the same decision having already been made to a judge of the Supreme Court.

Alexander Silbersher v. Maurice W Gerkens (Federal Court of Australia, Lockhart J, 14 September 1984, unreported); Aston v. Irvine (1954) 92 CLR 353; Lamb v. Moss (1983) 49 ALR 533; Woss v. Jacobsen (1984) 4 FCR 356, referred to.

(3) The second application for review should be dismissed as the decision of Bollen J upon review under s 19 of the Act was not a decision of an administrative character.

Queen Victoria Memorial Hospital v. Thornton (1953) 87 CLR 144; Aston v. Irvine, (supra), referred to.

HEARING

Adelaide, 1985, May 28, 31. #DATE 31:5:1985
APPLICATIONS

Applications under the Administrative Decisions (Judicial Review) Act 1977 for review of orders first, of a magistrate that the applicant be returned to Victoria under s 18(6)(e) of the Service and Execution of Process Act 1901 and secondly, of a judge of the Supreme Court of South Australia upon review of that magistrate's decision.

S W Tilmouth and R S Hayes, for the applicant.

F G Fitzgerald QC and J R Danvers, for the respondents.

Cur adv vult

Solicitors for the applicant: Legal Services Commission.

Solicitors for the respondents: Fisher Jeffries & Co.

GFV

ORDER

THE COURT ORDERS THAT:

Matter G24 of 1985

1. The application be dismissed.

2. The applicant Emily Phyllis Gertrude Perry pay to the respondents their costs of this application.

Matter G27 of 1985

1. The application be dismissed.

2. The applicant Emily Phyllis Gertrude Perry pay to the respondents their costs of this application.

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

Applications dismissed with costs

JUDGE1

These are two applications under the provisions of s.5 of the Administrative Decisions (Judicial Review) Act 1977 ("the Judicial Review Act") initiated by the applicant Emily Phyllis Gertrude Perry ("Mrs. Perry").

1. The parties to each application are the same, as are the relevant background facts. However in matter No. G.24 of 1985 Mrs. Perry sought a review by this Court of "the decision ordering the extradition to Victoria of the applicant" made by Mr. N.S. Manos C.S.M. sitting as a Court of Summary Jurisdiction at Adelaide on 8 March 1985. In matter No. G27 of 1985 she sought a review by this Court of "the decision ordering the extradition to Victoria of the applicant made by Mr. Justice Bollen, a Judge of the Supreme Court of South Australia, on 2 May 1985". The fact that neither of the decision makers was made a party to the proceedings was noted but I was asked to take no action in this regard at this preliminary stage. In each matter the respondents filed a Notice of Objection to the competency of this Court to hear the applications in accordance with the provisions of Order 54 rule 4 of the Rules of this Court and an amended notice was by consent filed in matter No. G24 on the day of hearing. The matters in these notices were with the agreement of the parties all dealt with in the first instance as objections to the jurisdiction of this Court to review the decisions. Submissions were then made by counsel for the respondents to the effect that even if the Court had jurisdiction I should in the exercise of my discretion refuse to entertain the applications.

2. The relevant facts are few and not in dispute and can be briefly stated. On 8 November 1984 Mrs. Perry was arrested in Adelaide on a Provisional Warrant issued on the Information of the respondent Robert Gordon Lean on the charge that she did on 14 March 1961 at Melbourne murder her husband Albert Otto Haag. Mrs. Perry attended at the Adelaide Magistrates Court on 12 November 1984. She there made an application to Mr. Manos C.S.M. ("the Magistrate") pursuant to sub.s. 18(6) of the Service and Execution of Process Act 1901 ("the Act") that she be discharged. The Magistrate heard much evidence and argument, primarily directed to the prejudice which Mrs. Perry alleged she suffered by virtue of the delay in laying the information, and on 8 March 1985 delivered judgment with extensive reasons. He dismissed Mrs. Perry's application and made an order pursuant to para.18(6)(e) that she be returned to Victoria. Mrs. Perry then applied under s.19 of the Act to a Judge of the Supreme Court for a review of the order of the Magistrate. Mr. Justice Bollen heard the matter in chambers and received further evidence, both oral and documentary, from both parties. The hearing extended over three days and on 2 May 1985 he delivered an ex tempore judgment. He dismissed the application for a review and confirmed the order of the Magistrate that Mrs. Perry return to Victoria to answer the charge. However he varied this order in respect of the date upon which Mrs. Perry was required in the Melbourne Magistrates Court by appointing Monday 15 July 1985 in lieu of Monday 6 May 1985. He reserved the right to Mrs. Perry to apply in relation to that date. During the afternoon of the hearing before me it was agreed that I could, if appropriate, take into account the fact that a notice of appeal to the Full Supreme Court against the order of Bollen J. had been filed. It was these orders of the Magistrate and Bollen J. which this Court was asked to review.

3. Section 5 of the Judicial Review Act, to the extent relevant to these proceedings, provides as follows:
   
   

"5 (1). A person who is aggrieved by a decision to which this Act applies... may apply to the Court for an order of review in respect of the decision on any one or more of the following grounds:

(a) ...

(e) that the making of the decision was an improper exercise of the power conferred by the enactment in pursuance of which it was purported to be made;

(f) that the decision involved an error of law, whether or not the error appears on the record of the decision;

(g) ...

(h) that there was no evidence or other material to justify the making of the decision;

(j) that the decision was otherwise contrary to law."

1. It is at this stage unnecessary to set out sub.s.5(2) which lists a number of particular matters which that sub-section is to be construed to include.

2. The words in sub.s.5 (1) "decision to which this Act applies" are relevantly defined as follows in sub.s.3(1):
   
   

"' decision to which this Act applies' means a decision of an administrative character made... (whether in the exercise of a discretion or not) under an enactment, other than a decision by the Governor-General or a decision included in any of the classes of decisions set out in Schedule 1;"

"Enactment" is defined to mean an Act and in these matters there was no dispute that the Service and Execution of Process Act was an enactment.

Sub-section 3(4) is relevant and it provides: "(4) In this Act -

(a) a reference to a person aggrieved by a decision includes a reference -

(i) to a person whose interests are adversely affected by the decision; or

(ii) ..."

1. Much debate in matter G24 centred around s.10 of the Judicial Review Act, which to the extent material provides as follows:
   
   

" (1) The rights conferred by sections 5,6 and 7 on a person to make an application to the Court in respect of a decision...

(a) are in addition to, and not in derogation of, any other rights that the person has to seek a review, whether by the Court, by another Court, or by another tribunal, authority or person, of that decision...

(b) ...

(2) Notwithstanding sub-section (1) -

(a) ...

(b) the Court may, in its discretion, refuse to grant an application under section 5, 6 or 7 that was made to the Court in respect of a decision... for the reason -

(i) that the applicant has sought a review by the Court, or by another Court, of that decision... otherwise than under this Act; or

(ii) that adequate provision is made by any law other than this Act under which the applicant is entitled to seek a review by the Court, by another Court, or by another tribunal, authority or person, of that decision...

(3) In this section, 'review' includes a review by way of reconsideration, re-hearing, appeal, the grant of an injunction or of a prerogative or statutory writ or the making of a declaratory or other order."

1. Section 18 of the Act deals with the powers and duties of the Magistrate in relation to extradition and s.19 provides for a review by the Supreme Court of his orders. These sections are to the extent relevant to Mrs. Perry's applications to the Magistrate and Bollen J. as follows:
   
   

"18. (6) If, on the application of the person apprehended, it appears to the Magistrate or Justice of the Peace before whom a person is brought under this section that -

(a) the charge is of a trivial nature;

(b) the application for the return of the person has not been made in good faith in the interests of justice; or

(c) for any reason, it would be unjust or oppressive to return the person either at all or until the expiration of a certain period,

the Magistrate or Justice of the Peace may -

(d) order the discharge of the person;

(e) order that the person be returned after the expiration of a period specified in the order and order his release on bail after the expiration of that period; or

(f) make such other order as he thinks just.

19. (1) Where -

(a) a person apprehended is dissatisfied with an order made under sub-section (3) or

(6) of the last preceding section; or

(b) ...

the apprehended person... may apply to a Judge of the Supreme Court of the State or part of the Commonwealth in which the person was apprehended, sitting in chambers, for a review of the order, and the Judge may review the order.

(2). ...

(3). The review of the order shall be by way of a rehearing, and evidence in addition to, or in substitution for, the evidence given on the making of the order may be given on or in connexion with the review.

(4). ...

(5). Upon the review of an order, the Judge may confirm or vary the order, or quash the order and substitute a new order in its stead.

(6). The order as confirmed or varied, or the substituted order, shall be executed according to its tenor as if it had been made by the Magistrate or Justice of the Peace."

1. Mrs. Perry in her application under sub.s.18(6) to the Magistrate said that the application to return her to Victoria had not been made in good faith in the interests of justice, and that it would be unjust and oppressive to return her to Victoria. After what Bollen J. described as a most thorough hearing the Magistrate found that Mrs. Perry had not made out her case and he made an order for her return. Bollen J., as already related, conducted a review under s.19 of the Magistrate's order and he confirmed it with the variation already mentioned. Prior to the commencement of that review Mrs. Perry made the application to this Court in matter G24 of 1985 and, subsequent to the making by Bollen J. of his order, she made the application in matter No. G27 of 1985. The preliminary arguments in this Court on the notices of objection were presented and heard separately.
   Matter G24 of 1985
   
   

2. In this matter Mrs. Perry sought a review by this Court under the Judicial Review Act at a time when she had earlier initiated proceedings under s.19 of the Act in the Supreme Court.

3. The amended Notice of Objection to Competency filed on the day of hearing by the respondents was in the following terms:
   
   

"The respondent (sic) objects to the jurisdiction of this Court to try this application for an order of review under the Administrative Decisions (Judicial Review) Act 1977 on the grounds that:

1. The respondents object to the jurisdiction of this Honourable Court to grant the applicant a review pursuant to the Administrative Decisions Judicial Review Act 1977 of the order of Mr. Manos, Chief Magistrate made on the 8th day of March 1985, for the reason that the Supreme Court of South Australia having jurisdiction pursuant to Section 19 of the Service and Execution of Process Act 1901-1973 to review the said order, on the 2nd day of May 1985 the Honourable Mr. Justice Bollen, a judge of the said Supreme Court, reviewed the said order and ordered that the Chief Magistrate's order be confirmed save that the date upon which the applicant be required in the Melbourne Magistrate's Court be amended from 6th May 1985 to 15th July 1985.

2. The applicant is not a person who is aggrieved by the decision of Mr. Manos, Chief Magistrate, made the 8th day of March 1985 ordering that the applicant be returned to the State of Victoria to answer a charge of murder in that she is not a person whose interests are adversely affected by the said decision because on the 2nd day of May 1985 the Honourable Mr. Justice Bollen reviewed the said decision and adjudicated thereon.

3. Further, or in the alternative, even if this Honourable Court has jurisdiction to review the said order of the said Mr. Manos, it should in its discretion refuse to do so for the reasons as follows:-

(a) That the applicant has sought and obtained a review of the said order by another court, namely the Supreme Court of South Australia,

(b) That adequate provision is made by Section 19 of the Service and Execution of Process Act 1901-1973 under which the applicant was entitled to seek and did seek a review of the said order by the said Supreme Court.

1. In support of his Notice of Objection counsel for the respondents argued that I had no jurisdiction under the Judicial Review Act to review the decision of the Magistrate. He contended that, it having been reviewed by Bollen J., the matter was res judicata, and that Mrs. Perry was not, in the words of sub.s.5 (1), aggrieved by the decision of the Magistrate. He further submitted that in the exercise of my discretion under s.10 I should not entertain the application.

2. It was common ground that, but for the review by Bollen J. under s.19 of the Act, I would have had jurisdiction to review the decision of the Magistrate. Whether or not this jurisdiction has become exclusive by virtue of s.9 of the Judicial Review Act was raised, argued, but not decided by Lockhart J. in Alexander Silbersher v Maurice W. Gerkens and Anor, an unreported decision delivered on 14 September 1984 in Sydney.

3. The decision of the Magistrate was without doubt a decision of an administrative character made under an enactment. (Aston v Irvine (1954) 92 C.L.R. 353, Lamb v Moss and Another (1983) 49 A.L.R. 533).

4. I am not prepared to accept counsel's contention that the matter was res judicata. No authority in support or even discussion of such a submission in circumstances such as those before me was advanced. I would not doubt that if this Court had reviewed the Magistrate's decision prior to an application under s.19 the matter would not have been res judicata. I see this as a very unsatisfactory principle upon which to decide whether this Court can review the decision of the Magistrate.

1. I would however accept and adopt his contention that Mrs. Perry is not a person aggrieved by the decision of the Magistrate. She is without doubt aggrieved and her interests are adversely affected by the fact that she is directed to return to Victoria. She was aggrieved by the decision of the Magistrate at least up to the time that Bollen J. pronounced, after a rehearing, upon her application to him. In my opinion however she is at present aggrieved not by the decision which she seeks to have reviewed under the Judicial Review Act but by the decision of Bollen J. confirming and varying in part the decision of the Magistrate. The operative decision now is the decision of Bollen J., which has at least, for practical purposes, superseded that of the Magistrate. Sub-section 19(6) to the effect that the decision of Bollen J. "shall be executed according to its tenor as if it had been made by the Magistrate" confirms that the presently operative decision is that of the Supreme Court Judge. However, notwithstanding this fact, it is to be executed as if it had, contrary to the true position, been made by the Magistrate. The fact that the Magistrate's decision is no longer for practical purposes an operative decision would suggest that it is not a "decision" for the purposes of the Judicial Review Act. However in Lamb v Moss and Anor supra the Full Court of this Court, after referring at page 551 to the difficulties which have been encountered in determining what is a "decision", said at page 556:
   
   

"In our opinion, there is no limitation, implied or otherwise, which restricts the class of decisions which may be reviewed to decisions which finally determine rights or obligations or which may be said to have an ultimate and operative effect. Such a conclusion is, in our opinion, in accordance with the plain legislative intention revealed by the words of the Act."

1. In the circumstances I prefer to base my conclusion on the fact that in my opinion Mrs. Perry is not presently aggrieved by the decision of the Magistrate. She is not entitled therefore to have that decision reviewed by this Court.

2. There is strictly no need to take the matter further. However there was much debate as to whether, if I had jurisdiction to review, it would be proper for me, if I wished, to refuse at this stage pursuant to the provisions of s.10 of the Judicial Review Act, to entertain the application. The circumstances of this matter strongly persuade me that this would be the appropriate exercise of my discretion. It is, in my opinion, highly undesirable that parallel proceedings seeking the same end should be conducted simultaneously in two Courts. Particularly is this the case if one Court has the widest of powers as has the Supreme Court to review the Magistrate's decision on the merits. It is entirely proper that this Court, with its power of review limited to errors of law, exercise this discretion at the commencement of proceedings. Counsel for Mrs. Perry contended that I should not exercise such a discretion at this stage, and in fact that I had no present discretion. His contention was that I should hear out the matter and only at the end of the day should, as a matter of remedy, refrain if appropriate from granting relief. However, my opinion is that the proper course would be to act now and, if necessary, to refuse to entertain the application.

3. In Lamb v Moss and Anor supra at 557 the Full Court said:
   
   

"To those who have the concerns which we have mentioned we would say that it should not be overlooked that we have earlier concluded that this court has conferred upon it a wide discretion to grant or refuse relief in a particular case. It is in the exercise of that discretion that the court will exercise control over the circumstances in which and the stage at which judicial review will be embarked upon. Furthermore, it should be understood that the court's discretion is not limited to what is to occur when it comes to the question of whether to grant or refuse final relief."

1. In concluding the matter, and in particular after emphasizing that the power to make an order for review in committal proceedings should be exercised only in most exceptional cases, the Court said at page 564:
   
   

"Further, the judge to whom the proceedings are remitted will have a discretion to refuse relief as we have pointed out. The exercise of that discretion will not necessarily call for a full investigation of the merits: see Ward v Williams

(1955) 92 C.L.R. 496 at 514."

1. The matter before me is on the facts a strong case, for the decision of the Magistrate has already been reviewed on the merits, as well as for possible error of law, by way of a rehearing on additional evidence. It is an exercise in futility for this Court to review now the Magistrate's decision on the facts before him. I strongly endorse the remarks of Sheppard J. in Woss v Jacobsen and Anor (1984) 56 A.L.R. 254 at p.264 as follows:
   
   

"That leaves the second submission which is a challenge to the decision made by the magistrate upon the application made by the applicant pursuant to sub-s 18(6) of the Act. I have reached the conclusion that it would be inappropriate for this court to deal with that matter. In my opinion the case falls squarely within the provisions of sub-para 10(2)(b)(ii) of the Judicial Review Act which I have earlier quoted. Here s.19 makes adequate provision under which the applicant is entitled to seek a review by another court, that is, the Supreme Court of Western Australia of the decision of which he complains. The review is a complete one. It is not restricted in the way that review by this court under the Judicial Review Act is restricted. Furthermore there are similar applications pending brought by the Crown in the five other cases. It would seem to me to be quite unsatisfactory for there to be two hearings of the same question by different courts. The sensible course is for each of the matters to be reviewed by the one court, in this case the Supreme Court of Western Australia. For that reason, although I have jurisdiction to do so, in the exercise of my discretion, I refuse to entertain the application on this ground."

1. The application in this proceeding G24 of 1985 must be dismissed with costs.
   Matter G27 of 1985
   
   

2. This is an application for review under the Judicial Review Act of the decision of Bollen J. confirming with variation the decision of the Magistrate. The respondents' Notice of Objection to Competency is in the following terms:
   
   

"The respondents object to the jurisdiction of this Court to try this application for an order of review under the Administrative Decisions (Judicial Review) Act 1977 on the grounds that:

1. The Federal Court of Australia has no jurisdiction to entertain an application for an order of review of the decision made by His Honour Mr. Justice Bollen at Adelaide on the 2nd day of May 1985, because the said decision was not one of an administrative character and that therefore not a 'decision to which the Act applies' as defined in section 3 (1) of the Administrative Decisions (Judicial Review) Act 1977.

2. Further, that the only Tribunal with jurisdiction to entertain an appeal from the said decision of His Honour Mr. Justice Bollen is the Full Court of the Supreme Court of South Australia.

1. Mrs Perry's contention was that the decision of Bollen J. was administrative in character because it was made in the exercise of a review of an administrative decision. In my opinion this submission cannot be accepted and the objection must be upheld. It is not possible to characterise the decision of Bollen J. as being of an administrative character. It is a judicial decision given by him as a judge of the Supreme Court in the exercise of the judicial power of the Commonwealth invested in him as a member of the State Court. If it were an administrative power, its conferral would doubtless be beyond the jurisdiction of the Federal Parliament (Queen Victoria Memorial Hospital v Thornton (1953) 87 C.L.R. 144). In Aston v Irvine supra the High Court determined that the decision of a Magistrate under s.18 of the Act was administrative in character. It also gave consideration to the nature of a review by a Supreme Court Judge under s.19. At page 365 it had this to say:
   
   

"But the scheme of s.18 and s.19 seems to be to treat the magistrate or the justice as exercising a preliminary discretion to grant, so to speak, process ministerially and then to submit for judicial review by a judge of the Supreme Court the whole question of the liability of the person apprehended to be returned to the State originating the proceeding." I have added the emphasis.

At page 366 the Court continued -

"But s.19 gives the accused person, if his return is directed, or the person bringing the warrant, if the accused is discharged, a right to resort to a judge of the Supreme Court for a review of the matter. The review is by way of rehearing and may be on fresh evidence. The judge may confirm vary or quash the order and substitute a new order. He may release the accused on bail and exercise other incidental powers. Closely as the powers of the judge may resemble the authority of the magistrate or justice, the provision nevertheless does appear to treat the question as a matter arising under federal law for decision by a court of justice. There is no reason why it should not be so treated. The pattern of the legislation resembles in a very general way the pattern of the taxing laws which enable the commissioner or a board of review to make a binding assessment subject to appeal to the Court in its original jurisdiction. Section 19 involves an exercise of the legislative power conferred on the Parliament by s.77(iii) of the Constitution. Notwithstanding the fact that the jurisdiction is in terms conferred on a judge of the Supreme Court of a State and not upon the court eo nomine, it is a valid exercise of the power. For the jurisdiction is conferred on every judge as a member of the court. In other words, it is in his capacity to constitute the court that he is named: see Parkin and Cowper v James (1) and Medical Board of Victoria v Meyer (2). It means no more than that the court shall be constituted by one judge."

1. In my opinion this Court has no jurisdiction to review the decision of Bollen J. because his decision is not administrative in character. This application also must be dismissed with costs.