Thomakakis v The District Court of NSW

[1994] HCATrans 71

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
              Sydney        No S38 of 1994

B e t w e e n -

MARIOS THOMAKAKIS

Applicant

and

THE DISTRICT COURT OF NEW SOUTH WALES

First Respondent

REGISTRAR OF THE DISTRICT COURT OF NEW SOUTH WALES

Second Respondent

Application for special leave
  to appeal

MASON CJ
DEANE J
TOOHEY J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 14 OCTOBER 1994, AT 12.19 PM

Copyright in the High Court of Australia

MR S.R. NORRISH, QC:   May it please the Court, I appear for the applicant in this matter with my learned friend, MR P.K. MANSFIELD.  (instructed by McLaughlin & Riordan)

MR C. BIRCH:   If the Court pleases, I appear with my learned friend, MR C. FOTIS, for the second respondent.  (instructed by the Crown Solicitor for New South Wales)

MR NORRISH:   Your Honours, as a preliminary matter, there is a requirement for an order enlarging time for the filing of the application for special leave to appeal.  The basis of that application on behalf of the applicant is set out at page 66 of the application book under the heading, “Reasons that enlargement of time for making the application for special leave ought be granted”.

MASON CJ:   Is the application for an extension of time opposed?

MR BIRCH:  No, it is not, Your Honour.

MASON CJ:   Very well.  Yes, Mr Norrish.

MR NORRISH:   Your Honours, the special leave issues advanced on behalf of the applicant invite consideration of this Court of what we would respectfully submit are two important legal issues, matters of general legal importance, and they are these.  Firstly, the role and responsibility of a judge sitting as a court in the exercise of powers provided pursuant to the provisions of section 4A of the Fines and Forfeited Recognizances Act and also section 13 of the same Act. 

The second major matter for consideration in this application, in our submission, concerns the circumstances in which an order in the nature of certiorari ought be made or ought be available where an error of law is identified and perhaps what is an error of law such as to warrant a grant of an order of that type.

Your Honours, the Court of Appeal held against the applicant unanimously in relation to what was advanced as the proper construction of section 4A of the Fines and Forfeited Recognizances Act.  The substance of the complaint raised by the applicant in the Court of Appeal is set out at pages 34 and 35 of the application book.  It should be said that the operation of the Fines and Forfeited Recognizances Act and its relationship to the Bail Act and the operation of those Acts are matters of importance in the administration of justice in New South Wales.  The issues raised in this application as litigated before the Court of Appeal had not been considered by a superior court in New South Wales before the claimant’s application was heard by that court.

The provisions of section 4A of the Fines and Forfeited Recognizances Act are set out in the judgment of the President at page 34 of the application book.  The relevance of that provision to the matters before this Court and considered by the Court of Appeal is that section 4A is the relevant provision by which the initial forfeiture of the moneys deposited by the applicant had occurred and was the section that provided Judge McCredie with the necessary powers.

In respect of the judgment of the court so far as the operation of section 4A was concerned, the reasons of the court are set out in the judgment of the President and appear between pages 34 and 39 of the application book.  It is submitted on behalf of the applicant that the Court of Appeal erred in declining to make an order in the nature of certiorari on a number of bases.  The essential reason that the Court of Appeal held that the applicant was not entitled to procedural fairness at the time of the order of forfeiture is set out at page 36 and the top of page 37.

TOOHEY J:   Mr Norrish, your draft notice of appeal rather suggests that the primary attack is made on the basis that the forfeiture order was made without jurisdiction.

MR NORRISH:   Yes.

TOOHEY J:   What does that mean and what is meant by that in relation to this case?

MR NORRISH:   Your Honour, there may be some inelegance in that expression.  What we mean by that is this, that if the judge sitting as a court pursuant to the provisions of section 4A had denied procedural fairness to the applicant and such procedural fairness was required by the terms of the section, then the order of forfeiture made was made without jurisdiction.  Alternatively, we would submit to the Court that it reveals error of law within jurisdiction, which would warrant a grant of an order in the nature of certiorari.

TOOHEY J:   But is it the failure to accord procedural fairness that lies at the heart of the application?

MR NORRISH:   In respect of what is advanced on behalf of the applicant in special leave points (i) and (ii), yes, Your Honour.  In determining whether procedural fairness ought to have been accorded to the applicant, we say two things.  Firstly, the Court of Appeal erred in its construction of section 4A; and secondly, that even if the Court of Appeal was right in its construction of 4A ‑ if we could take Your Honours to the application book at line 30 of page 38 and over to page 39, the President said this:

But the juxtaposition of statutory language, the facility of review on decisions pursuant to s 13, the trend of legal authority in other jurisdictions on analogous provisions, and the practical considerations to which the opponents referred, all suggest that the decision under s 4A is mandatory not discretionary, and formal or administrative, not judicial in character.

If the decision making of a court exercising powers under section 4A is administrative in character, we would respectfully submit to this Court that procedural fairness ought still be afforded to a person in the position of the applicant because of the effect of the order of forfeiture upon the interests of the applicant by reason of the deposited sums of money by him as a surety for bail.

In that regard, if Your Honours please, if I may take the Court to the judgment of this Court in Kioa v West, (1985) 159 CLR 550, particularly in the judgment of the Chief Justice’s judgment commencing at page 571. If I could take Your Honours very briefly to some passages between pages 582 and 585. In dealing with quite different powers, but powers exercised in an administrative context, His Honour said this at 582, point 7 of the page:

It is a fundamental rule of the common law doctrine of natural justice expressed in traditional terms that, generally speaking, when an order is to be made which will deprive a person of some right or interest or the legitimate expectation of a benefit, he is entitled to know the case sought to be made against him and to be given an opportunity of replying to it.  The reference to “right or interest” in this formulation must be understood as relating to personal liberty, status, preservation of livelihood and reputation, as well as to proprietary rights and interests.

At page 583, point 6 of the page, the Chief Justice said:

It has been said on many occasions that natural justice and fairness are to be equated.  And it has been recognized that in the context of administrative decision‑making it is more appropriate to speak of a duty to act fairly or to accord procedural fairness.  This is because the expression “natural justice” has been associated, perhaps too closely associated, with procedures followed by courts of law.

TOOHEY J:   But I am not clear in what respect you say these principles were breached in the present case.

MR NORRISH:   The order of forfeiture was made by a judge sitting in chambers.  That forms a discrete area of complaint as it relates to this particular application.  It is our submission in general terms that when a court makes an order pursuant to section 4A, a person whose interests are affected by the order of forfeiture ought be accorded procedural fairness.

TOOHEY J:   But what do you mean by that, Mr Norrish?  You mean they must be notified of the application?

MR NORRISH:   To be notified of the intention to determine whether forfeiture should be made pursuant to the section and, if possible, to be provided with the opportunity to be heard in relation to any such application or order that might be made by the court.  This application in this respect, putting aside what I have said about the Court of Appeal’s remarks about the function being perhaps administrative, not judicial, in character, is that we would say as a preliminary point or a matter at the threshold that the construction of section 4A by the Court of Appeal was wrong, that the proper construction of section 4A, when one has regard to the reference to a court, the exercise of a discretion which would be exercised by a judge is to suggest, rather than as suggested by the Court of Appeal, that the function performed pursuant to that section is a judicial function and, being a judicial function, is a function either that ought be performed in open court or, allowing for what is provided for in the District Court Rules, if heard in chambers ought not be performed without proper notice being given to the party whose interest is to be affected by the making of the order of forfeiture.

If Your Honours have regard to the District Court Rules, bearing in mind the court in this matter was a district court or a judge sitting in the District Court, the relevant part of the rules is in Part 2 rule 6.  Subrule (1) allows for:

A judge or registrar in chambers may.....give any judgement or decision, or make any order, which he could lawfully give or make in court and which he considers may be properly given or made in chambers ‑

In so far as our special leave points claim that the proceedings ought be conducted in public, it may well be said that the rule would militate against the force of what we have put to this Court.

TOOHEY J:   But there was in fact a hearing subsequently, was there not?

MR NORRISH:   Yes, and there were two significant matters that the President thought supported his construction of section 4A.  One was that there was provision pursuant to section 13 for a hearing to be conducted in respect of whether there ought to be a confirmation of the forfeiture.  We submit to the Court that simply because there is what the Court of Appeal described as a right of appeal does not obviate the necessity of the court at first instance to provide procedural fairness and to give the opportunity for a person in the applicant’s position to be heard so as to put matters before the court which might obviate or remove the necessity for the particular matter to be placed on the estreats roll and the District Court to exercise its powers pursuant to section 13 of the Fines and Forfeited Recognizances Act.  The other matter we advance on behalf of the court ‑ ‑ ‑

TOOHEY J:   Can I just ask you in relation to section 13 itself or the hearing that took place under section 13, is there any complaint made of lack of procedural fairness on that occasion?

MR NORRISH:   Your Honour, the only matter that could be called a matter of procedural fairness touches upon what the President found to be the error of law, and that is the failure of the judge exercising powers pursuant to section 13 to advert to or consider a factual aspect of the matter which would legitimately be relevant to the exercise of the discretion made available under that particular section.  One of the key factual matters that emerged in this appeal ‑ certainly it was a factual matter before His Honour ‑ was the reality that the Bail Act has a serious failing.  That is:  when conditions of bail are changed, there is no requirement under the Act to notify a surety of the change of those conditions.  Consequently, a surety is not then given the opportunity of making a decision as to whether they wish to continue as a surety, given the change of conditions that may have been ordered by a court.

Be that as it may, notwithstanding the fact that there is no provision in the Bail Act which requires notification to a surety, the President in his consideration of the orders made by Judge Court indicated in his findings that there was no express or implied reference in the exchanges of counsel and the learned judges to this fact which was before His Honour as a fact.  The only comment that His Honour made was that there was no requirement under the Bail Act to notify the surety.

TOOHEY J:   But it is difficult to identify on what you have just been saying anything in relation to the second hearing that is by way of jurisdictional error or failure to accord procedural fairness.

MR NORRISH:   Your Honour, might I say this.  One of the matters we say that warrants the consideration of special leave in this matter is the circumstances in which an order for certiorari might be made and whether, as a corollary of that, errors of law are to be regarded as jurisdiction or non‑jurisdictional errors for the purposes of the consideration of the particular relief that was sought by the applicant in this particular matter.  I do not know whether the ground of appeal in the notice of appeal confines the complaint to the question of jurisdictional errors.  Your Honour may see at application book page 70 the second ground of appeal advanced is that:

The Court of Appeal erred when (by majority) it determined that there was no error of law on the record when the first respondent confirmed the order of forfeiture such as to warrant the grant of relief in the nature of certiorari.

That is a discrete point from the matter that Your Honour raised with me earlier concerning whether there was procedural fairness in the circumstances.  We do advance on behalf of the applicant the proposition that, firstly, the President was right in determining there was error of law when the second judge exercised powers pursuant to section 13 of the Fines and Forfeited Recognizances Act, and that the majority was in error when it is said that ‑ if I could take Your Honours to the application book at page 53 which is the last page of Justice Sheller’s judgment.  His Honour said this at line 5:

Clearly his Honour was acting within his jurisdiction.  There is no suggestion of procedural unfairness.  Importantly no error of law was shown.  During the course of argument ‑

and this is the part I would underline ‑

his Honour made his reasons plain.

There is considerable judicial authority in New South Wales at least from the Court of Appeal, some of which I have referred to in the written submissions, dealing with this very important matter of the need for judicial reasoning and, if no judicial reasoning or inadequate judicial reasoning is given at the time of the making of an order, error of law is shown.

We would say that one matter the Court may need to consider in this application as it would be relevant to the third and fourth special leave points raised is whether simple interchanges between counsel and judge during the course of submissions can be regarded as sufficient to be said to be, so far as the judge’s comments are concerned, reasons for the ultimate order that was made.  Certainly, as our complaint in relation to Judge Court’s powers were concerned, the order that he made was that he had simply taken everything into account but confirmed the forfeiture.  But in any event, the ground of appeal dealing with that matter is not confined to the issue of procedural fairness or jurisdictional error.

If Your Honours please, if I may just go back to the consideration of section 4A, it is our submission that it was wrong for His Honour the President to rely upon consideration of section 4 as an aid to construction of section 4A.  The New South Wales Interpretation Act, of which I have copies for Your Honours if Your Honours would wish to see them, which was referred to in the judgment of the Court of Appeal, section 9 specifically deals with the issue of what the word “may” means in a statutory context.  It says:

In any Act or instrument, the word “may”, if used to confer a power, indicates that the power may be exercised or not, at discretion.

The judgment of the Court of Appeal was to the effect that, once jurisdiction was founded, the order of forfeiture was not a matter of discretion as such and relied upon the judgment of the West Australian Full Court in the decision of Frawley v Layton.  I see my time has expired.  Would Your Honours just allow me to refer to this judgment, if I may?

MASON CJ:   Yes, very shortly.

MR NORRISH:   In Frawley v Layton, (1989) WAR 55, the court considered the operation of the Justices Act,

particularly section 154A, which is set out at page 57 of the judgment, line 20.  That section is very different to the provisions of section 4A of the Fines and Forfeited Recognizances Act.  The court referred in its judgment to the West Australian Interpretation Act, section 56(1), which is in almost identical terms to the New South Wales legislation and at page 58 determined that the Interpretation Act, whilst it suggested the word “may” conveyed a discretion, did not do so for the purposes of making an order of forfeiture.  If I could just take Your Honours to the particular portion of the judgment which was relied upon by the ‑ ‑ ‑

MASON CJ:   We can read it for ourselves.  What page is it?

MR NORRISH:   Page 58, lines 5 to 10:

“a power to do the act, leaving no discretion as to the exercise of the power when the facts are such as to call for it” ‑

In other words, the Court of Appeal said that once jurisdiction was founded in the court, there was no discretion.  We say, with respect, that the particular provision of section 4A is so distinguishable from the West Australian provision that to rely upon that authority was an error of the court and warrants the grant of special leave in this application.  If it please the Court.

MASON CJ:   Thank you, Mr Norrish.  The Court need not trouble you, Mr Birch.

We are not persuaded that the proposed appeal, so far as it turns on the construction of the provisions of the Fines and Forfeited Recognizances Act 1954 (NSW) would enjoy sufficient prospects of success to warrant the grant of special leave.  In other respects, the case turns on its own particular facts and circumstances and is not appropriate for the grant of special leave.  The application is therefore refused.

MR NORRISH:   As Your Honour pleases.

MR BIRCH:   Your Honours, I am instructed to seek costs for the second respondent.

MASON CJ:   Do you oppose that?

MR NORRISH:   Your Honour, I would oppose it.  I appreciate it is a discretionary matter for the Court, but I think Your Honours are well apprised of the facts of this matter, both as to the impact upon the applicant and in the circumstances, whilst the special leave application has been refused, I would ask the Court to exercise its discretion not to order costs.

MASON CJ:   The application is refused with costs.

AT 12.44 PM THE MATTER WAS ADJOURNED SINE DIE