Steel v McGuire

[1996] HCATrans 200

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth  No P33 of 1995

B e t w e e n –

ERIC MILTON STEELE

Applicant

and

MICHAEL JOSEPH McGUIRE

Respondent

TOOHEY J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT PERTH ON THURSDAY, 1 AUGUST 1996, AT 9.30 AM

Copyright in the High Court of Australia

MR R.K. WILLIAMSON:   I appear for Mr Steele, the applicant.

HIS HONOUR:   Mr Williamson, the Deputy Registrar holds, or rather I hold a certificate from the Deputy Registrar which reads:

I have been informed by the Office of the Crown Solicitor for Western Australia, the solicitor for the respondent in the above-named matter, that the respondent does not wish to be represented at either the hearing of the application for special leave to appeal or at the hearing of the application for vacation of the hearing date and will submit to any order of the Court save as to costs.

Now that I take it is a reference to Mr McGuire, the Magistrate.

MR WILLIAMSON:   Yes.

HIS HONOUR:   Now, what is the position of the Commissioner of Police in this matter?  Can you assist me?  The Commissioner of Police is not a respondent.

MR WILLIAMSON:   No, but my understanding is that the State Crown Solicitor will seek to intervene at the hearing of the application for special leave.

HIS HONOUR:   But not at this stage.

MR WILLIAMSON:   That is correct, sir.

HIS HONOUR:   Yes.

MR WILLIAMSON:   I have been told that the State Crown Solicitor will not intervene at this stage.

HIS HONOUR:   I assume this all comes about really because of the form in which the proceedings came before the Full Court by way of prerogative writ.

MR WILLIAMSON:   Yes, your Honour.

HIS HONOUR:   Is there not provision for an ordinary right of appeal from a decision of the Magistrate under the Firearms Act?

MR WILLIAMSON:   There is not, your Honour.

HIS HONOUR:   What, the provisions of the Justices Act do not operate, do they?

MR WILLIAMSON:   That is correct, your Honour, yes.

HIS HONOUR:   Do you mean because that Act is excluded or simply because the language of the appeal provisions is not wide enough to cover a decision under the Firearms Act?

MR WILLIAMSON:   The latter is correct, sir, yes.  There is an administrative proceeding in front of the Magistrate, whereas the Justices Act only refers to judicial proceedings.

HIS HONOUR:   Because the relief sought in the application for special leave to appeal is in paragraph A, or rather calls upon the respondent to show cause why a writ of certiorari should not be issued against the respondent to remove him to the court.  "The decision delivered by him" - well, I understand that, and then it goes on in paragraph B:

A writ of mandamus should not be issued against the respondent directing him to exercise according to law the powers and perform the duties conferred upon him by virtue of section 22.

And that again, I take it, is on the basis that, as you just explained it, the Magistrate is performing an administrative rather than a judicial function.

MR WILLIAMSON:   Yes, your Honour.

HIS HONOUR:   Yes, I see.  All right.

MR WILLIAMSON:   It makes it all very difficult and complicated but ‑ ‑ ‑ 

HIS HONOUR:   Well, it really means that the Commissioner of Police, who I suppose is effectively the respondent in the sense that it was the refusal of an application initially that led to the proceedings before the Magistrate, somehow does not feature on the papers ‑ ‑ ‑ 

MR WILLIAMSON:   Yes.

HIS HONOUR:   ‑ ‑ ‑ either as a second respondent or in any way apparently.

MR WILLIAMSON:   In the Full Court the State Crown Solicitor sought leave to appear on behalf of the Commissioner, which was not - I did not oppose that and he appeared on behalf of the Commissioner.  In the same way the respondent in the Full Court filed a notice that he was not going to appear by counsel, he was just going to abide by the ‑ ‑ ‑ 

HIS HONOUR:   That is the Magistrate, you mean?

MR WILLIAMSON:   Yes.

HIS HONOUR:   Yes, all right.  Well, having clarified those matters the basis of the application appears from your affidavit.  Is there anything that you wish to add to what is set out there?

MR WILLIAMSON:   No, sir.  It is simply a case that no one is going to be prejudiced.  If anyone is going to be prejudiced by the matter being delayed it will be my client and obviously he does not mind.  There is no prejudice to him, no question of law that needs to be decided urgently, no issue of fact which creates urgency.

HIS HONOUR:   No, perhaps not, although paragraph 8 of your affidavit reads:

The applicant is not concerned about a delay in this matter being decided by this Court.  The firearms concerned are not deteriorating at all, they are being kept by someone who will hold them until this matter is settled.

MR WILLIAMSON:   Yes.

HIS HONOUR:   I am not sure what that means.  I mean, are they unlicensed firearms?

MR WILLIAMSON:   They are being held by licensed firearms dealer who by virtue of his dealers licence can hold them as part of his stock for ever.

HIS HONOUR:   I see, yes.

MR WILLIAMSON:   And that is something that the police are aware of and that is a perfectly satisfactory arrangement from the point of view of all parties.

HIS HONOUR:   All right.  In the ordinary course the availability of a particular counsel is not always a persuasive reason for adjourning a matter or taking it out of the list but in this particular case, there being no objection, it appears, from either from the respondent, which is hardly surprising, or from the Commissioner of Police who in a real sense is the respondent to the proceedings, and for the reasons set out in the affidavit, I am prepared to make the order.  So the order of the Court, Mr Williamson, will be that the - is it in terms of your summons that you seek the order that the date be vacated?

MR WILLIAMSON:   Yes, your Honour.

HIS HONOUR:   Yes, very well.  There will be an order that the date of 9 August 1996 for the hearing of this application for special leave to appeal be vacated.  I think there should be a further order by way of direction, Mr Williamson, that a copy of the transcript be delivered to the Commissioner of Police so that the current state of proceedings is made known to the Commissioner.

MR WILLIAMSON:   Yes, your Honour.

HIS HONOUR:   I am content to take an undertaking from you that you will do that.

MR WILLIAMSON:   I give that undertaking, sir.

HIS HONOUR:   Yes, very well.  So the order itself will be confined to the vacation of the date in question.  Yes, thank you, Mr Williamson, the Court will adjourn.

AT 9.38 AM THE MATTER WAS ADJOURNED
INDEFINITELY