Police v Lymberopoulos

Case [2007] SASC 247

SUPREME COURT OF SOUTH AUSTRALIA

(Full Court)

POLICE & THE STATE OF SOUTH AUSTRALIA v LYMBEROPOULOS & ORS

[2007] SASC 247

Judgment of The Full Court

(The Honourable Chief Justice Doyle, The Honourable Justice Bleby and The Honourable Justice Sulan)

4 July 2007

ADMINISTRATIVE LAW - JUDICIAL REVIEW - GROUNDS OF REVIEW - PROCEDURAL FAIRNESS - CONSEQUENCE OF FAILURE TO ACCORD PROCEDURAL FAIRNESS

Appeal - certiorari - jurisdictional error - Magistrate disposed of proceedings without observing requirements of procedural fairness - review by statutory process of Expiation of Offences Act 1996 (SA) - whether error of the Magistrate constitutes jurisdictional error - whether order in the nature of certiorari available if error of Magistrate does not amount to jurisdictional error - whether Supreme Court has power to quash decision of Magistrates Court.

Held: Order in the nature of certiorari available to correct denial of procedural fairness by inferior court - appeal dismissed.

Expiation of Offences Act 1996 (SA) ss 4, 7, 8, 8A, 9, 13, 14; Criminal Law (Sentencing) Act 1988 (SA); Magistrates Court Act 1991 (SA) s 6; Supreme Court Rules 1987 (SA) rr 98, 200; Supreme Court Act 1935 (SA) s 17; Workers Rehabilitation and Compensation Act 1986 (SA) s 881; Australian Constitution s 75(v); Coroner's Act 1920 (WA) s 7; Child Welfare Act 1939 (NSW); Justices Act 1957 (Vic) s 164; Supreme Court Rules 1947 (SA) o 59; Supreme Court Civil Rules 2006 rr 199-201; Administrative Decisions (Judicial Review) Act 1977 (Cth), referred to.
R v Watson; Ex parte Armstrong (1976) 136 CLR 248; Annetts v McCann (1990) 170 CLR 596; J v Lieschke & Ors (1987) 162 CLR 447, applied.
Craig v The State of South Australia (1995) 184 CLR 163; Craig v Workers Compensation Tribunal (2004) 90 SASR 490; Re Refugee Tribunal; Ex parte Aala (2000) 204 CLR 82; Re McBain; Ex parte Australian Catholic Bishop's Conference & Anor (2002) 209 CLR 372; Bishop's Conference & Anor (2002) 209 CLR 372; Plaintiff S157/2002 v The Commonwealth of Australia (2003) 211 CLR 476; Applicant Veal of 2002 v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 225 CLR 88; Attorney-General (NSW) v Quin (1990) 170 CLR 1; Stollery v Greyhound Racing Control Board (1972) 128 CLR 509; Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374; The Queen v Gray; Ex parte Marsh (1985) 157 CLR 351; R v Chairman of General Sessions at Hamilton; Ex parte Atterby [1959] VR 800; R v Wandsworth Justices; Ex parte Read [1942] 1 KB 281; Parker v Director of Public Prosecutions (1992) 28 NSWLR 282; Brand & Hein v Parson [1994] 1 VR 252; Jones v Director of Public Prosecutions (1994) 76 A Crim R 422; Fagioli v Ure (1996) 84 A Crim R 504; Flynn v Director of Public Prosecutions & His Honour Judge Barton Stott County Crt [1998] 1 VR 322; Hall v…

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AGLC
Police & The State of South Australia v Lymberopoulos & Ors [2007] SASC 247
Case
[2007] SASC 247
Decision Date

CaseChat Overview and Summary

In Police v Lymberopoulos, the defendants, South Australia Police and The State of South Australia, appealed against a decision made by the Magistrates Court of South Australia. The appeal focused on the issue of whether the Magistrate's failure to observe procedural fairness constituted a jurisdictional error, and if an order in the nature of certiorari could be granted to rectify the error.

The primary legal issue before the court was whether the Magistrate's failure to observe procedural fairness amounted to a jurisdictional error. The appeal hinged on whether the Supreme Court had the authority to quash the Magistrates Court's decision if the error did not constitute jurisdictional error. The court was also required to determine if an order in the nature of certiorari was available in such circumstances.

The court's reasoning centred on the distinction between jurisdictional error and other forms of error. The court noted that while procedural fairness is a fundamental requirement, a failure to observe it does not necessarily amount to jurisdictional error. Instead, the court considered whether the Supreme Court could still issue an order in the nature of certiorari to address breaches of procedural fairness. The court concluded that the Supreme Court could make such an order, even if the error did not amount to jurisdictional error, because it corresponds to the inherent jurisdiction of the English Courts at Westminster.

The court ultimately decided that the appeal should be dismissed. It held that the Supreme Court has the power to quash the Magistrates Court's decision if procedural fairness was not observed, even if the error did not amount to jurisdictional error. The court emphasised that procedural fairness is a crucial aspect of judicial decision-making and that the Supreme Court retains the ability to correct such errors through orders in the nature of certiorari.

In summary, the court affirmed that the Supreme Court can intervene to address breaches of procedural fairness by the Magistrates Court, even in the absence of jurisdictional error, by issuing an order in the nature of certiorari. The appeal was dismissed, and no further orders were made.

Orders

Orders of the court

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Background

Background to the litigation

South Australia Police and The State of South Australia were defendants in the proceedings. They have appealed against the decision. Mr Kourakis QC SG, for the appellants, submits that the Magistrate’s error (which is no longer contested) did not deprive the Magistrates Court of jurisdiction over the review applications. He submits that an order quashing the decisions cannot be made unless the Magistrate’s error means that the decision was made without jurisdiction. Accordingly he argues that the appeal should be allowed.Facts and legislation A number of matters argued before the Judge have now fallen away. The only issue argued is that identified. In what follows I will ignore the other matters. The Expiation Act establishes a scheme under which expiation notices can be issued to a person by name or as the owner or driver of a motor vehicle in respect of certain types of alleged offences, including less serious traffic offences and parking offences. The recipient of a notice can pay the nominated expiation fee, or elect to be prosecuted (that is, deny that he or she committed the alleged offence), or seek a review of the notice on the ground that the alleged offence is trifling or on the ground of hardship: see s 7, s 8, s 8A and s 9. If the person does none of these things, the authority that issued the expiation notice can forward a certificate with prescribed particulars to the Registrar of the Magistrates Court: s 13(1). The Registrar, without conducting a hearing, can make an enforcement order: s 13(2) and s 13(4). The alleged offender is then taken to have been convicted by the Court on that day of the offence to which the order relates, and the enforcement order is to be taken as an order of the Magistrates Court imposing a fine enforceable in the same way as a fine under the Criminal Law (Sentencing) Act 1988 (SA): s 13(6) of the Expiation Act. A person against whom an enforcement order has been made may appeal against the conviction in the ordinary way, or may apply to the Magistrates Court for a review of the enforcement order, but cannot do both: s 14(8). Section 14(3) of the Expiation Act specifies the grounds on which an application can be made to the Magistrates Court. After conducting a review the Court can confirm the enforcement order, vary or revoke the order or make any ancillary order: s 14(4). The decision of the Court is not subject to appeal. Section 14(6) provides as follows:14(6)A decision of the Court made on a review of an enforcement order is not subject to appeal by the person liable under the order.Jurisdiction to conduct a review hearing is conferred on the Magistrates Court by s 14(1), which provides as follows:14(1)Subject to this section, the person liable under an enforcement order may apply to the Court for a review of the order within 30 days of being given notice of the order.“The Court” is defined by s 4 of the Expiation Act to be the Magistrates Court. Section 6 of The Magistrates Court Act1991 (SA) establishes the Magistrates Court as a court of record.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

In the present case there is no right of appeal, and these observations have no application.Conclusion For those reasons I would dismiss the appeal. BLEBY J: I agree that the appeal should be dismissed for the reasons given by the Chief Justice. I merely add a few observations of my own. The cases which the Chief Justice has comprehensively analysed point to certiorari being available to correct a denial of procedural fairness on the part of an inferior court. In this State the writs of mandamus, prohibition and certiorari have long been abolished. They were replaced with orders “in the nature of” and “(having) the effect of” those writs.[1] Proceedings were commenced by obtaining an order nisi returnable before a single judge or the Full Court.[1] Order 59, Supreme Court Rules 1947. In 1987 the procedure was replaced by what was merely called a summons for judicial review.[2] In the Supreme Court Civil Rules 2006 the procedure is by what is called an action for judicial review.[3][2] Rule 98, Supreme Court Rules 1987.[3] See Rules 199-201, Supreme Court Civil Rules 2006. At least since 1987 it has been possible to seek declaratory and injunctive relief on a summons for judicial review,[4] although the ability to engage that process cannot be used to overcome time limits for bringing judicial review proceedings.[5] The use of remedies of declaration and injunction as an alternative to judicial review in some cases has become well recognised.[6] Other jurisdictions have enacted codes relating to judicial review[7] where there is no distinction drawn between the basis for or the effect of the common law writs, and where any historic limitations on the operation of those writs ceases to have relevance. I acknowledge, however, that codes of that nature generally relate to review of administrative decisions.[4] Rule 98.01(3), Supreme Court Rules 1987; Rule 200(7) Supreme Court Civil Rules 2006.[5] Hall v City of Burnside(2006) 245 LSJS 440, [2006] SASC 283.[6] See for example Corporation of the City of Enfield v Development Assessment Commission (2000) 199 CLR 135 at 143-146, [2000] HCA 5 at [16]-[23]; Project Blue Sky Inc v Australian BroadcastingAuthority (1998) 194 CLR 355 at 393, [1998] HCA 28 at [100]; Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199 at 231-232, 240-241, [2001] HCA 63 at [60]-[62], [89]-[90].[7] For example Administrative Decisions (Judicial Review) Act 1977 (Cth). Given these developments, it is not surprising that areas of doubt in the applicability of the old common law writs might sensibly be resolved in favour of a general ability to correct errors founded on grounds which might generally and appropriately be grouped under headings of “illegality”, “irrationality” and “procedural impropriety”.[8] The latter heading clearly includes denial of procedural fairness, including apprehended bias, and fraud.[8] Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374 at 410 per Diplock L.

Ratio Decidendi

Legal Principle Established

Dr Churches, counsel for Mr Lymberopoulos, submits that there is only one issue to be addressed. It is whether an order in the nature of certiorari can be made to remedy breaches of applicable rules of natural justice. He submits that that question must be answered in the affirmative. He submits that an order in the nature of certiorari can be made to quash a decision of the Magistrates Court even though a failure to observe the requirements of procedural fairness does not amount to jurisdictional error.Consideration of submissions I have identified above the issues argued on appeal. It is convenient to consider the two questions posed by Mr Kourakis in his submissions. I proceed on the basis that the Magistrate failed to observe applicable requirements of procedural fairness. It is not necessary to examine the content of the requirements in the particular case, because it is common ground that the Magistrate failed to observe them. The application by Mr Lymberopoulos to the Court is brought under r 98 of the Supreme Court Rules 1987 (SA). Under r 98 the so-called “prerogative writs” are abolished, but in a case in which relief could have been granted by the issue of one of those writs the Court has jurisdiction to make an order in the nature of and having the effect of the remedy which would have been available under the writ. The jurisdiction that the Court exercises corresponds with the inherent jurisdiction of the English Courts at Westminster, because that is how the jurisdiction of the court is relevantly defined by s 17(2)(a) of the Supreme Court Act 1935 (SA). The scope of the Court’s jurisdiction is, subject to any applicable statute, to be determined by reference to the common law of Australia. In Craig v The State of South Australia the High Court described the jurisdiction of the Court as corresponding with “the Supreme Court’s previous inherent jurisdiction to order the issue of the prerogative writ of certiorari” (footnote omitted): at 174. The High Court said that the writ of certiorari could be directed to a court only if it was an inferior court: at 174. For present purposes the Magistrates Court can be regarded as such a court. The High Court then summarised the effect of an order in the nature of certiorari being made, and summarised the grounds upon which the order can be made. It did so in the passage from its reasons at 175-176 which is set out above. This Court is bound by that summary. In its reasons the High Court then turned to consider the nature of “jurisdictional error”. It did so in an extended passage, the gist of which appears from the following passage in Craig v The State of South Australia at 177:An inferior court falls into jurisdictional error if it mistakenly asserts or denies the existence of jurisdiction or if it misapprehends or disregards the nature or limits of its functions or powers in a case where it correctly recognises that jurisdiction does exist. Such jurisdictional error can infect either a positive act or a refusal or failure to act. Since certiorari goes only to quash a decision or order, an inferior court will fall into jurisdictional error for the purposes of the writ where it makes an order or decision (including an order or decision to the effect that it lacks, or refuses to exercise, jurisdiction) which is based upon a mistaken assumption or denial of jurisdiction or a misconception or disregard of the nature or limits of jurisdiction. The Court went on to make it plain that in relation to a court the concept of jurisdictional error is a relatively narrow one. Their Honours drew a distinction between an administrative tribunal and a court for these purposes. They said at 179-180:If such an administrative tribunal falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal's exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it. In contrast, the ordinary jurisdiction of a court of law encompasses authority to decide questions of law, as well as questions of fact, involved in matters which it has jurisdiction to determine. The identification of relevant issues, the formulation of relevant questions and the determination of what is and what is not relevant evidence are all routine steps in the discharge of that ordinary jurisdiction. Demonstrable mistake in the identification of such issues or the formulation of such questions will commonly involve error of law which may, if an appeal is available and is pursued, be corrected by an appellate court and, depending on the circumstances, found an order setting aside the order or decision of the inferior court. Such a mistake on the part of an inferior court entrusted with authority to identify, formulate and determine such issues and questions will not, however, ordinarily constitute jurisdictional error. Similarly, a failure by an inferior court to take into account some matter which it was, as a matter of law, required to take into account in determining a question within jurisdiction or reliance by such a court upon some irrelevant matter upon which it was, as a matter of law, not entitled to rely in determining such a question will not ordinarily involve jurisdictional error.