Vereker & Ors v O'Donovan

The applicants, John Michele Vereker and others, sought special leave to appeal to the High Court of Australia from a decision of the Full Federal Court. The dispute concerned a committal hearing where a magistrate had found a prima facie case against the applicants on charges of conspiracy to defraud the Commonwealth and conspiracy to prevent the execution of a Commonwealth law, relating to a taxation minimisation scheme. The applicants had sought judicial review of the magistrate's decision under section 5 of the *Administrative Decisions (Judicial Review) Act*.

The primary legal issue before the High Court was whether the Full Federal Court had erred in its decision to vary an order made by a single judge of the Federal Court. The single judge had remitted the committal hearing back to the magistrate with directions based on his finding of a "fundamental error" in the magistrate's reasoning, specifically concerning an "interim rights argument". On appeal to the Full Federal Court, this argument was abandoned by the informant, and the Full Court varied the order to direct the magistrate to hear and determine the matter "according to law", articulating what they considered to be the relevant legal principles.

The High Court was required to consider the legal principles governing judicial review of committal proceedings and the extent to which a court on appeal could substitute its own articulation of the law for that of a primary judge, particularly when the basis of the primary judge's decision had been abandoned. The Full Federal Court, in its majority decision, had determined that while the magistrate's decision was reviewable, the primary judge's specific directions were inappropriate, and it was sufficient to direct the magistrate to proceed according to law, as clarified by the Full Court. There was a division of opinion within the Full Federal Court on this matter.