Re Magistrate R Bromfield; Ex parte Caratti
[2016] WASC 147
•13 MAY 2016
RE MAGISTRATE R BROMFIELD; EX PARTE CARATTI [2016] WASC 147
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2016] WASC 147 | |
| Case No: | CIV:1468/2016 | 28 APRIL 2016 | |
| Coram: | LE MIERE J | 13/05/16 | |
| 18 | Judgment Part: | 1 of 1 | |
| Result: | Decision of magistrate set aside | ||
| A | |||
| PDF Version |
| Parties: | ALLEN BRUCE CARATTI JULIE EIFFLER |
Catchwords: | Judicial review Magistrates Court Act 2004 (WA) Not failure of duty to make order where order made involving error of law Turns on own facts Judicial review Magistrates Courts Act 2004 (WA) Orders made in breach of limits of power Jurisdictional error Error of law Turns on own facts |
Legislation: | Criminal Appeals Act 2004 (WA) Evidence Act 1905 (NSW) Income Tax Assessment Act 1936 (Cth), s 264 Magistrates Court Act 2004 (WA), s 36 Occupational Health and Safety Act 1983 (NSW) Taxation Administration Act 1936 (Cth), s 8C |
Case References: | Craig v State of South Australia [1995] HCA 58; (1995) 184 CLR 163 Ex Parte Savage and Savage [1989] WAR 46 Jackson v Chrisp [2013] WASC 380 Kirk v Industrial Court of New South Wales [2010] HCA 1; (2010) 239 CLR 531 Rayney v AW [2009] WASCA 203 Re Refugee Review Tribunal; Ex Parte Aala [2000] HCA 57; (2000) 204 CLR 82 Re State Administrative Tribunal; Ex Parte McCourt [2007] WASCA 125; (2007) 34 WAR 342 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CIVIL
ALLEN BRUCE CARATTI
Applicant
JULIE EIFFLER
Third Party
Catchwords:
Judicial review - Magistrates Court Act 2004 (WA) - Not failure of duty to make order where order made involving error of law - Turns on own facts
Judicial review - Magistrates Courts Act 2004 (WA) - Orders made in breach of limits of power - Jurisdictional error - Error of law - Turns on own facts
Legislation:
Criminal Appeals Act 2004 (WA)
Evidence Act 1905 (NSW)
Income Tax Assessment Act 1936 (Cth), s 264
Magistrates Court Act 2004 (WA), s 36
Occupational Health and Safety Act 1983 (NSW)
Taxation Administration Act 1936 (Cth), s 8C
Result:
Decision of magistrate set aside
Category: A
Representation:
Counsel:
Applicant : Mr P K Bruckner & Mr W R H Johnson
Third Party : Mr M N Blandford
Solicitors:
Applicant : Wilson & Atkinson
Third Party : Director of Public Prosecutions (Cth)
Case(s) referred to in judgment(s):
Craig v State of South Australia [1995] HCA 58; (1995) 184 CLR 163
Ex Parte Savage and Savage [1989] WAR 46
Jackson v Chrisp [2013] WASC 380
Kirk v Industrial Court of New South Wales [2010] HCA 1; (2010) 239 CLR 531
Rayney v AW [2009] WASCA 203
Re Refugee Review Tribunal; Ex Parte Aala [2000] HCA 57; (2000) 204 CLR 82
Re State Administrative Tribunal; Ex Parte McCourt [2007] WASCA 125; (2007) 34 WAR 342
- LE MIERE J:
Summary
1 The applicant was required by the Commissioner of Taxation (Commissioner) by a notice (Notice) to furnish information and produce documents described in the Notice within the time provided by the Notice. The applicant was subsequently convicted in the Magistrates Court of Western Australia that he failed to furnish the information and failed to produce the documents to the Commissioner when and as required pursuant to s 264 of the Income Tax Assessment Act 1936 (Cth) (ITAA) contrary to s 8C(1)(a) and s 8C(1)(c) of the Taxation Administration Act 1953 (Cth) (TAA). The Magistrate fined the applicant $1,000 on the first charge and $2,000 on the second charge and ordered that the applicant comply with the Notice by providing to the Commissioner the information and documents required by the Notice within one month.
2 The applicant has applied to this court for orders under s 36 of the Magistrates Court Act 2004 (WA) setting aside his convictions and dismissing the charges which gave rise to them or alternatively remitting the matters to the Magistrates Court to be determined according to law. In the further alternative the applicant seeks an order that his application be treated as if it were an appeal under the Criminal Appeals Act 2004 (WA) and be dealt with accordingly.
3 The applicant has made out grounds for relief under s 36(4) of the Magistrates Court Act. The appropriate relief is that the orders of the magistrate fining the applicant and ordering him to comply with the requirement to produce to the Commissioner within one month the documents described in the Notice be set aside. It is not appropriate to order that the applicant be acquitted of the charges giving rise to the magistrate's order or that those charges be dismissed. It is not appropriate that the court order the application to be treated as if it were an appeal under the Criminal Appeals Act.
The prosecution case in the Magistrates Court
4 The Notice required the applicant to provide information and documents in regards to Mammoth Nominees Pty Ltd by 17 October 2012. The documents were MYOB and Quick Books data files containing transactions for the 2010, 2011 and 2012 financial years. The information was MYOB version numbers used by Mammoth Nominees during the periods and relevant user names and passwords to access the data files. The applicant did not provide the documents or information in the period specified.
5 As a result of formal admissions made by the applicant the issues at trial were limited to whether the applicant refused or failed to comply with the Notice, whether the applicant was capable of complying with the Notice and whether a reasonable time was provided for him to comply with the Notice.
The defence case before the Magistrate
6 The applicant is a director of approximately 80 companies which hold land or are involved in the land development business. He says the documentation involved is vast. In July 2012 an earlier notice had been served in relation to Mammoth Nominees which gave notice of an access visit and subsequently ATO officers came onto the premises and inspected records themselves. That took place over about a two week period.
7 When the Notice was served there were difficulties. All the hardcopy documents had been taken as part of the July visit. The accountant employed by the applicant had ceased employment. There had been two server crashes in February and May 2012 which the applicant says affected a lot of the material the ATO officers were looking for. The Notice gave the applicant effectively 13 working days to comply.
8 The case for the applicant was that he did not have access to the electronic files during the period of the Notice either because they did not exist in his custody or control during the relevant period or if they did exist during the Notice period it was effectively impossible to comply within the Notice period or alternatively unreasonable to require compliance within the Notice period, due to the technical work required to retrieve the data following the crash and unavailability of technical expertise to retrieve the data.
Evidence
9 The magistrate received in evidence the Notice and other documents tendered by the prosecutor. The prosecutor relied upon the averments to the prosecution notice. The prosecutor called evidence from four ATO officers concerning the circumstances surrounding and leading up to the applicant not providing the documents and information requested in the Notice. The defence led evidence from the applicant's former accountant. The applicant did not himself give evidence.
Magistrates' reasons for decision
10 The magistrate found that the applicant was guilty of the offences with which he was charged for the following reasons. The first issue is whether the applicant had access to the information and documents he was required to provide by the Notice, that is whether the files were in existence and available to be produced by the applicant. The applicant did not present evidence to discharge the evidentiary burden that he did not have access to the information and documents. Therefore it is equally probable that the applicant had access to the information and documents.
11 The second issue is whether it was effectively impossible for the applicant to comply within the Notice period or alternatively unreasonable to require compliance within the Notice period. The evidence from the prosecution shows that the task of providing the information is not a time consuming task. It is simply a task of copying electronically a file and it would only take a matter of minutes. The period of notice was reasonable.
12 The magistrate found for those reasons:
The prosecution - consistent with the prima facie evidence provisions based on the events - have established to the criminal standard of persuasion that [the applicant] was guilty beyond reasonable doubt and that [the applicant] has not discharged the evidentiary burden that falls upon him for the purpose of s 8C(1B).
The alleged error by the magistrate
13 The applicant submits that he did not bear an evidential onus that he did not fail to furnish information or produce documents in his custody or control as alleged by the prosecution. The applicant submits that the prosecution bore the onus to prove that the electronic files not produced by the applicant during the period to which the Notice related were in existence and in the custody or under the control of the applicant during that period. The magistrate's finding that it is equally probable that the applicant had access to the information shows that the prosecution did not discharge that onus. Therefore, the magistrate should have ordered that the applicant be acquitted of the charges.
Magistrate's decision based on an error of law
14 The applicant was convicted of offences under TAA s 8C(1)(a) and (e). The elements of the offences are:
i. The applicant was required under or pursuant to a taxation law to give the information and produce the documents to the Commissioner; and
ii. The applicant failed when and as required to do so.
- A person does not commit an offence of refusing or failing, when and as required, under or pursuant to a taxation law to give information or produce documents to the Commissioner to the extent that the person is not capable of doing so: TAA s 8C(1B). A defendant bears an evidential burden of adducing or pointing to evidence that he or she is not capable of giving the information or producing the documents when and as required to do so. However, the prosecution bears the legal burden of proving that the defendant failed, when and as required to do so, to give the information and produce the documents to the Commissioner.
15 The magistrate found that 'it's equally probable that the company had access to the information requested and therefore the accused, being the sole director, has been shown to have access to that information'. The magistrate did not clearly express his finding. However, it appears that the magistrate found that the probabilities that the applicant had access to the information requested and that he did not have access to the information requested were equal. In those circumstances the prosecution did not discharge its onus of proving that the applicant failed when and as required to do so to give the requested information and documents to the Commissioner. If it is equally probable that the applicant did not have access to the information and documents then the prosecution has failed to prove that the applicant is guilty of the offence. The evidence had to do more than give rise to conflicting inferences of equal degrees of probability. The magistrate erred in finding that the prosecution has established beyond reasonable doubt that the applicant was guilty. That was an error of law because the magistrate found the applicant guilty when he had found that the evidence gave rise to no more than inferences of equal probability that one element of the charges was made out.
Magistrates Court Act s 36
16 Section 36(1) of the Magistrates Court Act provides that a person aggrieved by an act, order or direction of a court officer, which means a magistrate, registrar or a justice of the peace constituting a court, may apply to this court for an order (a review order) that requires the court officer and any person affected by the act, order or direction to satisfy this court that the act, order or direction should or should not be done or made or set aside as the case requires. Section 36(4) provides that at the hearing required by the review order the court may: order that the act, order or direction be or not be done or made or set aside as the case requires, grant any relief or remedy that could have been granted by way of a writ of mandamus, prohibition or certiorari, or make any necessary consequential orders. The power to make a review order under s 36(1) and the power to grant relief under s 36(4) is only enlivened if one or more of the grounds listed in s 36(1)(a), (b) or (c) has been established: Rayney v AW [2009] WASCA 203 [27], [28] (McLure JA, Buss & Newnes JJA agreeing).
17 Section 36 provides for a two stage process. First, if the applicant makes out an arguable case that one or more of the grounds listed in s 36(1)(a), (b) or (c) has been established the court may grant a review order requiring the court officer and affected person to satisfy the 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. Secondly, at the hearing required by the review order the court may grant the relief set out in s 36(4)(a), (b) or (c) if it is satisfied that one or more of the grounds listed in s 36(1)(a), (b) or (c) has been established. In this case the person affected by the order of the magistrate, the prosecutor, appeared at the hearing of the application and the applicant and the prosecutor agreed that the application for a review order and for relief under s 36(4) should be heard together. I proceeded to hear the matter on that basis.
18 Section 36(5) provides that if it considers that an appeal lies under the Criminal Appeals Act in respect of the act, order or direction, the court may order the application to be treated as if it were such an appeal and deal with the matter accordingly. The prosecutor submitted that the court should not treat the application as if it were an appeal under the Criminal Appeals Act and further submitted that if the court ordered that it should be so treated the court should order that the appeal be heard at a subsequent hearing so that the prosecutor may have the opportunity to lead additional evidence or to submit that even if a ground of appeal might be decided in favour of the applicant the court should dismiss the appeal on the ground that no substantial miscarriage of justice has occurred. With the concurrence of the parties I proceeded on the basis that if the court considers that in the exercise of its discretion the application should be treated as if it were an appeal the court would not proceed to deal with the appeal because the prosecutor had not had a fair opportunity to consider whether it would wish to lead additional evidence or rely upon the no substantial miscarriage of justice proviso but would direct that the appeal be heard and determined at a subsequent hearing.
The grounds under s 36(1)(a), (b) and (c)
19 The applicant submitted that grounds (a) and (c) in s 36(1) of the Magistrates Court Act apply in this case. Those grounds are:
(a) the failure of a court officer to do any act or to 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;
…
(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.
20 The applicant submitted that having found that the probabilities that the applicant had access to the information and documents required by the Notice and that he did not have the necessary access were equal, the duty of the magistrate was to dismiss the charges against the applicant and enter a verdict of acquittal. Therefore, the applicant submits, the ground in s 36(1)(a)(i) is made out.
21 I do not agree. Section 36 is a judicial review power. The purpose of s 36 is to replace, and provide a statutory alternative to, the common law relating to the judicial review of the acts or omissions of officers of the court. The intention is to permit judicial review in those situations in which the specified prerogative writs would have been available but also to free the courts from the technical requirements associated with those ancient remedies: Rayney v AW [27]. Paragraphs (a), (b) and (c) of s 36(1) correspond to the grounds on which the prerogative writs of mandamus, prohibition and certiorari respectively may have been granted, although the grounds in pars (a), (b) and (c) are arguably wider than those on which the corresponding prerogative writ might issue. The failure of a court officer to do any act or make any order or direction may include a constructive failure to do the act or make any order or direction but it does not extend to the situation where the court officer makes an order which involves an error of law. In this case, the duty of the magistrate was to hear and determine the charge. The magistrate did so and made an order. The order may involve an error of law but the magistrate did not fail in his duty to make an order merely because the order involves an error of law.
Grounds under s 36(1)(c)
22 The grounds under s 36(1)(c) are that the applicant is aggrieved by an act, order or direction done or made by a court officer on the grounds that it was done or made without jurisdiction or power or is an abuse of process or on any ground that might have justified an order of certiorari. The magistrate did not make the order of conviction and impose sentence without jurisdiction or power. The offences were punishable on summary conviction. The magistrate had authority to hear and deal with any case that is to be dealt with by a court of summary jurisdiction. The court, in exercising its jurisdiction, is to decide all questions of fact and law: Magistrates Court Act s 12.
23 The applicant does not claim that the act or order of the magistrate is an abuse of process.
Magistrate made an error that might have justified an order of certiorari
24 The applicant submits that the magistrate's error was a jurisdictional error that might have justified an order for certiorari. Certiorari is a process by which a superior court, in the exercise of original jurisdiction, supervises the acts of an inferior court or tribunal. It is not an appellate procedure enabling either a general review of the order or decision of the inferior court or a substitution of the order or decision which the superior court thinks should have been made. Where the writ runs it merely enables the quashing of the impugned order or decision upon one or more of a number of distinct, established grounds, most importantly, jurisdictional error, failure to observe some applicable requirement of procedure fairness, fraud and error of law in the face of the record: Craig v State of South Australia [1995] HCA 58; (1995) 184 CLR 163, 175 - 176.
25 In Craig the High Court said:
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.
Jurisdictional error is at its most obvious where the inferior court purports to act wholly or partly outside the general area of its jurisdiction in the sense of entertaining a matter or making a decision or order of a kind which wholly or partly lies outside the theoretical limits of its functions and powers. An inferior court would, for example, act wholly outside the general area of its jurisdiction in that sense if, having jurisdiction strictly limited to civil matters, it purported to hear and determine a criminal charge. Such a court would act partly outside the general area of its jurisdiction if, in a matter coming within the categories of civil cases which it had authority to hear and determine, it purported to make an order of a kind which it lacked power to make, such as an order for specific performance of a contract when its remedial powers were strictly limited to awarding damages for breach. Less obviously, an inferior court can, while acting wholly within the general area of its jurisdiction, fall into jurisdictional error by doing something which it lacks authority to do. If, for example, it is an essential condition of the existence of jurisdiction with respect to a particular matter that a certain event or requirement has in fact occurred or been satisfied, as distinct from the inferior court's own conclusion that it has, there will be jurisdictional error if the court or tribunal purports to act in circumstances where that event has not in fact occurred or that requirement has not in fact been satisfied even though the matter is the kind of matter which the court has jurisdiction to entertain. Similarly, jurisdictional error will occur where an inferior court disregards or takes account of some matter in circumstances where the statute or other instrument establishing it and conferring its jurisdiction requires that that particular matter be taken into account or ignored as a pre-condition of the existence of any authority to make an order or decision in the circumstances of the particular case. Again, an inferior court will exceed its authority and fall into jurisdictional error if it misconstrues that statute or other instrument and thereby misconceives the nature of the function which it is performing or the extent of its powers in the circumstances of the particular case. In the last-mentioned category of case, the line between jurisdictional error and mere error in the exercise of jurisdiction may be particularly difficult to discern.
26 In Re State Administrative Tribunal; Ex Parte McCourt [2007] WASCA 125; (2007) 34 WAR 342 the Court of Appeal said:
In Re Carey; Ex parte Exclude Holdings Pty Ltd (2006) 32 WAR 501 Martin CJ (with whom Wheeler JA and, relevantly, McLure JA agreed at [143] and [158] respectively), having considered the relevant provisions of the SAT Act, concluded (at [110]) that the Administrative Tribunal "was … given jurisdiction to determine questions of law wrongly, and that error of law would not, of itself, take … [it] outside jurisdiction". There is no challenge to the correctness of that decision. It is common cause that, in determining the scope of jurisdictional error, the test to be applied in this case is the same as that which is ordinarily applied in the case of an inferior court.
There will consequently be a jurisdictional error only if the Administrative Tribunal makes a decision outside the limits of the functions and powers conferred on it, or if it does something which it lacks power to do: Re Refugee Review Tribunal; Ex Parte Aala (2000) 204 CLR 82 at [163] per Hayne J. There will be no jurisdictional error if all that the Tribunal has done is to decide something, which it is authorised to decide, incorrectly. In Craig at 177 - 178, the High Court identified five categories of jurisdictional error in this narrower sense. These are not exhaustive: Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at [82] per McHugh, Gummow and Hayne JJ. They are conveniently summarised by McLure JA in Carey (at [181]) as follows:
First, if an inferior court or an anomalous tribunal mistakenly asserts or denies the existence of jurisdiction. Second, 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. Third, if it is an essential condition of the exercise of jurisdiction with respect to a particular matter that a certain event or requirement has in fact occurred or been satisfied (which I understand to be a reference to a jurisdictional 'fact') there will be jurisdictional error if the court or a tribunal purports to act in circumstances where that event has not in fact occurred or that requirement has not in fact been satisfied even though the matter is the kind of matter which the Court has jurisdiction to entertain. Fourth, jurisdictional error will occur where an inferior court disregards or takes account of some matter in circumstances where the statute establishing it and conferring its jurisdiction requires that that particular matter be taken into account or ignored as a precondition of the existence of any authority to make an order or decision in the circumstances of the case. Fifth, it will exceed its authority and fall into jurisdictional error if it misconstrues the statute establishing it and conferring jurisdiction and thereby misconceives the nature or the function which it is performing or the extent of its powers in the circumstances of the case. [15] - [16]
28 The plurality at [53] said that whilst some departures from the rules of evidence ought not warrant the grant of relief in the nature of certiorari, the departure from the rules of evidence in this case was substantial. At [66] the plurality said that in Craig the High Court recognised the difficulty of distinguishing between jurisdictional and non-jurisdictional errors but maintained the distinction. Their Honours referred to the following passage in Re Refugee Review Tribunal; Ex Parte Aala [2000] HCA 57; (2000) 204 CLR 82:
The difficulty of drawing a bright line between jurisdictional error and error in the exercise of jurisdiction should not be permitted, however, to obscure the difference that is illustrated by considering clear cases of each species of error. There is a jurisdictional error if the decision-maker makes a decision outside the limits of the functions and powers conferred on him or her, or does something which he or she lacks power to do. By contrast, incorrectly deciding something which the decision-maker is authorised to decide is an error within jurisdiction. (This is sometimes described as authority to go wrong, that is, to decide matters within jurisdiction incorrectly). The former kind of error concerns departures from limits upon the exercise of power. The latter does not.
- Their Honours referred to the passage from Craig which I have set out above in which the High Court gave a general description of what is jurisdictional error by an inferior court. However, their Honours said at [73] that it is important to recognise that the reasoning in Craig is not to be seen as providing a rigid taxonomy of jurisdictional error. The examples given in explanation of the ambit of jurisdictional error by an inferior court are just examples and are not to be taken as marking the boundaries of the relevant field. Their Honours held that the error made by the Industrial Court was jurisdictional. Their Honours said:
The Industrial Court misapprehended a limit on its powers by permitting the prosecution to call Mr Kirk at the trial. The Industrial Court's power to try charges of criminal offences was limited to trying the charges applying the laws of evidence. The laws of evidence permit many forms of departure from the rules that are stated. Many, perhaps most, departures from the strict rules of evidence can be seen as agreed to by parties at least implicitly. But calling the accused as a witness for the prosecution is not permitted, even if the accused consents to that course. The joint trial of Mr Kirk and the Kirk company was not a trial conducted in accordance with the laws of evidence. The Industrial Court thus conducted the trial of Mr Kirk and the Kirk company in breach of the limits on its power to try charges for a criminal offence [76].
The law required the hearing to be conducted in accordance with the rules of evidence … In defiance of the prohibition in s 17(2) of the Evidence Act the prosecution called Mr Kirk as its own witness in a criminal case. … It was a jurisdictional error. The trial judge had jurisdiction to decide whether to fine the appellant's after a trial conducted in accordance with the rules of evidence. He did not have jurisdiction to decide whether to fine the appellants after a trial which was not conducted in accordance with the rules of evidence … Will every error in applying those of the numerous rules of evidence which cannot be dispensed with pursuant to the fairly strict requirements of s 190 or bypassed by agreeing facts pursuant to s 191 or outflanked by making admissions be a jurisdictional error? That question should be reserved for consideration from case to case. It is possible that there may be instances of failure to comply with the rules of evidence which are of insufficient significance to cause the court making them to move outside jurisdiction. It is also possible, as the majority suggest, that even insignificant failures would be jurisdictional errors, but not jurisdictional errors of a type justifying the exercise of an appellate court's discretion in favour of granting relief.
But the error involved here in the prosecution calling a personal defendant as its witness to give a substantial quantity of testimony is within neither of these two categories. On any view it was a jurisdictional error, and there was no discretionary reason for refusing relief [114] - [115].
30 An inferior court which misapprehends a limit on its powers or conducts a trial in breach of the limits on its power commits a jurisdictional error. The magistrate was obliged to conduct the trial in accordance with the law which required him to find the offences proved only if the prosecution proved each element of the offence beyond reasonable doubt. The magistrate found the applicant guilty of the offences charged when he had found that in relation to one element of the charges that it was only equally probable that the element was established. The magistrate thereby misapprehended a limit on his powers and fined the applicant and ordered him to comply with the Notice in breach of the limits on his power. It was not open to the magistrate to fine the applicant and order him to comply with the Notice when he had found in relation to one element of the charges that it was not proved beyond reasonable doubt. The magistrate did not have jurisdiction to decide whether to fine the applicant and order him to comply with the Notice after a trial in which he found that one element of the charges was not proved beyond reasonable doubt. The error made by the magistrate was a jurisdictional error.
Certiorari on the face of the record
31 It is not necessary to decide whether the magistrate's error was an error of law on the face of the record. However, the matter was argued and I will briefly set out my finding on the issue. Certiorari will lie for error of law on the face of the record. The record of an inferior court generally consists of the initiating process and certified order. The reasons given for a decision or the transcript of proceedings do not form a part of the record for the purposes of certiorari: Kirk [78] - [85]. The error alleged by the applicant does not appear on the face of the record and is therefore not an error of law on the face of the record.
Ground of review is established
32 The applicant has established that he is aggrieved by an act or order done or made by the magistrate on a ground that might have justified an order of certiorari. The power to grant relief under s 36(4) of the Magistrates Court Act is enlivened.
Discretion
33 The court has a discretion to refuse relief under s 36(4) of the Magistrates Court Act. The approach of courts to the grant of certiorari is relevant to, although not determinative of, the exercise of the court's discretion under s 36(4). A court has discretion to refuse certiorari even though the grounds have been established. Relief may be refused where the applicant might have pursued the normal appeal processes instead. However, it cannot be overlooked that s 36(1) allows an applicant to apply for a review order in circumstances where he could have brought an appeal under the Criminal Appeals Act. Section 36(5) expressly contemplates that an application may be brought in circumstances where an appeal lies. The application for judicial review and an appeal would both be heard by the same court.
34 Delay is a relevant criterion for discretionary refusal of certiorari whether or not the court rules stipulate a time limit and if they do even if the limit has not been breached: Ex Parte Savage and Savage [1989] WAR 46, 52. Neither s 36 nor the rules of court setting out the procedure for this application contain any time limit. Nevertheless, the delay may result in a discretionary refusal of the application: Jackson v Chrisp [2013] WASC 380 [34] (Allanson J). The applicant did not bring the application until more than 17 months after the magistrate's decision. At the time the applicant filed his application an appeal under the Criminal Appeals Act would have been more than 16 months out of time.
35 The applicant has not provided an adequate explanation for the delay. In his affidavit in support of his application for review the applicant says that when the magistrate gave his reasons for decision the applicant was not aware of any ground of appeal that he had to challenge the order or against the findings of the magistrate that led to the order being made. The applicant says it was not until some 15 months following the order being made that he was prosecuted for failing to comply with the order wherein he caused counsel to be engaged and he received advice from his solicitors in February 2016 after counsel had attended to the matter. The applicant says that it was only after receiving advice in February 2016 that he became aware that he might have arguable grounds to challenge the order or the findings of the magistrate that led to the order being made.
36 The explanation given by the applicant for his delay is inadequate. The firm of solicitors acting for the applicant during the trial before the magistrate is the same firm of solicitors acting for him now in this application. At the trial, excluding the date the magistrate's decision was delivered and the date of sentence, the applicant was represented by senior counsel. The applicant has not adduced evidence whether at or about the time the magistrate delivered his decision and imposed sentence the applicant sought advice on whether there were grounds for challenging the magistrate's decision or if he did what advice he received. If the applicant sought no advice after the magistrate's decision and sentence the applicant has not explained why he sought no advice at that time but sought such advice when he was subsequently prosecuted for failing to comply with the magistrate's order arising from his convictions.
37 Notwithstanding the availability of an alternative remedy and the applicant's delay in bringing this application I will not exercise my discretion to refuse relief. The orders made by the magistrate include an order to comply with the Notice by a specified date. That order imposed a new obligation on the applicant. The applicant has now been prosecuted for failing to comply with that order. The order of the magistrate which I have found was made beyond jurisdiction is the foundation for the prosecution which is now pending against the applicant. There is no relevant prejudice to the prosecutor. In those circumstances justice is served by exercising my discretion to grant relief.
Relief
38 Section 36(4) of the Magistrates Court Act provides that if the grounds for relief are made out the court, if it is just to do so, 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.
39 Section 36(4)(a) empowers the court to order that the order be set aside. It is appropriate to order that the order of the magistrate fining the applicant and ordering the applicant to comply with the Notice be set aside.
40 Section 36(4)(b) empowers the court to grant any relief or remedy that could have been granted by way of a writ of mandamus, prohibition or certiorari. Certiorari quashes the legal consequences of the impugned decision. The court cannot substitute its own decision for that which is quashed. The court's sole function is to consider whether to quash the impugned decision. Orders that are dependent upon the flawed decision are also quashed. In this case the orders fining the applicant and requiring the applicant to comply with the requirements to produce to the Commissioner the documents described in the Notice should be quashed.
41 Section 36(4)(c) provides that the court may make any necessary consequential orders. Such an order must be necessarily consequential upon the order made by the court, in this case an order quashing the magistrate's orders. An order entering a verdict of acquittal or dismissing the charges against the applicant giving rise to the magistrate's orders is not an order that is a necessary consequential order upon the order quashing the magistrate's decision and orders.
The court should not order the application to be treated as if it were an appeal
42 Under s 36(5)(a) of the Magistrates Court Act the court may, if it considers an appeal lies under the Criminal Appeals Act in respect of the act, order or direction, order the application be treated as if it were such an appeal and deal with the matter accordingly.
43 A person who is aggrieved by a decision of the Magistrates Court may appeal to this court against the decision on, amongst others, the ground that the court made an error of law: Criminal Appeals Act s 7, s 8. Leave of this court is required for each ground of appeal: Criminal Appeals Act s 9. An appeal against the decision cannot be commenced later than 28 days after the date of the decision unless this court orders otherwise: Criminal Appeals Act s 9, s 10. The application for a review order under s 36 was filed on 22 March 2016. An appeal under the Criminal Appeals Act at that time would have been more than 16 months out of time. For the reasons I have stated earlier the applicant has not provided an adequate explanation for his delay.
44 It is not appropriate to exercise my discretion, if the discretion is enlivened, to order the application to be treated as if it were an appeal under the Criminal Appeals Act because an application for leave to appeal would have been 16 months out of time when the applicant brought this application for review and he has provided no adequate explanation for the delay. The court should not allow the statutory requirements for commencing an appeal under the Criminal Appeals Act to be subverted by an applicant applying for review under the Magistrates Court Act and then the court treating the application as if it were an appeal under the Criminal Appeals Act when the applicant has provided no adequate explanation for his failure to commence an appeal in accordance with the requirements of the Criminal Appeals Act.
45 The hearing in this matter was the hearing of the applicant's application for review under s 36 of the Magistrates Court Act. I directed that if the court's power under s 36(5) of the Magistrates Court Act was enlivened the court would not deal with the matter as if it were an appeal under the Criminal Appeals Act because the prosecutor was not prepared to deal with the matter on that basis and had not had a fair opportunity to consider whether she would seek to lead additional evidence on the hearing of such an appeal and whether she would rely upon the no miscarriage of justice proviso and if so on what grounds. Therefore, if the power to treat the application as if it were an appeal and deal with the application as an appeal is enlivened the matter would have to be dealt with at a subsequent hearing at which the parties may lead further evidence in relation to the extension of time issue and the matters the prosecutor has referred to. There is no good reason for treating this application as if it were an appeal. The appropriate course is to dismiss this application.
Conclusion
46 The decision of the magistrate that the applicant was guilty of the charges and the order of the magistrate fining the applicant and ordering him to comply with the requirement to produce to the Commissioner within one month the documents described in the Notice should be set aside.
3
9
6