Re an Application Under the Magistrates Court Act 2004; Ex parte Bartholomew - [2008] WASC 52

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: RE AN APPLICATION UNDER THE MAGISTRATES COURT ACT 2004; EX PARTE BARTHOLOMEW [2008] WASC 52

CORAM: MURRAY J

HEARD: 6 MARCH 2008

DELIVERED : 10 APRIL 2008

FILE NO/S: CIV 1900 of 2007

MATTER :An Application under the Magistrates Court Act 2004, s 36 for a Review Order against Ms E D Campione, Stipendiary Magistrate of the Magistrates Court of Western Australia at Karratha

EX PARTE
NOEL JOHN BARTHOLOMEW
Applicant
AND
WAYNE ROBERT HENDRY
Respondent

Catchwords:

Administrative law - Review of magistrate's decision - Standing of applicant to seek review - Application for disclosure order refused - Consideration of when disclosure order should be made on a charge of a simple offence - Failure of magistrate to deal with application for disclosure - Powers of Supreme Court on review

Legislation:

Magistrates Court Act 2004 (WA), s 36
Criminal Procedure Act (WA), s 60(5)

Result:

No final order made
No order as to costs

Category: A

Representation:

Counsel:

Applicant: Mr J G Kitto
Respondent: Mr P D Lochore

Solicitors:

Applicant: Kitto & Kitto
Respondent: State Solicitor for Western Australia

Case(s) referred to in judgment(s):

Bridgetown/Greenbushes Friends of the Forest Inc v Executive Director, Department of Conservation and Land Management (1997) 18 WAR 126
Carcione Nominees Pty Ltd v Western Australian Planning Commission (2005) 30 WAR 97; [2005] WASCA 56
D v State of Western Australia [2007] WASCA 272
Grey v The Queen (2001) 75 ALJR 1708; [2001] HCA 65
Island Maritime Ltd v Filipowski (2006) 226 CLR 328; [2006] HCA 30
Mallard v The Queen (2005) 224 CLR 125; [2005] HCA 68
Re an Application under the Magistrates Court Act 2004; Ex parte Brecker [2007] WASC 151
Re an Application under the Magistrates Court Act 2004; Ex parte Snook (No 2) [2007] WASC 255
The King v War Pensions Entitlement Appeal Tribunal; Ex parte Bott (1933) 50 CLR 228
Thompson v Lane [2005] WASC 281
Western Australia v Christie (2005) 30 WAR 514; [2005] WASC 214

MURRAY J: Just before midnight on 15 June 2007, the applicant was driving a Toyota Landcruiser in Karratha, near the Karratha industrial estate. He was observed by police officers who suspected he was in possession of illicit drugs. They stopped the vehicle and searched it and the applicant. In his wallet and in the pocket of his jeans the applicant had a large amount of money. When counted, there was $8,088.60. When asked about it, the applicant said it was the proceeds of a car he had sold earlier that day, but he gave no information as to the identity of the purchaser. He had no transfer papers to support the transaction and provided no other particulars of it.
In the rear of the vehicle, in a pull‑out tool tray, was a silver throwing knife. When asked why he had it in his possession the applicant said, 'My missus likes to throw it.' The applicant was arrested. At the Karratha Police Station he declined a video interview.
He was charged on prosecution notice with five offences. I am told that three of them relate to the alleged possession of illicit drugs. The other two charges are presently relevant.
The first of them concerns the money allegedly found on the applicant's person. He is charged with being in possession of that money, which was reasonably suspected to have been unlawfully obtained, contrary to the Criminal Code (WA), s 428(1). This is a simple offence, and therefore to be dealt with summarily by the Magistrates Court. Section 428(2) provides that it is a defence to prove that at the time the accused was allegedly in possession of the property, he had no reasonable grounds to suspect that it was stolen or unlawfully obtained. The offence is punishable by imprisonment for 2 years and a fine of $24,000. So it is quite a serious summary offence.
The other offence which is presently relevant is that charged concerning the knife. The applicant was charged that, not being a person exempted under s 10 of the Weapons Act 1999 (WA) he possessed a controlled weapon without lawful excuse, contrary to s 7(1) of that Act. Again, that is a simple offence, but quite a serious one, punishable by a fine of $4,000 or imprisonment for a year. It is clear that none of the exceptions provided in s 10 could apply to this case. Depending upon the nature of the knife, it might be a 'controlled weapon' as defined in s 3 of the Weapons Act, because it might have been made or modified to be used to injure or disable, or be an article prescribed by the regulations.
The Weapons Regulations 1999, reg 5, prescribes, as controlled weapons, those things set out in Sch 2 to the Regulations. The Schedule includes some knives, things described as daggers, double‑end knives and throwing blades or knives, which are blades or knives made or modified to be thrown. This may be such a thing.
When the matter came on in the Karratha Magistrates Court, before her Honour Magistrate Campione, on 12 July 2007, the applicant was represented by counsel, Mr Kitto, who appeared by a telephone link. One of the charges of possession of illicit drugs was a charge of possession with intent to sell or supply, an indictable offence to be dealt with in the District Court. The proceedings were substantially concerned with the arrangements to deal with the drugs charges, to each of which the applicant pleaded guilty. He entered pleas of not guilty to the charges under the Criminal Code and the Weapons Act, and those matters were remanded to trial to 31 October 2007, with bail renewed.
Towards the end of the proceedings, defence counsel made application for disclosure by the prosecution in relation to the two matters for trial. When he was asked what grounds he had for that application, he appears to have answered that it was in the interests of justice that the defence should know what the prosecution case was. The police prosecutor opposed the application, saying that there had been disclosure in the form of a statement of material facts, a document prepared by the arresting officer which summarises the circumstances surrounding the offences charged. It is from that document that I have taken the brief factual account set out at the commencement of these reasons.
Her Honour the Magistrate then said that she was not persuaded to make an order for disclosure, but before she could elaborate upon that, she was interrupted by counsel who asked for the opportunity to present his submissions more fully. Those submissions were that the defence case could not be prepared properly without access to witness statements, which would give much more detail than had been provided in the brief summary contained in the statement of material facts. They would reveal what the arresting officers had done, and what had been said by the accused. In addition, counsel wished to see and have a photograph of the knife.
At the conclusion of those submissions, without again calling on the prosecutor, the Magistrate said:
The application for disclosure is refused. I am not satisfied on the basis of the submissions that have been put to me that it is necessary to order disclosure at this point in time. The fact that I have refused disclosure now does not preclude the defendant from making an application for disclosure in the future.
It is put to me for the applicant, of course, that the next occasion upon which the matter would come on for hearing in the Magistrates Court was to be the date fixed for the trial.
As it happens, those matters did not go to trial. They were discontinued by the prosecution under the Criminal Procedure Act2004 (WA), s 25(1). Under s 25(3), when a charge is discontinued, 'the court must dismiss the charge for want of prosecution'. It is clear that in those circumstances, fresh prosecution notices could be issued for the offences originally charged. In my opinion, the charges having been dismissed for want of prosecution, no acquittal, in circumstances which would support a plea of autrefois acquit under s 17 of the Criminal Code, would result. The applicant has never been in jeopardy of conviction: cf Island Maritime Ltd v Filipowski (2006) 226 CLR 328; [2006] HCA 30.
There being no special limitation period for the issue of a prosecution notice prescribed for either of these offences by the Criminal Code or the Weapons Act, the relevant limitation period is provided by s 21(2) of the Criminal Procedure Act which requires, unless otherwise provided, that a prosecution of a person for a simple offence is to be commenced within 12 months after the date on which the offence was allegedly committed, ie, by 15 June 2008.
Mr Kitto tells me that he has been informed by the Police Service that it is possible that either or both of the charges would again be laid, presumably after the completion of the proceedings in the District Court with respect to the drug matters, and if it was thought to be helpful to pursue convictions of these offences for purposes of punishment and/or to lay the ground for forfeiture applications with respect to the money and the knife.
The matter before me is an application to review the decision of her Honour the Magistrate under s 36 of the Magistrates Court Act 2004 (WA). Section 36(1) provides:
36.Supreme Court's powers to control Court
(1)If a person is or would be aggrieved by one or more of the following -
(a)the failure of a Court officer to do any act or make any order or direction -
(i)on the ground that the officer is under a duty to do the act or make the order or direction; or
(ii)on any ground that might have justified an order of mandamus;
(b)an act, order or direction that a Court officer proposes to do or make -
(i)on the ground that it would be without jurisdiction or power or would be an abuse of process; or
(ii)on any ground that might have justified an order of prohibition;
(c)an act, order or direction done or made by a Court officer -
(i)on the ground that it was done or made without jurisdiction or power or is an abuse of process; or
(ii)on any ground that might have justified an order of certiorari,
the person may apply to the Supreme Court for an order (a 'review order') that requires the Court officer and any person who will be affected by the act, order or direction to satisfy the Supreme Court at a hearing that the act, order or direction should or should not be done or made or set aside, as the case requires.
Under s 36(2), the procedure in relation to that application is that set out in the Rules of the Supreme Court, O 56A. Rule 2 provides for the application to be made ex parte. The procedure and the court's powers are set out in O 56A r 3. Pursuant to that provision, I made the review order and ordered that the review be heard inter partes before me. I required notice to be served on the Magistrate and the prosecutor. Her Honour the Magistrate later, and appropriately, filed a notice informing the court that she would abide its decision. No question arose, under s 36(5), that the ruling of her Honour refusing to order disclosure was appellable. The court's powers, on hearing the review, are those set out in s 36(4), which is in the following terms:
(4)If at the hearing required by a review order the Supreme Court is not satisfied in accordance with the review order, or if it is just to do so, it may -
(a)order that the act, order or direction be or not be done or made or set aside, as the case requires;
(b)grant any relief or remedy that could have been granted by way of a writ of mandamus, prohibition or certiorari;
(c)make any necessary consequential orders.
The Magistrates Court Act was proclaimed to come into operation on 1 May 2005 (Government Gazette 31 December 2004 p 7127). In the first matter to come before the court, Thompson v Lane [2005] WASC 281, which was heard and delivered in December 2005, Simmonds J noted that s 36 was clearly intended to take the place of the prerogative writs of mandamus, prohibition and certiorari which, by s 35, may not be directed to a court officer of the Magistrates Court. The term 'court officer' is defined by s 3 to mean a magistrate or other judicial officer.
In Re an Application under the Magistrates Court Act 2004; Ex parte Brecker [2007] WASC 151, Beech J, at [49], held that, consistently with the use of the word 'may' in s 36(4), the powers of this court to make final orders on the hearing of the review were discretionary. At [55], his Honour held that although the review order required the party to whom it was directed to satisfy the court, 'that the act, order or direction should or should not be done or made or set aside,' the onus of persuasion would lie upon the applicant for relief, the party moving the court to make an order under s 36(4).
In Re an Application under the Magistrates Court Act 2004; Ex parte Snook (No 2) [2007] WASC 255, Simmonds J, at [101], expressed the view that at least in a case of denial of natural justice, as was that case, the discretion within s 36(4) was in the nature of a discretion to refuse relief, upon good grounds.
It is useful, for present purposes, to come to a clear understanding about how s 36(1) and (4) are intended to operate. The provisions are difficult to read because the draftsman has collapsed into two subsections what, in my respectful view, might have been more clearly expressed at greater length in separate provisions.
One thing is clear. I respectfully agree that the section is designed to be a statutory process of review by the Supreme Court of the acts, orders and directions of the Magistrates Court and of the refusal of that court to perform an act, make an order, or give a direction, in proceedings before it. It is designed to replace the formerly available prerogative writs of mandamus, prohibition and certiorari, but s 36(1) is to be read on its own terms and it would be a mistake, in my opinion, to put s 36(1) into the framework of the grounds it would have been necessary to make out to obtain a formerly available form of prerogative relief. That is not to say that it will not be instructive to consider, on a review under s 36, whether the act done, order made, direction given or refusal to do any such thing of which complaint is made, is of a kind and in circumstances which would ground an order in the nature of mandamus, prohibition or certiorari. Section 36(1) makes that inquiry directly relevant to the exercise of the powers on review, in any event.
As to the operation of s 36(1), the first point to note is that the power to make an application to this court for a review order is one conferred upon a person who, 'is or would be aggrieved' by any one or more of the grounds for the review order provided in pars (a), (b) and (c). The Act, perhaps wisely, does not attempt to define the word 'aggrieved', but it must take its meaning from the context and having regard to the nature of the review procedure. It is interesting to note that it appears that standing is conferred upon a person who is not aggrieved, but 'would be'. Presumably that relates to a proposed act, order or direction under s 36(1)(b).
It seems to me that in the context of the section, the general concept of a person aggrieved who will therefore have standing to make an application for a review order, will be a person who has a sufficient interest because that person is, or the person's interests are, in some way, adversely affected or potentially adversely affected by the action of the Magistrates Court which that court has refused to do, proposes to do or has done. It will be a matter of judgment in a particular application where the issue is raised, as to whether the applicant should be afforded standing.
The development of a jurisprudence in this regard, particularly by the Federal Court in respect of the Administrative Decisions (Judicial Review) Act 1977 (Cth), seems to me to offer the most appropriate source of relevant authority. The Act confers standing upon 'persons aggrieved' and the definition, in s 3(4)(a)(i) includes, as such a person, a person whose interests are adversely affected by the decision sought to be reviewed: see the useful discussion in Judicial Review of Administrative Action, 3rd ed (2004) at 683 ‑ 6. I recognise that the approach to questions of standing to sue at common law may not, if the context of the proposed litigation justifies it in the interests of justice, produce a much different approach: cf Bridgetown/Greenbushes Friends of the Forest Inc v Executive Director, Department of Conservation and Land Management (1997) 18 WAR 126.
In this case, the respondent points to the fact that the prosecutions have been discontinued. He argues that a decision on this review would be necessarily moot and in the nature of an advisory opinion. Certainly the court will stop short of giving a decision which is of that nature. In Carcione Nominees Pty Ltd v Western Australian Planning Commission (2005) 30 WAR 97; [2005] WASCA 56 at 110 ‑ 111 [58] ‑ [66] and 120 [108], the Full Court refused prerogative relief in relation to departmental recommendations in respect of matters of town planning and a ministerial decision to approve those recommendations 'in principle' on the ground that they had no discernible effect on the rights or interests of any person.
However, in this case the applicant is the defendant to the discontinued prosecution notices and he proposes to defend any renewal of those notices, a course which, if not threatened by the respondent, is certainly not foreclosed and may still occur. In those circumstances, it seems to me that the applicant has a sufficient interest currently to seek a review of the adverse decision made by the magistrate upon his application for disclosure by the prosecution. The prosecutions are presently in limbo. They have not been finally determined. Their current state may clearly have an impact upon whether or not this court would make any final order upon the review, and if so, the terms in which such an order might be made. But I do not think I am entitled to say that the applicant lacks standing to seek a review order because he is not a person aggrieved by the refusal of the magistrate to order the disclosure he sought as at the date of the application for review, because he remains potentially a person whose interests may be adversely affected by the court's refusal to act.
Disclosure by the prosecution in respect of simple offences is dealt with in the Criminal Procedure Act 2004 (WA), s 60. Different regimes apply if the offence charged is an indictable offence that may be and is to be dealt with summarily, or is a simple offence. If the accused pleads not guilty, then different regimes apply in relation to a simple offence, depending upon whether it is a listed simple offence prescribed by the Criminal Procedure Regulations 2005, reg 12 and Sch 4 to those regulations. There are few such offences and those charged on this occasion are not among them. If the offence charged is an 'either way' charge to be dealt with summarily, or a listed simple offence, then there must be prosecution disclosure as required by the Criminal Procedure Act, s 61.
In the case of other simple offences, the matter is governed by s 60(5) which is in the following terms:
(5)In the case of a charge of any other simple offence, the court -
(a)may order the prosecutor to serve the accused with any confessional material (as defined in section 42(1)) of the accused that is relevant to the charge and that the accused has not already received from the prosecutor;
(b)if it makes an order under paragraph (a), may also order the prosecutor to comply with section 61; and
(c)in any event must adjourn the charge to a new court date that allows a reasonable time for the prosecutor to comply with any order made under paragraph (a) or (b).

It can be seen that there is a discretionary judgment to be made at two points. Firstly, as to whether or not confessional material, within the description in s 42(1), is to be served upon the accused, and secondly, if such an order is made, a further decision is to be made whether or not to order further disclosure of the type that was in issue before the magistrate here. Section 61(5) requires service upon the accused of confessional material, any evidentiary material relevant to the charge, a copy of the accused's criminal record and any other prescribed document. Under the section, if an order is made, the duty of disclosure is an ongoing one and will apply to material of the kind described by the section which is received or obtained by the prosecutor after the initial disclosure.
The Act provides no guidance to the court as to how those discretionary judgments are to be made, and I was informed that this court has provided no guidance to magistrates in that regard. I commence then by observing that, so far as I can see, the obligation to serve a statement of material facts upon the accused arises under s 35(4)(a) of the Criminal Procedure Act when the prosecution notice served on the accused contains one or more indictable charges. That was the case here, hence the statement of material facts to which I have referred. Under s 35(5), if the prosecution notice charges one or more prescribed simple offences, then a statement of material facts must be served. That was not the case here. In either case, it is the material facts of each indictable charge or charge of a prescribed simple offence which must be disclosed in the statement.
This case reveals, however, that the practice would seem to be wider and the statement of material facts may cover unlisted simple offences such as in this case, at least where it is otherwise required to be provided. But however that may be, the Criminal Procedure Act contains an elaborate series of provisions in relation to the disclosure of primary confessional or evidentiary material and other documentary material described by the relevant provisions of the Act, over and above the statement of material facts, which the Criminal Procedure Act appears to recognise is merely a convenient summary which may assist a decision as to plea and will inform the accused of the facts which will be presented to the court for sentencing purposes after conviction upon a plea of guilty.
Ordinarily then, while it may be relevant in making the discretionary judgment required of the court by s 60(5) that a statement of material facts has been served, it will be no substitute for further disclosure of the materials required by the Act where the interests of justice would otherwise seem to require such disclosure.
The Criminal Procedure Act gives a detailed description in s 42(1) of what must be disclosed when disclosure is to take place. The terms 'confessional material' and 'evidentiary material' relevant to a charge are defined. In addition, as has been noted, s 61(5) refers to a copy of the accused's criminal record and any prescribed document. So the question will not be what should be ordered to be disclosed, but when and in what circumstances should an order be made.
It may be trite to observe that an order requiring disclosure by the prosecution should be made when, in the interests of justice, it appears to be necessary to secure a fair trial to the accused, including not only cases where it appears to be necessary to that end to expose the evidence of prosecution witnesses to the accused, but also where the prosecution has in its possession material which may bear adversely upon the credit or reliability of a proposed prosecution witness.
At least that will be the case where there are not countervailing factors such as undue difficulty or the impracticality of making an order for disclosure in relation to particular evidence, or where the life or safety of a potential witness may be endangered by disclosure, or some other exceptional circumstance indicates that the accused's interest in knowing the case against him or her is overridden by the consideration that pre‑trial disclosure may undermine the administration of justice. The fairness of the trial process cuts both ways and may involve the court in balancing competing interests.
As a statement of general principle, that seems to me to be consistent with the common law duty of disclosure: Grey v The Queen (2001) 75 ALJR 1708; [2001] HCA 65, Mallard v The Queen (2005) 224 CLR 125; [2005] HCA 68 per Gummow, Hayne, Callinan and Heydon JJ at 133 [17], and at rather more length, Kirby J at 155 ‑ 156 [81] ‑ [84].
These principles have been applied in this court, eg, the recent decision of D v State of Western Australia [2007] WASCA 272 by Buss JA at [4] and Le Miere AJA, with whom Miller JA agreed, at [30] ‑ [32].
After considering relevant authority and including in his consideration the question of public interest immunity, one of the countervailing factors which might impinge upon the making of an order for disclosure and its content, McKechnie J in Western Australia v Christie (2005) 30 WAR 514; [2005] WASC 214, at 519 ‑ 520 [22] ‑ [23], said:
As I read the authorities to which I have made reference, and the Criminal Procedure Act, there is to be discerned a general intention that in order to ensure a fair trial, the State has an obligation to ensure that the fruits of an investigation are in general terms made available to the defence. There seems to remain, however, two qualifications to that broad-ranging and general duty. The first qualification is that, at least in matters which are not specifically enumerated within the Criminal Procedure Act as evidentiary material or confessional material, there is an onus on the defence to show some legitimate forensic purpose in the disclosure of the material; that is, a reasonable possibility that production will materially assist the defence. The second qualification is that even if there is shown to be a legitimate forensic purpose, the material may nevertheless be prevented from disclosure on the grounds of a public interest immunity. Such an immunity, of course, requires a balance to be made as to the differing community interests, on the one hand, in ensuring a fair trial and, on the other hand, in preventing disclosure of certain police techniques and methods, of a covert nature, which, if they became generally known, would impact upon the ability of the Police Service to control crime.
In exercising judgment in a particular case, it should be recognised that the Court has within its power the ability to limit disclosure to certain persons, including legal practitioners. This power may on occasions inform the judgment to be made on the competing claims of the public interest immunity. Legal practitioners are officers of the Court and owe a duty to respect not only the confidences of their clients but also any confidences the Court may impose.
It would not be useful for this court to be too prescriptive in relation to disclosure beyond the statement of general principle that in the exercise of the discretion conferred by s 60(5) of the Criminal Procedure Act the court ought to order disclosure where it appears that the interests of justice in securing a fair trial require disclosure, in respect of which there is no countervailing consideration which demonstrates that the interests of justice in the case, properly appreciated, require the achievement of full disclosure to be put to one side, having regard to such matters as whether disclosure would impede an ongoing police investigation or police investigation generally, or may cause harm if the identity of a witness is revealed or publicity is given to a matter, or some consideration of that kind is established.
As to whether, in the absence of a countervailing factor of that kind, disclosure should be ordered, the court ought to lean towards doing so, at least in a case where an offence of some real seriousness is alleged which might result in imprisonment by way of punishment, which might result in the forfeiture or loss of property or the loss of some licence or authority. Certainly disclosure would be indicated if the facts known to the court suggest a need for the accused to have access to the full evidentiary picture upon which the prosecution proposes to rely, such as where the accused may be disadvantaged if he does not have access pre‑trial to some expert report or certificate, photographs and the like.
In this case, the statement of material facts in respect of both offences presented the barest summary, but in any event its adequacy to inform the applicant of the nature of the case he must meet was not considered by her Honour the Magistrate.
As to the possession of the money, it might have been important to know the full circumstances to determine whether it might be established, beyond reasonable doubt, that it might reasonably be suspected of having been unlawfully obtained. The full detail of what the accused said at the time and the explanation he gave would be of value in assessing the strength of the prosecution case and whether it might be the case that the circumstances in which the money had been acquired by the applicant might, consistently with what had been said to the police, raise a defence under s 428(2) of the Code.
As to the alleged possession of the knife, it would be relevant to a proper preparation of the case and the evaluation of the strength of the prosecution case, to know precisely where the prosecution would say it was found, and again, it would be important to know what the accused said to the police about the knife, in detail, so that consideration might be given to whether there was a capacity to challenge the proposition that the accused was in possession of the weapon. Further, counsel would clearly benefit from seeing the weapon, or photographs of it, so that an assessment could be made whether there was an argument to be presented that it was not, in fact, a controlled weapon within the meaning of the legislation.
There was no suggestion that there was any particular reason of the kind to which I have referred above which might negate the proposition that disclosure should be ordered. The prosecutor merely submitted that disclosure was not required in every case for simple offences, and if disclosure was required that would increase 'police workload'. In my respectful opinion, a proper exercise of discretion in this case would have resulted in a disclosure order and her Honour erred in failing to make that order.
Further, there is a clear indication, in my opinion, that her Honour did not, in truth, exercise the discretion reposed in her by s 60(5) of the Criminal Procedure Act. Her remarks at the time reveal that she did not weigh the considerations which bore on the question posed to her. She expressed the view that disclosure was not necessary at that time, and observed that an application could be made later. What might then be different, which might lead her Honour to a more favourable consideration of an application for disclosure, does not emerge.
It would not matter if the applicant might have sought to have the disclosure voluntarily made rather than make an application to the court, but in any event the opposition to the application by the prosecutor suggested that any such approach was unlikely to succeed. In my view, the proper conclusion is that her Honour simply failed to consider the merits of the application made to her, and in that respect also, in my respectful view, she fell into error.
What then is the position now, upon this review? The application made shows that the applicant relies upon the failure of the magistrate to act so as to make an order under s 60(5) of the Criminal Procedure Act. Reliance is placed upon s 36(1)(a). It is alleged that her Honour was under a duty to make the order and that there is a ground which would justify an order in the nature of mandamus. It is open, I think, to the applicant to argue the review in that way. The making of the review order does not foreclose the debate as to whether any of the matters in pars (a), (b) or (c) of s 36(1) of the Magistrate Court Act may be established. The review order is made upon the basis that such a case for a final order under s 36(4), may be made out.
In my opinion, the question whether the magistrate was under a duty to make the order sought, or whether there is a ground for an order in the nature of mandamus, are questions of the same character, at least in the circumstances of this case. In relation to mandamus, in the leading case of The King v War Pensions Entitlement Appeal Tribunal; Ex parte Bott (1933) 50 CLR 228 at 242 ‑ 243, Rich, Dixon and McTiernan JJ said:
A writ of mandamus does not issue except to command the fulfilment of some duty of a public nature which remains unperformed. If the person under the duty professes to perform it, but what he actually does amounts in law to no performance because he has misconceived his duty or, in the course of attempting to discharge it, has failed to comply with some requirement essential to its valid or effectual performance, he may be commanded by the writ to execute his function according to law de novo, at any rate if a sufficient demand or request to do so has been made upon him.
As to a tribunal which has embarked upon an inquiry imposed upon it by law and has announced a conclusion, their Honours went on to observe that what must be shown is that the 'ostensible determination is not a real performance of the duty imposed by law upon the tribunal', because it has misconceived the question, or not applied itself to it, or acted upon some extraneous consideration, but, they added:
the prosecutor [seeking a writ of mandamus] who undertakes to establish that the tribunal has so acted ought not to be permitted under cover of doing so to enter upon an examination of the correctness of the tribunal's decision, … . The correctness or incorrectness of the decision reached by the tribunal is entirely beside the question whether a writ of mandamus lies.
Those statements of principle are apposite in this case. The magistrate was under a duty to hear the application for the disclosure order, to properly consider and weigh the considerations relevant to the discretionary judgment to grant or refuse the order and to make that decision. Although I think that her Honour erred in not making the order, she was under no duty to do so. However, she did fail to properly embark upon and determine the application before her. She merely said that she was not satisfied that it was necessary to order disclosure at that point in time, when the question whether the application was made prematurely was not raised or debated before her.
The ground for this court to make an order under s 36(4) of the Magistrates Court Act is made out. But I return to the way in which s 36(4) is expressed. In my view, it completely sets out the choices which lie before this court, whether the applicant, upon the review, fails to make good a ground under s 36(1) or whether he succeeds in that regard. An order is to be made under s 36(4) if this court, 'is not satisfied in accordance with the review order, or if it is just to do so'.
I have concluded that a ground for review is made out. The question then is what order should now be made because it is just to do so. On the view I take, I might, I think, under s 36(4)(a) or (b), make an order directing the magistrate to perform the duty of giving proper consideration to the application before her. I may not, I think, order her Honour to determine that application in a particular way and make the disclosure order. That would not, within the meaning of s 36(4)(c), be a necessary consequential order nor, more fundamentally, would it be an order which, in the relevant sense, her Honour was under a duty to make.
In my view, it would not be just, on this review, to make the order which, under s 36(4), I might make, together with any consequential orders directed to securing the rehearing of the application for a disclosure order. The present state of proceedings upon the relevant charges makes unnecessary the making of any such order. The application for disclosure may again be made if, by fresh prosecution notices, the charges laid, or either of them, are reactivated. It would seem, having regard to the way in which s 36(4) is worded, and my views, that I should, on this review, order that there be no order as sought by the applicant.
I will hear the parties, if required, in relation to costs, including those of the preliminary hearing which I reserved. My present inclination is to make no order as to costs, and if no order is sought the review need not be listed for further hearing.