Tahmindjis, A.J. v Brown, B.R. & anor Cassimatis, N. v Brown, B.R. & anor Moss, T.E. v Brown, B.R. & anor Castanos, J.N. v Brown, B.R. & anor Tahmindjis, A.J. & ors v Brown, B.R. & ors

3ds

IN THE FEDERAL COURT OF AUSTRALIA )

)

NEW SOUTH WALES DISTRICT REGISTRY

)

- No.Gl26 of 1983

)

GENERAL DIVISION

. . . -

- .

ALEXANDER JOHN TAHMINDJIS

Applicant

.	-	m:
BRUCE RAYMOND BROWN

First Respondent

J.A.HAYNES

Second

Responent

JUDGE:

DATE OF ORDER:

WHERE MADE:

THE COURT ORDERS THAT:

1. The order for committal the subject of these proceedinss be set aside.

2. .	The matter be referred to the first respondent: .

(a) to

discharge

the

applicant

respect

the

. l

information and charge aaainst him.

(b) with the consent of the parties to make

such order

or orders for costs of the proceedings before him

or any part or parts thereof as to him seems

proper.

(c)	the consent of the parties as to him seem proper

alternatively to (b) to take such other steps with the costs of the proceedings or any part or parts thereof as may be fitting.

3. The second respondent pay the costs of the applicant of the proceedings in this Court.

There

rder

the

costs

of the

first

respondent of proceedings in this Court.

Liberty

apply.

N O T E :

Settlement and entry of orders is dealt

wi h in

Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA 1

)

NEW SOUTH WALES DISTRICT REGISTRY	)	No.G394 of 1984
)
GENERAL DIVISION	)

:	-	B
NICHOLAS CASSIMATIS

Applicant

BRUCE RAYMOND BROWN

First Respondent

P m

LAMB

Second Respondent

MINUTE OF ORDER

JUDGE :	FOX J.
DATE OF ORDER:	30 JULY 1985
WHERE MADE:	Sydney.
THE COURT ORDERS THAT:

1. The order for committal the subject of these proceedings be set aside.

2. The matter be referred to the first respondent:

2 .

(a)

discharge

the

applicant

in respect

the

information and charge against

him.

(b)

with the consent of the parties to make such order

orders for costs of the proceedings before him

any

part or parts thereof as to him seems

proper.

(b)

to take such other steps with

the consent of the parties as to him seem proper

with a view to havinq such order or orders made for

the costs of the proceedings or	any part or parts
thereof as map be fitting.

3 .	The second respondent pay the costs	of the applicant	of
the proceedings in this Court.

There be no order

the

costs of the

first

respondent of proceedings in this Court.

5. Liberty to apply.

NOTE :

Settlement and entry of orders

is dealt with in Order

of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA )

)

NEW SOUTH WALES DISTRICT REGISTRY )

No.G416 of 1984

)

I ,

GENERAL DIVISION	)	!
BETWEEN:
THOMAS ERVIN MOSS

Applicant

BRUCE RAYMOND BROWN

Respondent

A .

WELLS

Second Respondent

MINUTE OF ORDER

JUDGE :	FOX S.
DATE OF ORDER:	30 JULY 1985
WHERE MADE:	Sydney.
THE COURT ORDERS THAT:

I	1.	"he order for committal the subject of these proceedings
be set aside.
2.	"he matter be referred to the first respondent:

2 .

(a) to discharge the applicant

respect

the

information and charge against

him.

(b)	or orders for costs of the proceedinqs before him

with the consent of the parties to make such order proper.

(c)

alternatively to (b) to take such other steps with

the consent of the parties as to him

seem proper

with a view to having such order or orders made for

the costs of the proceedings or any part or parts

thereof as may be fitting.

3 .

The second respondent pay the costs

of the applicant of

proceedings

the

Court.

in this

There

be no order

the

costs

the

first

respondent of proceedings

in this Court.

Liberty

apply.

NOTE :

Settlement and entry of orders is dealt with in

Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

)

NEW SOUTH WALES DISTRICT REGISTRY	)	No.GlO1 of 1985
)
GENERAL DIVISION	)

BETWEEN:

JOHN NICHOLAS CASTANOS

Applicant

BRUCE RAYMOND BROWN

First Respondent

C. S .FOSTER

Second Respondent

MINUTE

O R D E R

JUDGE :	FOX J.
DATE OF ORDER:	30 JULY 1985
WHERE MADE:	Sydney.

THE COURT ORDERS THAT:

1. The order for committal the subject of these proceedings be set aside.

2. The matter be referred to the first respondent:

(a) to

discharge

the

applicant

respect

of the

information and charues against him.

(b)

with the consent of the parties to make such order‘ or orders for costs of the proceedings before him

any

part or parts thereof as to him seems

proper.

such other steps with

the consent

of the parties as to him seem proper

with a view to having

such order or orders made for

the costs of the proceedings or any part or parts

thereof as may be fitting.

The second respondent pay the costs of the applicant of to one counsel.

4 .

There

rder

the

costs

of the

first

respondent of proceedings in

this Court.

Liberty

apply.

NOTE :

Settlement and entry of orders is dealt with in Order

of the Federal Court Rules.

IN THE FED=

COURT OF AUSTRALIA 1

)

NEW SOUTH FW;ES DISTRICT REGISTRY	)	No.Gl26 of 1983 No.G394 of 1984
GENERAL DIVISION	1	No.G416'of 1984 No.Gl01 of 1985

:	-	B
ALEXANDER JOHN TAHMINDJIS
NICHOLAS CASSIMATIS
THOMAS ERVIN MOSS
JOHN NICHOLAS CASTANOS

Applicants

BRUCE RAYMOND BROWN

First Respondent

AND:

J.A. HAYNES

PFPER LAMB

WELLS

C.S. FOSTEX

Second Respondents

CORAM: FOX J.

m: 30 JULY 1985

FTJRTIER REASONS FOR ORDERS

FOX J.

On this matter coming on for further argument before me

10 July, additional evidence was

tendered, relative to the

course of proceedings before the magistrate. and it was stated

counsel for the informants that it was not intended to adduce

further evidence in the Local Court in support of the charges.

Letters from the Deputy Director of Public Prosecutions were

tendered, suggesting three options were open to the Director:

(a)

to take no further steps in the prosecution, (b)

to begin fresh

committal proceedings or

( c ) to proceed by way of ex-officio

indictment. Course (b) was not favoured. The applicants were	,
invited to make submissions.

1 took the burden of

the submissions on Behalf of the

informants to be that, havina in mind my earlier findinus, the

matter should not be remitted

the magistrate. but, the

informations still being on foot. it was

a matter for the Local

Court as to how the charges therein, and the subsequent charues. should be resolved. For the applicants. it was submitted that

the matters

now before me should be remitted. probably to the

same

magistrate,

with

directions

to the

effect

that

the

applicants should be discharged. and costs assessed, as seemed

appropriate. It was agreed that

in view of the amendments to the

Justices Act,

1902 made bp ACE

No. 1 of 1985, it was a ~ t

appropriate to fizcide a question originally posed concerning the

correctness of

the mauistrate’s view. or his application. of

parte McOuillan (1932) 49 W.N.

(N.S.A.) 87.

The

discretion

given

para.l6(l)(b)

the

Administrative

Decisions

(Judicial Review) Act 1977 has been

5 .

relied upon by the applicants. It gives the Court power to make

"an order referring the matter to which the decision relates to

the person who made the decision for further consideration,

subject to such directions as the Court thinks fit." This would

involve references back to the first respondent. The difficulty

here is that it was what he did that led

to the invalidity of the

committal orders, and

his conduct was not a matter of

a casual

slip or oversight, but something

which continues to affect his

suitability to deal with the particular cases,

so far at least as

concerns any exercise

of judgment on matters of substance.

the other hand, the case was one

o f such proportions that it is

quite unreasonable to expect that it can be commenced afresh,

even in relation to the present applicants. Some consent could

be forthcominu which would facilitate this course, but the

present indications are firmly against

such a possibility.

Paragraph

16(l)(d)

has

also

been

relied

upon.

enables directions to be uiven to a

partv.

It seems to me that the most satisfactory course is to

refer the matters

to the learned maaistrate who decided them,

with z direction that he discharue	the applicants, defendants
before him.

Sub-section 41A(1) of the Justices Act deals with costs

as follows:

"41A. (1)

The Justice or Justices making any order

discharging a defendant as to the information then under

inquiry may in and by such order adjudue that the

informant shall pay to the clerk of the court to be by

him paid to the defendant such costs as to	such Justice
or Justices seem just and reasonable."

There is no indication in the present case that the informants

will agree

any order for costs which is acceptable to the

applicants.

The

situation

would

then

arise

that

the

first

respondent could not deal with costs, and if he effected the

discharge, no

other magistrate could. On the other hand, if

secured another magistrate to take over the proceedings, for the

purposes of discharge and costs, that magistrate would be at a

serious disadvantage, and would in any event pursue such course

as to him seemed proper.

He is not a party to these proceedings,

and I cannot give

him directions.

could conceivably resolve

the

dilemma by directinu

that the first respondent decide the matter

of costs. He is of

course the person equipped to do

so.

I do not think however

that

I can vouchsafe dispensations in this way.

In the interests of the administration of justice, what

most needs to be done

is to bring the proceedings before the

Local Court to

an end. Costs, although considerable in amount,

are secondary, and the applicants have plainly enough been at

risk with respect

o obtaining an order for

them since the ground

of natural justice was pursued. They would certainly seem,

justice, to be entitled to costs solely or mainly related to the

5 .

general conspiracy charge, because their co-defendants who have

been discharged received

sums for their costs.

The most satisfactory course

that I order that the

matters be referred to the learned magistrate with directions

(a)

that he discharge the defendants in respect of the information

and charges before

him and (b) that. with the consent of the

parties, he make such order for costs of

those proceedings, or

any part or parts of them as

to him seems proper. and (c) as

alternative to (b) that he take such other steps with the consent

of the parties as

t o him seem proper with a view to having such

order or orders made for costs of the proceedings or	any part or
parts thereof as may be fitting.

I give liberty to apply.

[1985] FCA 365

30 Jul 1985