Reynolds v Panten [No 2]

[2000] WASCA 412

REYNOLDS -v- PANTEN [2000] WASCA 412

Reported Decision:	(2000) 23 WAR 238
Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2000] WASCA 412
Court:	THE FULL COURT (WA)
Case No:	FUL:90/1999	Heard:	6 & 7 APRIL 2000
Coram:	KENNEDY J WALLWORK J MURRAY J	Delivered:	20/12/00
No of pages:	23	Judgment Part:	1 of 1
Result:	Appeal dismissed Order nisi for a writ of certiorari made absolute
PDF Version

Parties:	KEVIN NOEL REYNOLDS BRETT RUSSELL PANTEN
Catchwords:	Prerogative writs Certiorari Mandamus Jurisdictional error Justices Jurisdiction Preliminary hearing Restriction on publication of evidence Whether jurisdiction extends beyond time of committal
Legislation:	Justices Act 1902, s 101D
Case References:	ABC v Parrish (1980) 29 ALR 228 Ainsworth v Criminal Justice Commission (1991-1992) 175 CLR 564 Annetts v McCann (1990) 170 CLR 596 Barnett v "N2", unreported; SCt of WA; Library No 950461; 30 August 1995 Brennan v Williams (1951) 53 WALR 30 Brygel v Stewart-Thornton 1992] 2 VR 387 Coal & Allied Operations Pty Ltd v Australian Industrial Relations Committee (2000) 74 ALJR 1348 Craig v South Australia (1994-1995) 184 CLR 163 Dowding v Barrett, unreported SCt of WA; Library No 960352; 5 July 1996 Ex parte Cousens; Re Blacket (1946) 47 SR (NSW) 145 Hot Holdings Pty Ltd v Creasy (1996) 185 CLR 149 Ibbs v Commissioner of Police, unreported; SCt of WA; Library No 930657; 29 November 1993 Moles (1994) 77 A Crim R 360 Moularis v Nankervis [1985] VR 369 Penniel v Driffill [1980] WAR 30 Re Bromfield; Ex parte WA Newspapers Ltd (1991) 6 WAR 153 Re Robins SM; Ex parte WA Newspapers Ltd (1999) 20 WAR 511 WA Pines Pty Ltd v Hamilton [1980] WAR 29 Waterhouse v Gilmore (1988) 12 NSWLR 270 A v Hayden (1984) 156 CLR 532 Attorney General v Leveller Magazine Ltd [1979] AC 440 Attorney General v Wentworth (1988) 14 NSWLR 481 Bailey v Hinch [1989] VR 78 Baldwin & Francis Ltd v Patents Appeal Tribunal [1959] AC 663 Blake v Norris (1990) 20 NSWLR 300 Chambers v James Cook University (No 2) (1995) 61 IR 145 David Syme & Co v H, unreported; SCt of Vic (Beach J); 10 March 1995 Harkness v Bells Asbestos & Engineering Ltd [1967] 2 QB 729 Heather v Vita Pacific Ltd, unreported; FCt SCt of Tas; No FCA 61 of 1996; 23 December 1996 J v L & A Services Pty Ltd (No 2) [1995] 2 Qd R 10 John Fairfax Group Pty Ltd v Local Court of New South Wales (1991) 26 NSWLR 131 Kelson v Forward (1995) 60 FCR 39 Kyle v Legal Practitioners' Complaints Committee [1999] WASCA 115 Parker v Taylor, unreported; FCt SCt of WA; Library No 930581; 29 October 1993 Pasdale v Concrete Constructions (1995) 131 ALR 268 R v Chief Registrar of Friendly Societies; ex parte New Cross Building Society [1984] QB 227 R v Craig (1989) 5 WAR 107 R v London County Council [1915] 2 KB 466 R v Medcalf; ex parte Conacher [1978] WAR 53 R v Socialist Worker Printers and Publishers Ltd; ex parte Attorney General [1975] 1 All ER 142 Raybos Australia Pty Ltd v Jones (1985) 2 NSWLR 47 Re Bennett-Borlase SM; ex parte The Commissioner of Police, unreported; FCt SCt of WA; Library No 970322; 20 June 1997 Re Smith; ex parte Rundle (1991) 5 WAR 295 Richards v Cullerne [1881] 7 QBD 623 Smalley v Robey & Co Ltd [1962] 1 QB 577 TK v Australian Red Cross Society (1989) 1 WAR 335 W A Field & Game Association v Minister for Conservation (1992) 8 WAR 64 Woods v Christmass [1985] WAR 323

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE FULL COURT (WA) CITATION : REYNOLDS -v- PANTEN [2000] WASCA 412 CORAM : KENNEDY J

WALLWORK J
MURRAY J

HEARD : 6 & 7 APRIL 2000 DELIVERED : 20 DECEMBER 2000 FILE NO/S : FUL 90 of 1999 BETWEEN : KEVIN NOEL REYNOLDS

Appellant

AND

BRETT RUSSELL PANTEN
Respondent

FILE NO/S : CIV 1897 of 1999
MATTER : An application for a Writ of Certiorari and Writ of Mandamus against PAUL MICHAEL HEANEY SM in the Perth Court of Petty Sessions

EX PARTE

KEVIN NOEL REYNOLDS

Applicant

(Page 2)

Catchwords:

Prerogative writs - Certiorari - Mandamus - Jurisdictional error

Justices - Jurisdiction - Preliminary hearing - Restriction on publication of evidence - Whether jurisdiction extends beyond time of committal

Legislation:

Justices Act 1902, s 101D

Result:

Appeal dismissed

Order nisi for a writ of certiorari made absolute

Representation:

FUL 90 of 1999

Counsel:

Appellant : Mr R L Le Miere QC & Ms C L Tan
Respondent : Mr G T W Tannin & Mr J A Thomson

Intervener : Mr M C Goldblatt for West Australian Newspapers Ltd

Solicitors:

Appellant : Dwyer Durack
Respondent : State Crown Solicitor

Intervener : Freehill Hollingdale & Page

(Page 3)

CIV 1897 of 1999

Counsel:

Applicant : Mr R L Le Miere QC & Ms C L Tan

Intervener : Mr M C Golblatt for West Australian Newspapers Ltd.

Solicitors:

Applicant : Dwyer Durack

Intervener : Freehill Hollingdale & Page

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

ABC v Parrish (1980) 29 ALR 228
Ainsworth v Criminal Justice Commission (1991-1992) 175 CLR 564
Annetts v McCann (1990) 170 CLR 596
Barnett v "N2", unreported; SCt of WA; Library No 950461; 30 August 1995
Brennan v Williams (1951) 53 WALR 30
Brygel v Stewart-Thornton 1992] 2 VR 387
Coal & Allied Operations Pty Ltd v Australian Industrial Relations Committee (2000) 74 ALJR 1348
Craig v South Australia (1994-1995) 184 CLR 163
Dowding v Barrett, unreported SCt of WA; Library No 960352; 5 July 1996
Ex parte Cousens; Re Blacket (1946) 47 SR (NSW) 145
Hot Holdings Pty Ltd v Creasy (1996) 185 CLR 149
Ibbs v Commissioner of Police, unreported; SCt of WA; Library No 930657; 29 November 1993
Moles (1994) 77 A Crim R 360
Moularis v Nankervis [1985] VR 369
Penniel v Driffill [1980] WAR 30
Re Bromfield; Ex parte WA Newspapers Ltd (1991) 6 WAR 153
Re Robins SM; Ex parte WA Newspapers Ltd (1999) 20 WAR 511
WA Pines Pty Ltd v Hamilton [1980] WAR 29
Waterhouse v Gilmore (1988) 12 NSWLR 270



(Page 4)

Case(s) also cited:

A v Hayden (1984) 156 CLR 532
Attorney General v Leveller Magazine Ltd [1979] AC 440
Attorney General v Wentworth (1988) 14 NSWLR 481
Bailey v Hinch [1989] VR 78
Baldwin & Francis Ltd v Patents Appeal Tribunal [1959] AC 663
Blake v Norris (1990) 20 NSWLR 300
Chambers v James Cook University (No 2) (1995) 61 IR 145
David Syme & Co v H, unreported; SCt of Vic (Beach J); 10 March 1995
Harkness v Bells Asbestos & Engineering Ltd [1967] 2 QB 729
Heather v Vita Pacific Ltd, unreported; FCt SCt of Tas; No FCA 61 of 1996; 23 December 1996
J v L & A Services Pty Ltd (No 2) [1995] 2 Qd R 10
John Fairfax Group Pty Ltd v Local Court of New South Wales (1991) 26 NSWLR 131
Kelson v Forward (1995) 60 FCR 39
Kyle v Legal Practitioners' Complaints Committee [1999] WASCA 115
Parker v Taylor, unreported; FCt SCt of WA; Library No 930581; 29 October 1993
Pasdale v Concrete Constructions (1995) 131 ALR 268
R v Chief Registrar of Friendly Societies; ex parte New Cross Building Society [1984] QB 227
R v Craig (1989) 5 WAR 107
R v London County Council [1915] 2 KB 466
R v Medcalf; ex parte Conacher [1978] WAR 53
R v Socialist Worker Printers and Publishers Ltd; ex parte Attorney General [1975] 1 All ER 142
Raybos Australia Pty Ltd v Jones (1985) 2 NSWLR 47
Re Bennett-Borlase SM; ex parte The Commissioner of Police, unreported; FCt SCt of WA; Library No 970322; 20 June 1997
Re Smith; ex parte Rundle (1991) 5 WAR 295
Richards v Cullerne [1881] 7 QBD 623
Smalley v Robey & Co Ltd [1962] 1 QB 577
TK v Australian Red Cross Society (1989) 1 WAR 335
W A Field & Game Association v Minister for Conservation (1992) 8 WAR 64
Woods v Christmass [1985] WAR 323

(Page 5)

1 KENNEDY J: I have had the benefit of reading in draft the reasons to be published by Wallwork J, with which I am generally in agreement.

2 I agree that there has been jurisdictional error on the part of the learned Magistrate, as to which see Coal & Allied Operations Pty Ltd v Australian Industrial Relations Committee (2000) 74 ALJR 1348, at [31]. I would direct a writ of certiorari to issue and further direct that the decision of the learned Magistrate on the application of the applicant under s 101D of the Justices Act 1902 be quashed on the return without further notice. The position with respect to the writ of mandamus is now more complex. Section 101D of the Justices Act provides:

"Where there is a preliminary hearing the justices may at any time state that in their opinion in the interests of justice it is undesirable that any report of or relating to the evidence or any of the evidence given or tendered at the proceedings before them should be published and thereafter a person who prints, publishes, exhibits, sells, circulates, distributes, or in any other manner makes public such report, or any part thereof, or attempts to do so, commits a contempt of the Supreme Court and is punishable accordingly by that court."

3 The issue which has arisen is whether, after the preliminary hearing has been concluded, the Justices (or the Magistrate) may state their (or his or her) opinion in terms of s 101D of the Justices Act. In my opinion, the words "at any time" should be given their full effect and accordingly I am of the view that the jurisdiction to restrict the publication of evidence under the section survives the conclusion of the preliminary hearing.

4 Since judgment was reserved in these matters, however, it has become apparent that there has been some significant publicity regarding Mr Reynolds arising out of the trial which has followed the preliminary hearing. The question now arises as to whether, in the changed circumstances, it would any longer be appropriate to make the order nisi for a writ of mandamus absolute. In my opinion, the parties and the intervener should have an opportunity of making further oral submissions to the Court on this aspect of the matter.

5 WALLWORK J: These are reasons for judgment after the hearing of an appeal from a decision of a Judge of this Court and the hearing of applications for writs of certiorari and mandamus. The three matters relate to a preliminary hearing (or committal hearing) before a Magistrate in the Court of Petty Sessions at Perth.

(Page 6)

Background

6 The summary of the relevant events which follows is taken from the learned Judge's reasons after he had heard an appeal from what was said by the appellant to be a "decision" of a learned Magistrate in the course of a preliminary hearing in the Court of Petty Sessions.

7 On 23 November 1998, there was a preliminary hearing before a Magistrate in the Court of Petty Sessions at Perth, relating to complaints which had been made against Mr Turner and Mr Kinney. Mr Turner was at the time of the matters giving rise to the complaints, the State Manager of a construction company, Fletcher Construction Australia Ltd ("Fletcher Constructions"). Mr Kinney was an official employed by a union of which the appellant Mr Kevin Reynolds was the Secretary.

8 Mr Kinney was charged under s 529(b) of the Criminal Code (WA) ("the Code") with the offence of corruptly receiving from Fletcher Constructions, $20,000, so as to induce him to show favour to that company in relation to the business of the union, by ensuring that there be industrial harmony at the Fletcher Constructions' building site at the Midland Gate Shopping Centre. Mr Turner was charged under s 530(b) of the Code with having aided in corruptly paying that sum to Mr Kinney. Mr Turner was also charged with 26 counts of fraud and one of attempted fraud.

9 Depositions had been served on Messrs Turner and Kinney prior to the commencement of the hearing. Those depositions included statements from Mr Mangione and Mr Halpin.

10 Mr Mangione, the owner of a company which had been awarded a sub-contract by Fletcher Constructions for building works at Midland Gate Shopping Centre, had said in his statement that he had been told by Mr Turner to:

"… bump the price ... [under the sub-contract] up by $100,000 to cover the costs of [work to be done on] Turner's house and a payment of $40,000 to Kevin Reynolds of the BLF."

11 Mr Mangione said in his statement that in September 1993 he had been telephoned by Mr MacGregor, the Construction Manager at Fletcher Constructions, who told him that he "wanted the first $20,000 of the $40,000 that had been included for payment to Kevin Reynolds." He said that he had later handed the $20,000 in cash to Mr MacGregor. He said

(Page 7)

that he had thereafter received a telephone call from Mr Turner, who had told him that "he needed the second $20,000 payment for Kevin Reynolds." Mr Mangione said that he did not have the $20,000 cash to give to Mr Turner right away, but that he would give him part of that sum. He later gave Mr Turner $10,000 in cash. About a month later he said Mr Turner rang him asking for "the rest of the money for … Reynolds" and that he gave it to Mr Turner in cash.

12 In his statement, Mr Mangione told of an alleged meeting, after the police investigation which had led to the charges being brought against Messrs Turner and Kinney, at which he said he had been asked by Mr Reynolds to change his "story" and to say that he "gave the money to MacGregor for a legitimate payment to the union and not to any particular union person, or that … [he] used it to gamble." He said that he had declined to do that.

13 Mr Halpin in his deposition said that he was told by Mr Turner shortly before 30 November 1993 that "he needed a $6000 cash payment as a Christmas present for Kevin Reynolds." He said that he later met with Mr Mangione and told him that Mr Turner "required $6000 in cash to pay Kevin Reynolds a Christmas bonus" and that Mr Mangione's company should be used "to obtain the money as … [it was] already involved in providing money to be paid to the union by the addition of the $100,000 … in his sub-contract." He produced an invoice from Mr Mangione's company dated 30 November 1993 which included a charge of $8300 for an item shown as "site Midland Gate Shopping Centre, temporary footpath as agreed." He said that the sum of $8300 was in truth a payment made to Mr Mangione's company at the request of Mr Turner and was to be used to pay $6000 to Kevin Reynolds, with the remainder of the sum being intended to cover the tax payable by Mr Mangione's company. Mr Halpin's statement also touched upon other payments which, he said, he was told were to be made to Mr Reynolds, including one of $40,000.

14 Mr Reynolds, when he became aware of the contents of these depositions, sought legal advice in respect of them. He said that there was no truth in what had been said against him. He wished to commence proceedings for defamation against the originators of the allegations. His solicitor arranged for counsel to appear on his behalf at the preliminary hearing in order to apply for what his then counsel referred to as a "suppression order", in effect, an invitation to the Magistrate to form the opinion referred to in s 101D of the Justices Act 1902 ("the Act"). Section 101D provides:

(Page 8)

"Where there is a preliminary hearing the Justices may at any time state that in their opinion in the interests of justice it is undesirable that any report of or relating to the evidence or any of the evidence given or tendered at the proceedings before them should be published and thereafter a person who prints, publishes, exhibits, sells, circulates, distributes, or in any other manner makes public such report, or any part thereof, or attempts to do so, commits a contempt of the Supreme Court and is punishable accordingly by that Court."

15 At the preliminary hearing, counsel for Mr Reynolds told the learned Magistrate that he had been informed by the prosecutor that the Crown did not propose to lead hearsay evidence of the kind complained of by Mr Reynolds. However, Mr Reynolds' counsel said he had been told by counsel for Mr Kinney that the latter would be cross-examining on that material, not for the purpose of proving its truth, but rather to attack the credibility of the makers of the statements. Counsel for Mr Reynolds made it plain that he consequently applied for a "suppression order" in respect of "those parts" of the evidence which, he said "[would] not be put before … [the] court as truth of its contents … but merely those parts of the evidence that … [were] … hearsay on hearsay, which allege corruption in the most virulent terms against Kevin Reynolds and the union."

16 Counsel stressed that Mr Reynolds was not charged with anything and that the evidence in question was evidence "that the prosecutorial authorities place[d] no credence in." He submitted that not only would the evidence "blacken" Mr Reynolds' name, but that Mr Reynolds and the union had instructed their lawyers to take defamation proceedings against those who had made the allegations. He submitted that publication of the allegations:

"would render the taking of civil action for defamation against these people completely useless … because the allegations could then be printed under the protection of privilege. …"

17 Counsel for Mr Reynolds submitted that the material was "said to be completely untrue."

18 The Crown made no submission in respect of the matters raised on behalf of Mr Reynolds, but said that, because Mr Mangione and Mr Halpin were to be cross-examined on the hearsay material, the Crown would "certainly now be leading that evidence from those witnesses".

(Page 9)

19 The learned Magistrate then heard submissions from counsel for West Australian Newspapers Ltd, the publishers of "The West Australian" newspaper, which had intervened in the proceedings in order to oppose the imposition of any restriction on publication of the evidence led in the course of the preliminary hearing.

20 The learned Magistrate gave ex tempore reasons for declining to accede to the request which had been made on Mr Reynolds' behalf. He said that there was a principle which was "fundamental to our society and method of government" to the effect that "except in extraordinary circumstances or exceptional circumstances, the courts of the land are open to the public" and that this principle arose out of the belief that exposure to public scrutiny was "the surest safeguard against any risk of the courts abusing their powers." After making some additional comments he said:

"This Court is not prepared to sacrifice what is a fundamental principle that our courts are to be open to the public because it may, or even will, render impractical a proposed defamation case. If being unfair to a defendant is not sufficient of itself for a suppression order … in respect of a defendant, is someone else who was not a defendant in a stronger position than a person who is a defendant? In this case, I think not. So … the [appellant's] application for suppression of the evidence relating to … [him] is not allowed."

21 On the same day, Mr Reynolds sought and obtained leave to appeal from what was described in the order giving leave as "the decision … to dismiss the application … for an order under …" s 101D of the Act. An order was also made that pending the disposition of the appeal, or until further order:

"No report of or relating to evidence given in the committal proceedings against … [Mr] Turner and [Mr] Kinney to the effect that monies, by way of secret commission or otherwise corruptly, were to be paid, sought or received, by or at the request of, the appellant was to be published."

22 The preliminary hearing thereafter proceeded before the learned Magistrate.

23 When Mr MacGregor came to give evidence, Mr Mangione's statement was put to him. He was asked about Mr Mangione's allegation that he, Mr MacGregor, had told Mr Mangione that a payment of $40,000

(Page 10)

was to be made to Mr Reynolds. Mr MacGregor denied that he had said that and said that Mr Mangione had presumably erred as a consequence of "an association of ideas" and that there had been an "association [of] Mr Kinney with the union with Mr Reynolds." He said that all of his dealings were with Mr Kinney. He said that he may have referred "to the unions" but that he "certainly would not refer to Mr Reynolds". He denied that he said, at any time, that a payment was to be made "to or for" Mr Reynolds.

The Issues

24 It can be seen from the above summary that Mr Reynolds was not charged with any offence and was not to be a witness in the committal proceedings before the learned Magistrate. It was, however, thought that his name would be mentioned by two of the witnesses at the preliminary hearing, those witnesses being Mr Mangione and Mr Halpin. It was thought that Mr Mangione would give evidence that Mr Turner had mentioned Mr Reynolds and that Mr MacGregor had mentioned Mr Reynolds. In his statement Mr Mangione had also spoken of a later meeting after the police investigation at which he said he had been asked by Mr Reynolds to change his "story". In fact, he did not speak of that alleged meeting at the committal proceedings.

25 Mr Halpin in his statement was relating what he said he had been told by Mr Turner. Mr Halpin did not have any discussion with Mr Reynolds. The police or the DPP were not alleging that any offence had been committed by Mr Reynolds. The Crown had not proposed to lead the evidence complained of by Mr Reynolds until the counsel for one of the accused had said that he intended to cross-examine on the allegations which had been made in the statements, not for the purpose of proving their truth, but to attack the credibility of the makers of the statements.

26 In my view the fact that Mr Reynolds was not alleged by the police or the DPP to be a party to any offence and was not to be a witness at the proceedings, was an important factor to be considered by the learned Magistrate when he considered the application which had been made to him pursuant to s 101D of the Justices Act.

27 It was put by counsel for the applicant in this Court that the application before the learned Magistrate was only that Mr Reynolds' name be excluded from publication and not that of the union (Ts 113, 115). The application had been to delete the effect of the evidence that

(Page 11)

payments were sought to be paid to, or received by, or at the request of, Mr Reynolds (Ts 109).

28 Although Mr Reynolds' counsel did apply to the learned Magistrate for a "suppression order" in respect of those parts of the evidence which he said were hearsay on hearsay and which alleged corruption on the part of his client and the union, in my opinion the plain purpose of the application was to keep Mr Reynolds' name out of the media.

29 Section 101D of the Act authorised the learned Magistrate to state that in his opinion:

"in the interests of justice it is undesirable that any report of or relating to the evidence or any of the evidence given or tendered at the proceeding … should be published…."

30 Those words would authorise an expression of opinion by the learned Magistrate, if he held such an opinion, that it was undesirable that Mr Reynolds' name should be published in connection with the committal hearing.

31 The application made on behalf of Mr Reynolds, was not to close the court, or for the Magistrate to hear evidence in camera, or for the Magistrate to suppress the names of any of the accused persons or any of the witnesses in the proceedings. The application was in essence to prevent the publication of Mr Reynolds' name which had allegedly been mentioned to, or by, persons who were alleged to be implicated in the alleged offences.

32 Leaving aside the alleged meeting which Mr Mangione had mentioned in his statement but did not mention in his evidence, it was not said that Mr Reynolds had been present when any of the relevant conversations were alleged to have taken place.

33 The matters referred to in the two preceding paragraphs are significant because many of the decided cases which bear on the question of whether or not the learned Magistrate should have expressed the requested opinion, have been concerned with accused persons, parties to actions, or witnesses to the relevant proceedings.

34 A further matter which should be mentioned is that s 101D of the Act required the learned Magistrate to consider whether it was "in the interests of justice" that the reporting of Mr Reynolds' name would be undesirable.

(Page 12)

35 In his ex tempore reasons, his Worship referred to the fact that it was fundamental, except in extraordinary circumstances or exceptional circumstances, that the courts of the land should be open to the public because amongst other reasons, that was the surest safeguard against any risk of the courts abusing their powers. His Worship also referred to the fact that members of the public were reliant on the media to report what went on in the courts. His Worship said that the Court was not prepared to sacrifice what was a fundamental principle, that the courts were to be open to the public, because the mention of Mr Reynolds' name may, or even would, render impractical a proposed defamation case. As stated above, he said:

"If being unfair to a defendant is not sufficient of itself for a suppression order against … in respect of a defendant, is someone else who is not a defendant in a stronger position than a person who is a defendant? In this case, I think not. So … [the] application for suppression of the evidence relating to Mr Reynolds is not allowed."

36 In my view the learned Magistrate asked the wrong question. The relevant question was whether it was in the interests of justice that Mr Reynolds' name be suppressed, having in mind that he was not an accused person or a witness in the committal proceedings.

Was it in the interests of justice that Mr Reynolds' name be suppressed?

37 In this case it could be the fact that the allegations against Mr Reynolds, who is a prominent figure in this community, were made without any knowledge by him of any wrongdoing, as a part of fraudulent activity by the persons who used his name.

38 Mr Reynolds is presumed at law to be innocent of any wrong-doing. The police or the DPP did not charge him with any offence or any part of an offence. Further, if what was said about him was not said in a privileged situation such as committal proceedings in a court, it would prima facie constitute a very serious defamation. If it was said in the court, and then published, Mr Reynolds would have no action against whoever said it or published it, even if it was false and very damaging to him.

39 With respect to the learned Magistrate's comment that: "If being unfair to a defendant is not sufficient of itself for a suppression order against … in respect of a defendant, is someone else who is not a

(Page 13)

defendant in a stronger position than a person who is a defendant? In this case, I think not," Counsel for the applicant said that, with respect to the learned Magistrate, "he had it the wrong way round". The fact that the applicant was not a defendant should be a fact in his favour, because he was not in a position to refute the allegations or to deal in any way with them.

40 I think that contention is correct.

41 In ABC v Parrish(1980) 29 ALR 228 which was a decision concerned with the refusal of an order forbidding or restricting the publication of certain pages of a commercial agreement, at 255-256 Deane J, although in dissent in some respects, said:

"Damage and hardship to the individual from the working of legal processes can only be justified if they are warranted by countervailing benefit, or avoidance of prejudice to the general administration of justice, or by the legitimate claims and expectations of other individuals. When not so warranted, such damage or hardship is to the overall prejudice of the administration of justice."

42 At 254 his Honour had said:

"In every case, the advantages and disadvantages of an order under s 50 must be weighed for the purpose of determining whether, on balance, the making of an order is warranted by the need to prevent prejudice to the administration of justice."

43 His Honour also said:

"… the weight to be given, as a factor in the weighing process, to the prima facie desirability of the open administration of justice will vary from case to case according to the nature of the case and the materiality of the evidence."

44 In the same decision at 236, Bowen CJ said:

"Although the principle of open justice is of great importance in exercising the discretion under section 50, it is not necessarily the whole weight of that principle which must be placed in the scale. The derogation from the principle, which is involved in making an order under s 50, may be very great; or it may not be great; it may be very small. In placing that principle in the

(Page 14)

scale, the degree of derogation involved in the proposed order is an important matter to be considered."

45 At 236, Bowen CJ referred to "the public interest in preserving the privacy of confidential arrangements so far as practicable".

46 In my opinion, there is a public interest in not allowing person's reputations to be wrongly besmirched.

47 In Moularis v Nankervis [1985] VR 369 at 377, Ormiston J said:

"In particular the 'interests of justice' cover a wide range of circumstances, which, however, must all be related to the proper administration of justice, including the organisation of Justices and Magistrates' courts and their hearings, and the interests of the informant and the accused to the extent necessary to ensure that all parties obtain a just, efficient and expeditious hearing.

48 In my view in the circumstances of the present case, where the responsible authorities do not allege that Mr Reynolds has done anything wrong, "in the interests of justice" it is undesirable that any report of or relating to his name being involved in the proceedings should be published by or through the media. This is partly because the law has always recognised that a person has the right to protect his or her reputation from unwarranted damage.

49 Additionally, in my opinion, there is no reason at all in the interests of justice why Mr Reynolds' name should be besmirched by these allegations being reported in the media. A person who has reported a blackmail offence can be protected by the suppression of that person's name, as can a police informer. It is in the interests of justice to do that.

50 The principle of "open justice" will not be prejudiced to any great degree by the suppression of Mr Reynolds' name. He is not a witness or a party to the proceedings. No person has given "direct" evidence of any involvement by him in the alleged offences.

Remedy

51 A person who can show actual or apprehended injury or damage to his property or proprietary rights, … or economic interests … and perhaps to his social or political interests, has standing to apply for a writ of certiorari: Re Bromfield; Ex parte WA Newspapers Ltd (1991) 6 WAR

(Page 15)

153 at 162 and 190 - 191. A writ of mandamus may be granted on the application of a person who is sufficiently interested in the subject matter of the application.

52 In this case Mr Reynolds sought "an opinion" from the Magistrate in order to prevent the publication of his name. I appreciate that at the time the application was made there was some looseness as to what it was that was asked to be restricted. However, the practical approach is that Mr Reynolds was trying to keep his name from being published in connection with the evidence.

53 As stated above, it is my view that the learned Magistrate, in deciding the issues raised under s 101D of the Justices Act did not direct himself to the correct question which was whether "in the interests of justice it is undesirable that any report" referring to Mr Reynolds by name, should be published. The learned Magistrate in his reasons for decision, concentrated on the question of "open justice", and did not have sufficient regard to the rights of Mr Reynolds.

54 In Craig v South Australia (1994-1995) 184 CLR 163 at 177, Brennan, Deane, Toohey, Gaudron and McHugh JJ 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. … 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 in the jurisdiction may be particularly difficult to discern."

55 In Re Robins SM; Ex parte WA Newspapers Ltd (1999) 20 WAR 511 which was a decision concerned with s 101D of the Justices Act (WA), Ipp J at 521 said:

"Her Worship's reasons make no mention whatever of the question whether the interests of justice could be protected adequately (or at all) if part only of the evidence were to be suppressed. The issue is so important that I would expect that any judicial officer who applies his or her mind thereto, and

(Page 16)

concludes that a suppression of part only of the evidence would be inadequate, would express that opinion and give reasons for it. The learned Magistrate's omission to do so leads me to conclude that she gave no consideration to the question. I have expressed the opinion that it is a condition of jurisdiction, pursuant to s 101D, with respect to the expression of an opinion that all of the evidence at a preliminary hearing be suppressed, that the Magistrate has formed an opinion that the interests of justice would not adequately be protected by a suppression of only part of the evidence. In my opinion that condition was not satisfied in this case, and the learned Magistrate thereby committed a jurisdictional error."

56 In my view the aforementioned reasons from the two decisions referred to above are applicable in this case.

57 It was submitted on behalf of the newspaper that the decision by the Magistrate that he was not then of the relevant opinion was not a decision susceptible of being removed by certiorari into the Supreme Court for the purposes of quashing its legal effect because the decision bore no degree of finality. That it had, of itself, no legal effect and carried no legal consequences, whether direct or indirect. That it did not operate as a pre-condition to the exercise of power which would have affected legal rights and it was not a step in a process capable of altering rights, interests or liabilities. Counsel relied on the dicta in Hot Holdings Pty Ltd v Creasy (1996) 185 CLR 149 at 158 to 165 and Ainsworth v Criminal Justice Commission (1991-1992) 175 CLR 564 at 580 to 581.

58 In Ainsworth at 581, Mason CJ, Dawson, Toohey and Gaudron JJ said:

"There being no legal effect or consequence attaching to the report [by the Criminal Justice Commission Queensland] certiorari does not lie to correct the failure of the Commission to comply with its duty to proceed in a way that was fair to the appellant."

59 In Annetts v McCann (1990) 170 CLR 596, which decision was concerned with the refusal of orders for prohibition and mandamus where a coroner in Western Australia had declined to hear any closing addresses at the conclusion of an inquest, Mason CJ, Deane and McHugh JJ said at 559:

(Page 17)

"The judgments in the Full Court appear to assume that the appellants had no right to be heard because nothing in the evidence suggested that anything adverse to them personally could emerge from the coroner's finding or rider. But this assumption overlooks two matters … The grant of representation did more than recognise the appellants' personal interest in the performance of the duties which the law imposes on the coroner, as to which see Bilbao v Farquhar (1974) 1 NSWLR 377 at 380. It also created a legitimate expectation that the coroner would not make any finding adverse to the interests which they represent without giving them the opportunity to be heard in opposition to that finding. Secondly the interests which they represent include the protection of the reputation of their deceased son. … Whichever analysis is adopted the appellants have a common law right to be heard in opposition to any potential adverse finding in relation to themselves and the deceased unless by express terms or necessary implication the Act has excluded their common law right to be heard."

60 A prerogative writ was appropriate in that case.

61 In Waterhouse v Gilmore (1988) 12 NSWLR 270, Hunt J discussed the jurisdiction of the Supreme Court of New South Wales to review decisions of Magistrates given in the course of committal proceedings. His Honour held that a Magistrate's decision as to whether or not he will commit for trial is purely executive in nature and is not within that category of executive acts which are accessible to correction by the court in the exercise of its supervisory jurisdiction at common law by way of prohibition or certiorari. His Honour followed some earlier decisions including Ex parte Cousens; Re Blacket (1946) 47 SR (NSW) 145 at 146-147. However at 276 his Honour also held that an inability to grant certiorari will not stand in the way of a grant of mandamus. He said that for such an order to be granted it must be shown that the Magistrate misunderstood the nature of the jurisdiction which he had purported to exercise in the matter before him … [that] Jordan CJ in that case included within the scope of mandamus the application of "a wrong and inadmissible test …" and a misunderstanding by the magistrate as to "the nature of the opinion which he is to form: R v Connell (1944) 69 CLR 407 at 432".

62 In Brygel v Stewart-Thornton 1992] 2 VR 387 a Magistrate had committed a person (the plaintiff) for trial on three charges of threatening

(Page 18)

to kill. The plaintiff claimed that the committal proceeding had not been conducted according to law and he sought writs of certiorari or mandamus in order to obtain a rehearing of the committal proceedings. Phillips J held that the proceedings had not been conducted according to law and that they were null and void as so was the final order for committal. His Honour held that there had been jurisdictional error and that although certiorari was not available in relation to the decision to commit for trial, a writ of mandamus was available to order that the committal proceeding be conducted according to law.

63 In Moles (1994) 77 A Crim R 360, Underwood J said that certiorari is available to control committal hearings in Queensland, South Australia and Western Australia but that in Western Australia "this question does not appear to have yet been the subject of close judicial scrutiny". His Honour said at 394:

"I would apply the passage from Murphy (1985) 158 CLR 596 at 615; 16 A Crim R 203 at 210 and hold that the executive or ministerial function of committal proceedings is no bar to the supervisory jurisdiction of this Court by way of prerogative writ."

64 In Re Robins SM; Ex parte WA Newspapers (supra) after a review of some of the decided cases on the subject, Ipp J, with whom Pidgeon and Steyter JJ agreed, said:

"In the circumstances, although it may be said that, when the learned Magistrate was conducting the preliminary hearing she was exercising non judicial powers, she was nevertheless sitting as an inferior court while doing so."

65 Although the court in that case did not make an order quashing the learned Magistrate's decision, it did hold that there had been a jurisdictional error. The court remitted the matter to the learned Magistrate for her further consideration in accordance with the reasons of the court (p 523).

66 In my view in the present case, the "ruling" by the learned Magistrate that he was not of the relevant opinion is a ruling capable of being removed into the Supreme Court for the purposes of considering whether certiorari or mandamus should issue.

67 In my opinion, in all the circumstances, this Court should direct a writ of certiorari to issue and make the further orders which have been

(Page 19)

suggested by Kennedy J, namely direct that the decision of the learned Magistrate be quashed and allow the parties and the intervener to make further oral submissions as to whether it would any longer be appropriate to make the order nisi for a writ of mandamus absolute.

68 In the meantime the order that:

"No report of or relating to evidence given in the committal proceedings against … [Mr] Turner and [Mr] Kinney to the effect that monies, by way of secret commission or otherwise corruptly, were to be paid, sought or received, by or at the request of, the appellant is to be published."

should be continued.

The appeal

69 In the decision of Steytler J which is appealed from, his Honour considered whether there was a decision from which an appeal lay under s 84 of the Justices Act. The word "decision" is defined in s 4 of the Act. His Honour identified the issue as being whether what was done by his Worship amounted to the "final determination of a proceeding" within s 4(d) of the Act. His Honour noted that there is no definition in the Act of "a proceeding". He then discussed the history of the right of appeal in the Act.

70 His Honour referred to previous decisions concerned with the meaning of the word "decision" including Brennan v Williams (1951) 53 WALR 30; Penniel v Driffill [1980] WAR 30; WA Pines Pty Ltd v Hamilton [1980] WAR 29; Ibbs v Commissioner of Police, unreported; SCt of WA; Library No 930657; 29 November 1993 and Barnett v "N2", unreported; SCt of WA; Library No 950461; 30 August 1995; Dowding v Barrett, unreported SCt of WA; Library No 960352; 5 July 1996 and some other decided cases, which last mentioned cases his Honour said had turned on the particular wording of the relevant legislation and which did not seem to him to be of much assistance. He came to the conclusion that the phrase "final determination of a proceeding" in its context in the Act, was not in his opinion apt to include a ruling of the kind made by the learned Magistrate in this case. He said that the learned Magistrate's decision was not one which finally determined any proceeding because there was, in his opinion, no "proceeding".

(Page 20)

71 His Honour concluded that s 101D of the Act does not require that any application be made to the learned Magistrate as a pre-condition to the exercise of his or her discretion to form the opinion referred to. That can be done at any time and of the Magistrate's own motion (cf Re Bromfield; Ex parte WA Newspapers Ltd (supra) at 157 - 176). His Honour also pointed out that no order would be made to give effect to the requisite opinion if the learned Magistrate had arrived at one. Rather the section provides that it is a contempt of the Supreme Court to publish evidence which is the subject of the expression of an opinion..

72 His Honour concluded by saying:

"There having been no proceeding which was finally determined by the learned Magistrate for the purposes of par (d) of the definition and there being no contention that what was done by the learned Magistrate otherwise fell within the definition of the word 'decision', it follows, in my opinion, that the appeal should be found to be incompetent."

73 With respect, I agree with his Honour's reasoning and his conclusions in this regard.

74 In my view the correct approach for someone who is wrongly refused a ruling lies in one of the prerogative writs.

75 The appeal should therefore be dismissed.

76 MURRAY J: In these matters I have had the advantage of reading in draft the reasons published by Wallwork J.

77 I respectfully agree with his Honour that in dealing with the issue or matter raised by the Justices Act1902 (WA), s 101D during the course of the preliminary hearing, the presiding Magistrate committed a jurisdictional error of the kind identified by his Honour. I agree that the decision made by the Magistrate is of a kind which is susceptible, in view of the nature of the error, to the grant of prerogative relief. It is clear to my mind that the applicant has standing to bring the prerogative proceedings. I would concur in the grant of certiorari. I would quash the decision or ruling made by the Magistrate during the course of the preliminary hearing on 23 November 1998. There is nothing that I wish to add to the reasons of Wallwork J in that regard.

78 The committal proceedings with which this matter is concerned were conducted from 23 November to 27 November 1998 inclusive, were then

(Page 21)

adjourned and continued from 19 April to 23 April 1999 inclusive. On 30 June 1999 the Magistrate made certain orders of committal for trial against the defendants. I understand that the accused persons who were committed for trial have now been tried by jury. In any event, having regard to the nature of the power conferred upon the presiding Magistrate by s 101D of the Justices Act, which terminates with the end of the preliminary hearing, a writ of mandamus, for which application was also made, directing the Magistrate to consider the formation of an opinion under the section in accordance with the law, should not issue. I would dismiss that application.

79 As to the appeal from the Magistrate brought under the Justices Act, I note that it was heard by Steytler J on 15 February and 28 April 1999. On 2 July 1999, in lengthy reasons, his Honour concluded that having regard to the way in which the right of appeal was conferred by the Justices Act, the appeal should be dismissed as incompetent. In case his Honour might be held to be in error in that regard, he expressed his views upon the merits of the appeal and concluded that upon consideration of those issues also, he would dismiss the appeal.

80 In my opinion the appeal now brought to this Court from that decision is moot. Apart from quashing the decision of the Magistrate made under s 101D, if indeed it be a decision within the meaning of the Justices Act so as to ground an appeal, no consequential order could now be made for the same reason as that I have expressed in respect of the application for a writ of mandamus. His Worship is now functus officio.

81 In those circumstances, in my view, it would be inappropriate and undesirable for this Court to address the issues raised by the appeal against the decision of Steytler J, both as to the competence of the appeal to his Honour and as to the merits of that appeal, beyond the need to address the issues in the context of the application for the writ of certiorari. I respectfully agree with Wallwork J that the jurisdictional error having been identified, it is appropriate that that issue be dealt with in the context of the application for prerogative relief. I too would dismiss the appeal, but think it unnecessary to express any view upon the correctness of the decision of Steytler J.

82 As to what, if any, further relief can or might now be granted to the applicant, I note that Kennedy J would invite further submissions and Wallwork J, while accepting that proposal, has referred to the possibility that this Court might order that the learned Magistrate reconsider the application in accordance with the reasons of this Court. His Honour notes that such an order was made by this Court in Re Robins SM; Ex

(Page 22)

parte WA Newspapers Ltd (1999) 20 WAR 511. As was noted in that case, a similar order was apparently made, or at least foreshadowed, in Re Bromfield; Ex parte WA Newspapers Ltd (1991) 6 WAR 153, 174, 194. Neither of the reports of those cases gives any indication whether the utility of such an order was argued, but each of those cases was at least a case where an opinion which would lead to non-publication was expressed under the Justices Act, s 101D, and in Re Bromfield the Magistrate had actually made an order which he described as a suppression order, a type of order which Malcolm CJ and Rowland J held was within the inherent jurisdiction of the Magistrate conducting a preliminary hearing at common law if the making of such an order was dictated by the exceptional circumstances of the case in the interests of justice.

83 This case provides no occasion for considering the utility of such a procedure adopted by this Court in a case where an order of that kind has been made, or an opinion under s 101D has been expressed, and I would want to reserve my consideration of that issue for an appropriate case.

84 However that may be, I remain firmly of the view that the way in which s 101D is worded makes it clear that the opinion can only be expressed "at any time" while the matter is before the Court of Petty Sessions in the course of a preliminary hearing. Subject to that limitation, the opinion might be expressed in a completely open-ended way, in which case (although of course this was not argued before us), it might never be possible to publish without committing a contempt of the Supreme Court unless a means might be found to end the operation of the order.

85 Alternatively, the opinion might be expressed (and it should desirably be expressed) in restricted terms for a limited period, and with respect to only certain aspects of the evidence or the proceedings as dictated by the interests of justice, recognising the need otherwise to preserve the fundamental tenet of the administration of justice that there should be no interference with the "open court" principle, exposing the proceedings to public scrutiny, except to the extent that the interests of justice dictate a contrary course: Re Bromfield; Ex parte WA Newspapers Ltd.

86 In this case, however, no opinion under s 101D having been expressed at the time when the section confers power to do so, in my opinion none can now be formed and expressed under that section. Similarly, the order made by this Court suppressing publication of the relevant evidence was limited to the final disposition of the appeal or

(Page 23)

further order which might set some other termination date. If the appeal is, as I think appropriate, dismissed, it would be inappropriate for this Court to make any further order of that kind in the context of the grant of a writ of certiorari, which involves no consideration of the merits of the case, but only the question of jurisdictional error.

87 If there is to be any further restriction upon publication, it must in my opinion be derived from an order made under some different power than any generated by, or appropriate to be exercised in, these proceedings. It is unnecessary for present purposes for consideration to be given to the source of such a power; to whether, for example, upon the committal of the accused persons for trial, an application could be made under the Criminal Code (WA), s 635A to the court of trial, before, during, or (even more problematically) after the trial has been held.