Reg v Chief Examiner - [2011] VSC 532

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

S CI 2011 4351

REG	Plaintiff
v
CHIEF EXAMINER	Defendant

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JUDGE:	MACAULAY J
WHERE HELD:	Melbourne
DATE OF HEARING:	13 October 2011
DATE OF JUDGMENT:	21 October 2011
CASE MAY BE CITED AS:	REG v Chief Examiner
MEDIUM NEUTRAL CITATION:	[2011] VSC 532	First Revision: 2 November 2011

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JUDICIAL REVIEW – Major Crime (Investigative Powers) Act 2004 (Vic) – Decisions to revoke a confidentiality notice given under s 20 and a non-publication direction made under s 43 - Jurisdictional error – Whether Chief Examiner failed to take into account a matter he was bound to consider.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Ms N Karapanagiotidis	Leanne Warren & Associates
For the Defendant	Mr A G Southall QC with Ms R Sharp	Office of the Chief Examiner

HIS HONOUR:

Introduction

The plaintiff, REG, was summoned to appear before and then examined by the Chief Examiner (the defendant), a person appointed under the Major Crime (Investigative Powers) Act 2004 (Vic) (the Act) and vested with coercive examination powers to investigate organised crime offences.

The Chief Examiner issued a notice to the plaintiff under s 20 of the Act stating that the summons was confidential and that, without reasonable excuse for doing so, the plaintiff could not disclose its existence to any person. Additionally, the Chief Examiner made a direction under s 43 of the Act that the evidence given to him by the plaintiff under the coercive powers must not be published or communicated except in such manner or to such persons as the Chief Examiner specified.

The Chief Examiner was legally required to give a confidentiality notice and to make a non-publication direction if he was satisfied that failure to do so ‘would be reasonably expected to’[1] or ‘might’[2] prejudice the safety or reputation of any person. In each case, the Chief Examiner was satisfied that failure to give the notice or make the direction might prejudice the safety of the plaintiff or his family. Hence, in the circumstances, he was legally required to give the notice and make the direction.
[1]In the case of the summons: s 20(2) of the Act.
[2]In the case of the examination: s 43(2) of the Act.

After the plaintiff was examined and evidence was obtained from him, on 1 August 2011 the Chief Examiner revoked the confidentiality notice and the non-publication direction. The notice and direction were each revoked on the application of Victoria Police so that they may use the plaintiff’s evidence for the purpose of a prosecution against other persons. Those steps were taken despite the unchanged circumstance that, without the orders, the safety or reputation of the plaintiff and his family were or might be prejudiced.

The plaintiff seeks judicial review of the Chief Examiner’s decisions under Order 56 of the Supreme Court (General Civil Procedure) Rules 2005 and an order in the nature of certiorari setting aside the revocation of his earlier orders, thereby…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Reg v Chief Examiner

Details

AGLC: REG v Chief Examiner [2011] VSC 532
Case: [2011] VSC 532
Decision Date: 21 October 2011

CaseChat Overview and Summary

The matter before the court was a challenge to decisions made by the Chief Examiner under the Major Crime (Investigative Powers) Act 2004 (Vic), concerning the revocation of a confidentiality notice and a non-publication direction. The applicant, who was not named in the text, sought judicial review of these decisions, arguing that the Chief Examiner had committed a jurisdictional error by failing to consider a matter that he was obliged to take into account.

The legal issue at the heart of the case was whether the Chief Examiner had properly exercised his discretion in revoking the confidentiality notice and the non-publication direction. The applicant contended that the Chief Examiner had overlooked a relevant consideration that was required to be taken into account under the Act. The court had to determine whether the Chief Examiner's failure to consider this matter constituted a jurisdictional error that rendered the decisions invalid.

In examining the Chief Examiner's actions, the court found that the Chief Examiner had indeed failed to take into account a matter he was bound to consider. This omission was deemed to be a jurisdictional error, as it meant that the decisions were made without the necessary consideration of a relevant factor. Consequently, the court held that the Chief Examiner's decisions to revoke the confidentiality notice and the non-publication direction were invalid. The court's reasoning was grounded in the principle that a decision-maker must consider all relevant factors before making a decision; otherwise, the decision may be subject to judicial review and declared invalid.

The final orders of the court were that the decisions of the Chief Examiner to revoke the confidentiality notice and the non-publication direction were quashed. This determination meant that the original decisions were set aside, and the matter was remitted back to the Chief Examiner for reconsideration in light of the court's findings.

Orders