Shneider S. v Whitehouse P.J. and Reynolds D.

[1992] FCA 747

I	IN THE FEDERAL COURT OF AUSTRALIA )
VICTORIA DISTRICT REGISTRY

r	GENERAL DIVISION	)
1 No. VG 343 of 1992
B E T W E E N :

STANLEY SHNEIDER

Applicant

- and -

PATRICK JOHN WHITEHOUSE and

DUNCAN REYNOLDS

Respondents

Coram:	Olney J
Place:	Melbourne
Date:	2 October 1992

REASONS FOR JUDGMENT

INTRODUCTION
The application presently before the Court was filed on 14
September 1992. Late on that day the parties appeared before

October 1992, to enable these proceedings to be resolved.

me upon an urgent application by the applicant for an
injunction to restrain the secondnamed respondent (a
Magistrate) from continuing with committal proceedings then
part-heard before him. The proceedings were due to resume on
the following day. For reasons which no longer matter I
refused to grant injunctive relief and in the event, the

committal did not proceed but now stands adjourned to 19

On 14 September 1992 I made orders to facilitate an early hearing and the application came before me for hearing on 21 and 22 September 1992. After detailed argument from both parties, I reserved my decision.

Because of time constraints which are personal to myself it is necessary that the matter be decided promptly otherwise the resumption of the committal proceedings may be jeopardised.

!

!

In the reasons for decision which follow I have for the most part confined my comments to brief statements of the conclusions I have reached in relation to the various issues raised. Given the luxury of more time I would have referred in detail to the many judicial authorities cited by counsel. That I have not done so is not an indication that I have ignored those authorities but rather reflects my desire to state promptly and concisely the conclusions which I have arrived at.

BACKGROUND

The applicant has been charged with 10 indictable offences against the Companies (Victoria1 Code involving alleged breaches of sections 129(5), 229(1)(b), 229(4) and 551(1).

Nine of the offences charged are said to have been committed

on or about 19 July 1989 and one, between 1 June and 31

October 1989. The informations were filed in the Magistrates'

Court at Melbourne on 6 February 1992. The firstnamed

respondent, in the capacity of a delegate of the Australian

._

Securities Commission (ASC) is the informant and has standing by virtue of section 66(2) of the Corporations (V ic to r ia ) A c t 1990.

At the commencement of committal proceedings before the

secondnamed respondent (the Magistrate) counsel for the

applicant challenged the admissibility of a record made of an
interview between the applicant and one Cook (an officer of

I

the ASC) on 21 May 1991 on the ground that it had not been	!
made voluntarily.

The Magistrate agreed to determine the admissibility of the record of interview by way of voir dire at the outset of the committal proceedings and before counsel for the informant had opened the case against the applicant. Evidence was taken on 7, 8 and 9 September 1992 and on 11 September 1992 the Magistrate ruled that the record of interview was admissible in evidence.

THE APPLICATION

By application filed on 14 September 1992 and amended by leave on 22 September 1992 the applicant seeks a review o f the Magistrate's ruling on the voir dire and in particular seeks an order setting it aside, and other consequential relief.

Neither the original nor the amended application indicates the

jurisdictional basis upon which it is asserted that this Court

can entertain the application for review. Initially it was

..

argued that the ruling is reviewable under the Administrative Decisions (Judicial Review) Act 1977 (Commonwealth) (ADJR Act) and although I do not; understand this claim to have been abandoned, in material filed with the amended application it is said that pursuant to section 4(1) of the Jurisdiction of Courts (Cross-Vesting) Act (Vic.) (the Cross-Vesting Act) the applicant proposes to invoke the jurisdiction of the Supreme Court of Victoria to grant relief by way of judicial review in the nature of certiorari.

COMPANIES (VICTORIA) CODE

At the time of the alleged offences the Com~anies (Victoria1

Code was in force in Victoria by virtue of the Companies

(Application of Laws) Act 1981 (Vic.) and despite the coming into operation of the Cor~orations Law of Victoria on 1 January 1991, the Code (as part of the former co-operative scheme laws) continues to operate of its own force in relation to matters arising before that date (Corporations (Victoria) Act, s. 85(1)).

The offences charged against the applicant relate to matters	arising before 1 January 1991 and are therefore to be dealt
with under the Com~anies (Victoria) Code. They are indictable offences against the statute law of Victoria.
MAGISTRATES' COURT ACT 1989 IVIC. I (MCAI Subject to certain irrelevant exceptions, a committal proceeding must be held in all cases in which a defendant is charged with an indictable offence (MCA S. 56(1)) and such committal proceeding must be conducted in accordance with Schedule 5 to the Act (MCA S. 56(2)).
Schedule 5 provides for alternative means of conducting committal proceedings and there is no evidence before me as to whether or not in the present case the hand-up brief procedure has been used. Whether it has or not, the Court (defined as the Magistrates' Court of Victoria) may rule as inadmissible the whole or any part of a statement or an exhibit or document tendered in evidence (MCA Schedule 5, clauses 5(6), 6(3)).
A party to a criminal proceeding in the Magistrates' Court may
appeal to the Supreme Court of Victoria on a question of law from a final order of the Court in that proceeding but no appeal lies in respect of a committal proceeding (MCA S. 92(1)).
Quite apart from the question of whether a ruling on the
admissibility of evidence given in the course of proceedings can be appealed against whilst the proceedings are still
pending, the applicant has no avenue of appeal under Victorian law from the Magistrate's ruling the subject of these proceedings, it being a ruling in respect of a committal proceeding.
JURISDICTION OF COURTS (CROSS-VESTING 1 ACT 19 8 7 /VIC .l
By operation of subsection 4(1) of the Cross-Vesting Act, the Federal Court has and may exercise original and appellate jurisdiction in respect of matters in which the Supreme Court of Victoria has jurisdiction otherwise than by reason of a law of the Commonwealth or of another State but not with respect to criminal matters (S. 4(5)(a)).

. -

There is no question of the Court exercising appellate

jurisdiction in this case as no appeal ,lies under Victorian law but the question does arise as to whether an application l

!

for an order in the nature of certiorari in relation to a pending committal proceeding in the Magistrates' Court is in respect of a criminal matter.

In my opinion the literal meaning of the words "with respect

to criminal matters" clearly suggests that an application for

an order in the nature of certiorari to quash a ruling given

in the Magistrate's Court to admit evidence in a committal

proceeding is an application with respect to a criminal

matter. There is I believe ample judicial authority to

support that conclusion. Furthermore, the fact that Order 56

of the Rules of the Supreme Court, which regulates the exercise of the Supreme Court 'S jurisdiction to grant any relief or remedy in the nature of certiorari and other matters previously the subject of certain prerogative writs, is in Chapter I of the Rules entitled the General Rules of Procedure in Civil proceedings does not in my view affect the essential criminal nature of the matter in issue.

JUDICIAL REVIEW IN THE NATURE OF CERTIORARI
There is no question as to the jurisdiction of the Supreme

Court of Victoria to make orders in the nature of certiorari.

In the event that I am wrong in my opinion that a proceeding

in the Supreme Court seeking an order in the nature of

certiorari in relation to committal proceedings is a

proceeding in respect of a criminal matter for the purposes of

!

the Cross-Vesting Act, I am nevertheless of the view that in !

such circumstances certiorari does not lie.

Committal proceedings are ministerial or executive in their nature, they are not judicial. (Phelan v Allen (1970) VR 219.)

In Ex Darte Cousens: Re Blacket (1946) 47 SR (NSW) 145 at p. 146 Jordan CJ described the functions of justices conducting committal proceedings as follows:

In relation to charges of offences which they have no

jurisdiction to try and dispose of, their authority is not

judicial; they do not determine whether the accused is guilty or not guilty; they consider the evidence adduced against him, and if they think there is enough to justify putting him upon his trial, they direct that he be held, or bailed, for trial by a court which has jurisdiction to try him. This is essentially an executive and not a judicial function, and although magistrates have been exercising this authority for nearly four hundred years, no instance can be found of a superior court having interfered with a magistrate by certiorari or prohibition in his exercise of this function ...

Ex parte Cousens was followed by the New South Wales Court of Appeal in Ex Darte Coffev: Re Evans and another (1971) 1 NSWLR

434 and has been referred to in a number of other authorities.

The weight of judicial authority is that by their nature, committal proceedings are not amenable to prohibition and certiorari. In the circumstances, assuming that this Court' may in these proceedings exercise the jurisdiction of the Supreme Court of Victoria in relation to its power to make orders in the nature of certiorari, the application must fail.

l

ADMINISTRATIVE DECISIONS (JUDICIAL REVIEW) ACT 1977 (ADJR)

A person aggrieved by a decision to which the ADJR Act applies

may apply to the Federal Court for an order of review in

respect of the decision on any one or more of the grounds

specified in subsection 5(1). A decision to which the Act

applies is defined (subject to certain irrelevant exceptions)

as a decision of an administrative character made, proposed to

be made, or required to be made under an enactment.

Relevantly "enactment" means an Act of the Parliament of the

Commonwealth (ADJR S. 3(1); Acts Interpretation Act 1901 s.

38(1): see also Re Kearney: ex Darte Ja~ananaka 52 ALR 31).

The Commonwealth administrative laws (which include the ADJR Act) apply as laws of Victoria in relation to any act, matter or thing arising under or in respect of "the applicable provisions of Victoria" (a term defined to include inter alia the Cor~orations Law of Victoria but not the Com~anies

jvictoria) Code)) as if those provisions were laws of the Commonwealth and not laws of Victoria (Corporations (Victoria)

Act S. 35(1)).

The committal proceedings in question, and the ruling of the Magistrate on the voir dire do not arise under or in respect of any of the applicable provisions of Victoria to which the

ADJR Act is made to apply.

In my opinion this Court does not have jurisdiction by virtue

I

of the ADJR Act to entertain an application to review the

' !

ruling the subject of these proceedings.

It is unnecessary to consider whether the Magistrate's ruling is a "decision" in the meaning of that term in the ADJR Act, nor is it necessary to consider whether as a matter of discretion, it would be appropriate to order the review of such a ruling.

CONCLUSION

For the reasons which have been expressed above it is my

opinion that the applicant is not entitled to the relief	sought.
I have not canvassed the arguments advanced in relation to the
issue of whether the Magistrate erred in law in ruling as he did. In my view, that is not a question which this Court is competent to consider on the present application.
The application will be dismissed.

I certify that this and the

preceding 9 pages are a true copy of the Reasons for Judgment of the Honourable Mr Justice Olney

s i a t : Jm

-

Dated:  2 October 1992

Mr P. O'Callaghan QC an Mr J. Hayden (instructed by Roth
Warren) appeared for the applicant.

Mr M. Shannon QC and Mr D.B. Maguire (instructed by the Commonwealth Director of Public Prosecutions) appeared for the firstnamed respondent.

' !

!

The secondnamed respondent did not appear.

Date of Hearing:	21 and 22 September 1992
Place:	Melbourne
Date of Judcrment:	2 October 1992