The Queen v Parkes Rural Distributions Pty Ltd

[1987] FCA 463

Re: THE QUEEN
And: RICHARD JOHN BALFOUR; THE STATE OF NEW SOUTH WALES
Ex parte: PARKES RURAL DISTRIBUTIONS PTY LIMITED
No. NSW G373 of 1987
Administrative Law

COURT

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION
Wilcox J.(1)

CATCHWORDS

Administrative Law - Certificates regarding place of sale of petroleum products - Motions to dismiss proceeding as an abuse of process - Previous determination of Supreme Court of New South Wales regarding the validity of one of the two impugned certificates - Effect of failure of prosecutor previously to rely upon grounds open to it and now sought to be relied upon - Validity of the second certificate not a question before the Supreme Court but relevant only to the validity of the first certificate.

States Grants (Petroleum Products) Act 1965 ss.3, 4, 5 and scheme made thereunder c11.A4 and E2.

Petroleum Products Subsidy Act (NSW) 1965 ss.6, 7, 8, 10. Administrative Decisions (Judicial Review) Act 1977 s.9.

HEARING

SYDNEY

#DATE 27:8:1987

Counsel for the Prosecutor: Mr A A McDevitt

Solicitors for the Prosecutor: Robert Hall & Co.

Counsel for the First Respondent: Mr G I O Rowling

Solicitor for the First Respondent: Australian Government Solicitor

Counsel for the Second Respondent: Mr K Mason QC with Mr D Cowan

Solicitor for the Second Respondent: Mr H K Roberts (Crown Solicitor for New South Wales)

ORDER

The Order To Show Cause be discharged and the principal proceeding be dismissed.

The prosecutor pay to each of the respondents the costs incurred by such respondent in connection with both the principal proceeding and the motion of that respondent to dismiss that proceeding as an abuse of the process of the Court.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

JUDGE1

This case arises out of the interaction of the Commonwealth and State legislation providing for the provision of Commonwealth subsidies to offset the costs of distribution in country areas of petroleum products.

1. The relevant Commonwealth Act is the States Grants (Petroleum Products) Act 1965. Section 3 of that Act makes "payable to each State, by way of financial assistance, amounts equal to the amounts expended by that State in making payments to distributors of eligible petroleum products in accordance with a scheme formulated by the Minister in relation to that State for the purposes of this Act". Section 4 authorizes the Minister to formulate, to amend and to revoke schemes in relation to each State. The content of schemes is partly prescribed by s.5.

2. In the same year that the Commonwealth Act was passed the New South Wales Parliament enacted the Petroleum Products Subsidy Act 1965. Section 4 of that Act makes payable, in accordance with the Act, to registered distributors of eligible petroleum products, amounts ascertained in accordance with the scheme. Section 6(1) empowers the Minister to appoint persons to be authorized officers for the purposes of the Act; sub-section (2) providing that an authorized officer may be an officer of the Commonwealth. Section 7 provides for the making of claims by registered distributors of eligible petroleum products. The consideration of such claims is dealt with by s.8 which relevantly provides:
   
   

"8. (1) An authorized officer shall examine each claim for a payment under this Act made to him and shall, if he is satisfied that an amount is payable to the claimant, give a certificate in writing to that effect.

(2) ...

(3) Where an authorized officer is satisfied that an amount paid to a person under this Act (including an amount paid by way of an advance) was not payable to that person or exceeded the amount that was payable to that person, he may give a certificate in writing that the amount paid or the amount of the excess, as the case may be, is repayable by that person to the State."

1. Where a certificate is given under s.8(1), the Minister is obliged by s.9 to authorize payment of the specified amount. Section 10 provides that:
   
   

"10. Where an authorized officer gives a certificate under section 8(3) that an amount is repayable by a person to the State, the person is liable to repay that amount to the State and such amount may be recovered in a court of competent jurisdiction as a debt due to the State."

1. The current scheme under the Commonwealth Act, relating to New South Wales, commenced to operate on 15 June 1978. This scheme defines the term "authorized officer" as an officer of the Commonwealth Department administering the Commonwealth Act who is authorized under the relevant State law.

2. A central aspect of the scheme is the determination of the place of sale of eligible petroleum products. The place of sale determines not only whether a particular sale attracts any subsidy but also the amount of any subsidy. In that connection cl.A4 casts important responsibilities upon authorized officers. Relevantly the clause provides:
   
   

"A4. - (1) Subject to sub-clause (2) and (3) of this clause, the place or date of a sale shall for the purposes of this scheme be the place or the date of sale specified in the prime document of the sale.

(2) ...

(3) An authorised officer shall -

(a) if upon investigation of a sale he is satisfied that the actual place or date of the sale was not the place or date specified in the prime document; or

(b) if no place or date for the sale is specified in the prime document,

give a certificate stating the place at which and the date on which in his opinion the sale took place, and the sale shall be regarded as having taken place for the purposes of this scheme at the place and on the date stated in the certificate."

The term "prime document", in connection with a sale by a registered distributor, means the invoice issued by the distributor. Thus the effect of cl.A4 is that, prima facie, the place of sale is the place specified by the invoice. However, an authorized officer may, after investigation, substitute a different place; which place shall be adopted for the purpose of determining subsidies under the scheme.

1. Part B of the scheme deals with the products which it covers. Part C relates to the registration of distributors and Part D to claims. Part E, which deals with payments, provides for the giving of certificates by authorized officers. In the first instance these are to be provisional only but cl.E2(6) stipulates that, after the expiration of two years from the date when a claim is made, "no adjustment shall be made or certified under this clause to the amount certified as payable in connexion with the claim except an adjustment for the recovery of an overpayment arising out of fraud in relation to the claim or to payment under the claim".

2. The Schedule to the scheme sets out the amounts of subsidy, in cents per litre, payable in respect of specified petroleum products at specified non-metropolitan places in New South Wales and in the Australian Capital Territory.

3. The applicant, Parkes Rural Distributions Pty. Limited, is a company controlled by Mr Leon Laidely. During the period 1980-1982 the company was a registered distributor under the Commonwealth scheme and, therefore, a person eligible to receive benefits under the State Act at the eventual expense of the Commonwealth. Between June 1980 and October 1982 the company submitted monthly claims for subsidies pursuant to the scheme. These claims were accepted, and benefits were paid, in respect of the period to June 1981. However, it appears that, about that time, officers of the Bureau of Customs (as the Australian Customs Service was then called), which organization administered the scheme, became suspicious about some of the claims. No certificate has been issued entitling the applicant to payment in respect of any claims lodged in connection with the period July 1981 to October 1982.

4. In late 1981 certain investigations were undertaken by Customs officers, including the first respondent, Richard John Balfour. Mr Laidely was interviewed on several occasions. The sufficiency of the investigation, and of the interviews, is a matter which the applicant seeks to contest in this proceeding. A number of informations were laid by Mr Balfour alleging offences against s.15(2) of the State Act. That sub-section creates various offences arising out of the obtaining of benefits by fraud. Some of the informations have been disposed of; in other cases proceedings are still pending.

5. On 2 February 1982 a certificate was issued under s.8(3) of the Petroleum Products Subsidy Act by Mr E J Glasson, an authorized officer. The certificate stated that the amount paid to Parkes Rural Distributions under the Act in respect of claims between April 1980 and June 1981 exceeded the proper amount payable by $152,317.70. The company sought to challenge the decision of Mr Glasson to issue this certificate under the Administrative Decisions (Judicial Review) Act 1977. However, the High Court of Australia held that Mr Glasson's decision was not reviewable under that Act as it was not "a decision under an enactment" within the meaning of s.3(1) of that Act, i.e. a decision under a Commonwealth enactment. The High Court decision, reported in 155 CLR 234, was announced on 20 August 1984.

6. On 13 November 1984 a second s.8(3) certificate was issued; this time by Mr Balfour. The certificate was intended to supercede Mr Glasson's certificate. Mr Balfour certified for a smaller repayable amount, namely $134,065.27. However, Parkes Rural Distributions was also unwilling to accept the accuracy of this certificate. The company commenced proceedings in the Supreme Court of New South Wales challenging the validity of both certificates. These proceedings were heard by Hunt J. who, on 10 July 1985, dismissed the company's summons.

7. In his certificate under s.8(3) Mr Balfour itemised each delivery in connection with which an excessive payment was said to have been made. The reasons set out in the certificate show that, in a large number of cases, Mr Balfour concluded that the load had not been sold at the place claimed on behalf of Parkes Rural Distributions but at some other place. The result of such a conclusion was that, pursuant to the Schedule to the scheme, the load would attract either no subsidy or a subsidy less than that which had been claimed. In particular, many sales claimed by the prosecutor to have been made from Parkes, in connection with which a subsidy would be payable, were found by Mr Balfour to have been made from Leppington, sales from which place attracted no subsidy.

8. Shortly prior to the hearing before Hunt J. it was apparently realized that cl.A4(1) of the scheme presented a difficulty to Mr Balfour's case. As already noted, the effect of that sub-clause was that, unless there was issued a certificate under cl.A4(3), the place of sale was deemed to be the place specified in the invoice of Parkes Rural Distributions. So, on 25 June 1985, a certificate was issued by Mr Balfour under cl.A4(3) of the scheme, in the following terms:
   
   

"I, RICHARD JOHN BALFOUR, an Officer of the Australian Customs Service and an authorised officer under Section 6 of the Petroleum Products Subsidy Act 1965 (NSW), having investigated the sales for which claims of subsidy were made by Parkes Rural Distributions Pty. Limited for the months of April 1980 to June 1981 as described in the Schedule annexed hereto, and being satisfied that the actual places of sale were not the places specified in the prime documents, certify pursuant to Clause A4(3) of the above mentioned Scheme that the places at which the said sales took place are those referred to in the said Schedule under the column entitled-

'Place of Sale Subsidy Rate

(Cents Per Litre)'"

There followed the same Schedule as that contained in Mr Balfour's earlier s.8(3) certificate.

1. Hunt J. held, apparently without opposition from the defendants before him, Messrs Glasson and Balfour, that the first s.8(3) certificate -- that given by Mr Glasson -- was invalid because of a failure by Mr Glasson to hear Parkes Rural Distributions in connection with its issue. The real contest before Hunt J. related to the second certificate, the validity of which the defendants maintained. Parkes Rural Distributions pressed several grounds of invalidity. It was said that the Act did not permit the issue of a second certificate, that the second certificate was out of time because it was issued after the expiration of the period of two years specified by cl.E2(6) of the scheme and that the certificate was bad because, in issuing the second certificate, Mr Balfour had denied Parkes Rural Distributions natural justice.

2. Hunt J. rejected each of these arguments. He held that it was open to an authorized officer to withdraw or to amend a certificate and that this was what, in effect, had occurred in connection with the certificate issued by Mr Balfour. His Honour held that cl.E2(6) did not apply because there was evidence available to Mr Balfour which, if accepted by him, enabled him to find that Parkes Rural Distributions had made the claims knowing them to be false. In connection with the claim of denial of natural justice, Hunt J. examined the history of the investigation undertaken by Mr Balfour. He found that Parkes Rural Distributions "was given sufficient notice that both the accuracy of the places specified in its invoices as the place of sale and, in some cases, the existence of the sale itself were under investigation". His Honour went on to deal with the various categories of discrepancies certified by Mr Balfour. In connection with cases where the place was allegedly mis-stated, Hunt J. noted a concession on behalf of the defendants "that not every invoice which is the subject of the s.8(3) certificate was put expressly to the plaintiff", but he commented that "it is clear that Mr Laidely had the same answer to every transaction put to him, and it is accepted by the plaintiff that the same answer would have been given had every invoice in this category been put to it". Similar findings were reached regarding some of the other categories. In other cases his Honour held that the complaint was not made out. In the result, and notwithstanding some criticisms made by his Honour about the procedures adopted by Mr Balfour, Hunt J. rejected the submission that the certificate was vitiated by a failure to comply with the dictates of natural justice.

3. However, Hunt J. did uphold a fourth ground of attack upon the certificate. Parkes Rural Distributions contended that the s.8(3) certificate was invalid because, in relation to the "place" category of discrepancies, it conflicted with the provisions of cl.A4(1); the cl.A4(3) certificate not having been made when it -- the s.8(3) certificate -- was issued. Hunt J. dealt with the matter in this way:
   
   

"I regard the absence of any certificate under cl A4 at the time when the second s 8(3) certificate was issued as fatal to its validity in the circumstances of this case. The second defendant has proceeded upon the basis that the plaintiff's invoices falsely specified the places of sale, but he was not entitled to do so because cl A4 operated to deem those places the correct places of sale in the absence of a certificate to the contrary. The certificate given a few days before the hearing of this action could not be effective to change that state of affairs as at the time when the second s 8(3) certificate was issued.

However, that does not mean that the recent issue of the cl A4 certificate must be ignored. The second s 8(3) certificate remains valid and operative until it is held to be void, and it is only in that situation that that certificate becomes void ab initio ... If I were to hold that certificate to be void upon the single ground that the second defendant was prevented from properly issuing the second s 8(3) certificate because there was no cl A4 certificate in existence at that time, such a cl A4 certificate is now in existence and the second defendant would be bound, in my view, to issue a third s 8(3) certificate in the light of his opinion (a) that the plaintiff had been paid money which exceeded the amount which was in fact payable to it and (b) that the plaintiff's claims for the payment of the subsidy were fraudulent. The undoubted breach of procedure which has been committed by the second defendant in the issue of the second s 8(3) certificate does not give the plaintiff a remedy if it obtains no benefit from the grant of that remedy. As Lord Wilberforce said in Malloch v. Aberdeen Corporation (1971) 1 WLR 1578 at 1595, the courts do not grant prerogative relief where to do so would be to act in vain. See also Lord Reid at 1582, and Cinnamond v. British Airports Authority (1970) 1 WLR 582 at 593."

1. The formal order of Hunt J. was that the plaintiff's amended summons be dismissed with costs.

2. Parkes Rural Distributions appealed to the New South Wales Court of Appeal from this order, but unsuccessfully. Glass JA, who delivered the principal judgment in that Court, expressly agreed with the approach taken by Hunt J. in refusing relief, notwithstanding the defect in the s.8(3) certificate, because of the subsequent issue of the cl.A4(3) certificate. His Honour said:
   
   

"It would be a futility to declare the second s.8(3) certificate void for want of an A4 certificate which preceded it since the A4 certificate which followed it could ground a third s.8(3) certificate. In my opinion relief was properly withheld on this ground. It was urged that in referring to prerogative relief his Honour had overlooked the fact that the summons also sought declaratory relief. However the same considerations would justify the Court in refusing any declaratory relief in the exercise of its discretion, Forbes v. New South Wales Trotting Club (1979) 143 CLR 242 at 281."

1. On 13 June 1986 the State of New South Wales, the second respondent to this proceeding, commenced an action in the Supreme Court of New South Wales seeking to recover from the present applicant the amount certified by Mr Balfour. Parkes Rural Distributions filed a defence to that action, by which it asserts the invalidity of the certificate granted by Mr Balfour. The State of New South Wales filed a Notice of Motion in the Supreme Court by which it seeks to strike out that defence; contending that it is not open to Parkes Rural Distributions to raise any issue regarding validity in that proceeding.

2. Parkes Rural Distributions responded to the Notice of Motion by instituting the present proceeding. Having regard to the decision of the High Court in Glasson, and to its desire to challenge in this Court Mr Balfour's certificate under s.8(3) of the State Act as well as his certificate under cl.A4(3) of the Commonwealth scheme, the company applied under s.39B of the Judiciary Act 1903. On 6 August 1987 an Order To Show Cause was obtained, addressed to Mr Balfour and to the State of New South Wales, requiring those respondents to show cause why injunctions should not be issued prohibiting them from further proceeding in the Supreme Court. The Order also required Mr Balfour to show cause why a Writ of Prohibition should not be issued prohibiting him from issuing any further certificate under either s.8(3) or cl.A4(3) in respect of the period April 1980 to June 1981.

1. Several grounds were set out in the Order To Show Cause but, in opening the matter before me, counsel for the prosecutor indicated that, in substance, three matters were sought to be raised. First, it was said, Mr Balfour was under a duty, before issuing any certificate under s.8(3) or cl.A4(3), to make a proper investigation of the facts and to reach a state of satisfaction that the places of delivery claimed in the invoices were incorrect. This, it was said, he had failed to do; as a result of which he had no jurisdiction to issue the certificates. Secondly, it was contended that the rules of natural justice applied to the task entrusted to Mr Balfour, obliging him to put to Parkes Rural Distributions the allegations about its conduct which were under consideration. It was said that he had neglected to do this. Finally, counsel submitted that Mr Balfour was disqualified from determining the matters committed to him under s.8(3) and cl.A4(3) by reason of his previous involvement with the matter; and, in particular, his role as prosecutor in the criminal cases. Counsel did not go so far as to submit that Mr Balfour was in fact biased but he relied upon the principle that a decision-maker ought not to determine a case if, in all the circumstances, the parties or the public might reasonably suspect that he or she was not unprejudiced and impartial, referring to The Queen v. Watson; ex parte Armstrong (1976) 136 CLR 248. See also Livesey v. New South Wales Bar Association (1983) 151 CLR 288 at pp 293-294 and, in the field of administrative decision-making, The Queen v. Maurice; ex parte Attorney General (N.T.) (Full Court, 13 April 1987, not yet reported).

2. At the conclusion of counsel's opening, and pursuant to notice given by each of them, the two respondents sought the summary dismissal of the proceeding upon the basis that it constituted an abuse of the process of the Court. The submission they put is that the proceeding is futile unless directed towards the validity of the s.8(3) certificate issued by Mr Balfour, the validity of which has already been determined in the Supreme Court. The second respondent also challenges the jurisdiction of the Court to make an order restraining it from proceeding in the Supreme Court. The challenge does not depend upon the fact that this respondent is a State. There is no suggestion that a State is immune from the jurisdiction of the Court. Rather, the submission is that the particular order does not fall within the associated jurisdiction of the Court, given by s.32 of the Federal Court of Australia Act 1976; the argument being that the claim to restrain the prosecution of the Supreme Court action does not arise out of the same substratum of facts as the challenge to the two certificates: see Stack v. Coast Securities (No 9) Pty. Limited (1983) 154 CLR 261.

3. In the present proceeding the prosecutor seeks to challenge the validity of both the s.8(3) certificate given by Mr Balfour on 13 November 1984 and the certificate under s.A4(3) of the scheme which he gave on 25 June 1985. However, the latter certificate has no significance except in connection with the s.8(3) certificate. Where the issue is place of sale, a cl.A4(3) certificate is a necessary pre-condition to a valid s.8(3) certificate imposing a liability for repayment upon the prosecutor. But such a certificate does not itself confer any legal right, or impose any legal obligation, upon any person. It is thus correct to say that, in the final analysis, the present proceeding is aimed at, and only at, the s.8(3) certificate. That point is borne out by the fact that the prosecutor seeks to stay the Supreme Court proceeding, which depends upon the s.8(3) certificate alone.

4. As already mentioned, Hunt J. held that the s.8(3) certificate was defective by reason of the absence of an earlier cl.A4(3) certificate, but he declined to grant relief to Parkes Rural Distributions. Although this was not so clear in earlier times, it is now accepted that, however apparent the defect may be, an administrative decision remains good in law unless and until it is declared to be invalid by a court of competent jurisdiction: see Smith v. East Elloe Rural District Council (1956) AC 736 at pp 769-770, Durayappah v. Fernando (1967) 2 AC 337, Calvin v. Carr (1980) AC 574 at pp 589-590 and Forbes at p 277. The principle is expressed by Wade, "Administrative Law" (5th ed.), at p 314:
   
   

"The truth of the matter is that the court will invalidate an order only if the right remedy is sought by the right person in the right proceedings and circumstances. The order may be hypothetically a nullity, but the court may refuse to quash it because of the plaintiff's lack of standing, because he does not deserve a discretionary remedy, because he has waived his rights, or for some other legal reason. In any such case the 'void' order remains effective and is, in reality, valid."

1. In the present case the position is that the validity of the s.8(3) certificate was litigated before Hunt J. Notwithstanding his Honour's conclusion regarding the significance of the absence of a prior cl.A4(3) certificate, the Supreme Court declined to hold the s.8(3) certificate to be invalid. That decision was upheld on appeal. The result, in law, is the same as if Hunt J. had perceived no defect in the procedure adopted by Mr Balfour. He dismissed Parkes Rural Distributions' challenge to the validity of the certificate, leaving the certificate operative in law.

2. Under these circumstances I think that it is correct to say that what the prosecutor seeks to do in this proceeding is to reverse the effect of the decision made in the Supreme Court. The prosecutor submits that it is entitled to take this course, for two reasons. First, it is said that some of the grounds sought to be advanced in this Court were not advanced before the Supreme Court, so that there has been no ruling on those grounds. But this is not the test. There is here no question of res judicata or issue estoppel; the State of New South Wales was not a party to the proceedings before Hunt J. But the principles developed in connection with res judicata have been applied in the determination of the question whether a second action is an abuse of process: see Regina v. Governor of Pentonville Prison; ex parte Tarling (1979) 1 WLR 1417 at pp 1422-1423. And the High Court -- propounding a more limited principle than that adopted by the Judicial Committee of the Privy Council in Yat Tung Investment Co Limited v. Dao Heng Bank Limited (1975) AC 581 at p 590 -- has applied the principle of estoppel to preclude the bringing of an action which, if it succeeds, will result in a judgment which conflicts with an earlier judgment: see Port of Melbourne Authority v. Anshun Pty. Limited (1981) 147 CLR 589 at p 603. This is such a case. The effect of success in the attack upon the validity of the s.8(3) certificate would be to obtain an order inconsistent with the decision of the Supreme Court declining to declare that certificate to be invalid.

3. It does not appear that there was a contest before Hunt J. regarding the sufficiency of the investigation by Mr Balfour, as such and as distinct from the issue as to natural justice. It seems that no suggestion of bias was then made. But those issues could have been raised and the determination of the Supreme Court against making a declaration of invalidity must be taken to conclude these issues against the present prosecutor. In relation to natural justice, in connection with the s.8(3) certificate, this subject was litigated before Hunt J. without yielding a declaration of invalidity.

4. However, and this is its second point, the prosecutor emphasizes that it wishes also to challenge the validity of the cl.A4(3) certificate; a course which, it says, would not have been available to it in the Supreme Court by reason of the provisions of s.9 of the Administrative Decisions (Judicial Review) Act. That section excludes from the jurisdiction of the State courts, inter alia, the review of any decision given by an "officer of the Commonwealth". The term "officer of the Commonwealth" has, for the purposes of s.9, the same meaning as in s.75(v) of the Constitution. It undoubtedly includes Mr Balfour in his capacity as a certifier under cl.A4(2) of the Commonwealth scheme: see Lane "The Australian Federal System" pp644-650 and cases cited therein. (Whether Mr Balfour acted as an "officer of the Commonwealth" in certifying under s.8(3) of the State Act is a question which it is not necessary to decide. As to that problem see Re Cram; ex parte New South Wales Colliery Proprietors' Association Ltd. (1987) 72 ALR 161, noting also the discussion in Glasson at pp 239 and 240.) It follows that Mr Balfour's decision under cl.A4(3) was excluded by s.9 from review by the Supreme Court. The decision of Hunt J. cannot be taken as concluding against the prosecutor the question of the validity of that certificate.

5. Notwithstanding this circumstance, it must be held that the maintenance of the present proceeding, in relation to the cl.A4(3) certificate, is an abuse of process. The reason for this has already been stated. It avails the prosecutor nothing merely to invalidate the cl.A4(3) certificate. The making of that certificate had no legal significance, except in relation to Mr Balfour's entitlement to issue a s.8(3) certificate based upon sales at places different from those specified in the prosecutor's invoices. As the prosecutor is precluded from taking the ultimate step of impugning the s.8(3) certificate, it is futile for it to take the intermediate step of invalidating the cl.A4(3) certificate. It would be different if the cl.A4(3) certificate had some independent legal effect.

6. It may be thought hard that the prosecutor, who was unable to litigate the validity of the cl.A4(3) certificate in the Supreme Court, should now find the door barred against such a claim by the decision of the Supreme Court. Two answers may be given. First, as a matter of principle, it would have been open to the prosecutor to seek to challenge the cl.A4(3) certificate prior to the decision of Hunt J. It is true that it would have needed to do so in a different court, and for that purpose to obtain an adjournment of the Supreme Court proceedings. But there is no reason to believe that Hunt J. would have denied the prosecutor this opportunity. A successful challenge to the cl.A4(3) certificate would almost certainly have resulted in the s.8(3) certificate being held to be invalid by Hunt J. However, it seems that, at the time of the hearing before Hunt J., it did not occur to anybody that there might be some separate point regarding the validity of the cl.A4(3) certificate. Secondly, and as a practical matter, it is extremely difficult to conceive of any distinction, in terms of the quality of the investigation, compliance with the rules of natural justice and bias, between Mr Balfour's conduct in relation to the s.8(3) certificate and his conduct in certifying under cl.A4(3). Notwithstanding my invitation, none was suggested by counsel for the prosecutor. Exactly the same issues of fact were involved. The same judgments had to be made. The same procedures needed to be followed. The same criticisms of Mr Balfour's conduct -- whatever their weight -- were available in each case. Although my judgment does not depend at all upon this circumstance, there appears to be no injustice to Parkes Rural Distributions in denying it the opportunity to make those criticisms a second time.

7. I conclude that the complaint made by each of the respondents as to abuse of process is valid. It is not necessary to consider the second question raised, on behalf of the State of New South Wales, regarding the extent of the Court's associated jurisdiction. The principal proceeding must be dismissed. The prosecutor must pay the costs of the respondents, both of the motions to dismiss and of the principal proceeding.