Zeltner v Deputy Registrar of the Supreme Court
[2022] ACTCA 30
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL
Case Title: | Zeltner v Deputy Registrar of the Supreme Court (No 2) |
Citation: | [2022] ACTCA 30 |
Hearing Date: | 19 May 2022 |
DecisionDate: | 24 June 2022 |
Before: | Mossop, Kennett and Lee JJ |
Decision: | See [74] |
Catchwords: | APPEAL – JURISDICTION, PRACTICE AND PROCEDURE – Judicial review – issuing of search warrants – s 187 Drugs of Dependence Act 1989 (ACT) – whether Deputy Registrar was required to record reasons for the issuing of warrants under s 187 – no basis for implying a requirement to provide reasons APPEAL – JURISDICTION, PRACTICE AND PROCEDURE – Judicial review – issuing of search warrants – s 187 Drugs of Dependence Act 1989 (ACT) – where warrants must be issued persona designata – warrants not issued by the court – consequences of affixing the court seal – warrants not required to be sealed under r 6304(1) Court Procedures Rules 2006 (ACT) – mistakenly affixing the court seal does not convert decision made as persona designata to a decision of the court APPEAL – JURISDICTION, PRACTICE AND PROCEDURE – Judicial review – whether primary judge erred in awarding costs to the second respondent – costs are in the discretion of the court – no error disclosed – appeal dismissed with costs |
Legislation Cited: | Administrative Decisions (Judicial Review) Act 1977 (Cth) Administrative Decisions (Judicial Review) Act 1989 (ACT) Judiciary Act 1903 (Cth), ss 55N(1)(e), 55P |
Cases Cited: | Avon Downs Pty Ltd v Federal Commissioner of Taxation (1949) 78 CLR 353 Clarkson Williams Partners Pty Ltd v Vaughan (No 2) [2016] ACTCA 8 Zeltner v Deputy Registrar of the Supreme Court of the ACT (No 2) [2021] ACTSC 278 |
Parties: | Carmen Zeltner (Appellant) Deputy Registrar of the Supreme Court of the ACT (First Respondent) Callum Jones (Second Respondent) |
Representation: | Counsel J Masters ( Appellant) Submitting appearance (First Respondent) J Davidson ( Second Respondent) |
| Solicitors Marjason & Marjason Solicitors ( Appellant) ACT Government Solicitor (First Respondent) Australian Government Solicitor (Second Respondent) | |
File Number: | ACTCA 58 of 2021 |
Decision under appeal: | Court/Tribunal: Supreme Court of the ACT Before: Elkaim J Date of Decision: 21 and 22 October 2022 Case Title: Zeltner v Deputy Registrar of the Supreme Court of the ACT; Zeltner v Deputy Registrar of the Supreme Court of the ACT (No 2) Citation: [2021] ACTSC 276; [2021] ACTSC 278 |
THE COURT:
Introduction
The appellant was charged with being knowingly concerned in the commission of an offence by another person, Mr Daniel Brunner, who is alleged to have cultivated four cannabis plants. Evidence against the plaintiff and Mr Brunner was gathered as a result of the execution of four search warrants. Those search warrants had been issued by a Deputy Registrar of the Supreme Court of the Australian Capital Territory as a result of an application by the informant in the case, Mr Jones, who is the second respondent.
The appellant sought judicial review of the first respondent’s issuing of the warrants. By originating application filed on 30 June 2021, she sought an order in the nature of certiorari quashing the decision of the first respondent to issue two of the warrants. A judge of the Supreme Court (the primary judge) heard the application on 18 October 2021. On 21 October 2021, the primary judge dismissed the application: Zeltner v Deputy Registrar of the Supreme Court of the ACT [2021] ACTSC 276 (Reasons). The parties were heard in relation to costs. On 22 October 2021, the primary judge ordered that there be no order as to costs between the appellant and the first respondent but that the appellant was to pay the second respondent’s costs on a party and party basis: Zeltner v Deputy Registrar of the Supreme Court of the ACT (No 2) [2021] ACTSC 278 (Costs Reasons).
The appellant has appealed against both the substantive and the costs decisions.
The decisions below
The originating application
By originating application dated 6 July 2021, the plaintiff sought the following orders:
1) An order in the nature of certiorari quashing the decision of the Defendant made on 2nd April 2019 issuing warrants pursuant to 187 Drugs of Dependence Act 1987 [sic]:
a) to search the premises known as [address], ACT; and
b) to search the Plaintiff.
2) The Defendant pay the Plaintiff’s costs of, and incidental to, the application.
3) Any other orders that this honourable Court considers appropriate.
The grounds of the application were stated as follows:
The orders are sought on the following grounds:
1) Pursuant to both the Human Rights Act 2004 and the common law, everyone in the Australian Capital Territory has the right not to have his or her privacy, family, home or correspondence interfered with unlawfully or arbitrarily.
2) On 2nd April 2019, upon application by the Second defendant, Mr Grant Kenneally in his capacity of Deputy Registrar of the Supreme Court and issuing officer for the purposes of s. 187 Drugs of Dependence Act 1987 (the Act), issued four (4) Search Warrant on an exparte basis: two of which relates to the plaintiff.
3) For the purposes of issuing the warrants, the Second defendant had to provide an information which complied with section 187 of the Act and the Defendant had to also comply with the Act before issuing the warrants.
4) A decision under section 187 of the Act is subject to Judicial Review.
5) To enable Judicial Review to take place, the Defendant had to cause the Court to keep a record of the application and documents in support.
6) The Defendant failed to record and keep a record of the application and his reasons for issuing the warrants, and by doing so:
a) deprived the Plaintiff of procedural fairness to challenge the lawfulness of the issuing of the warrants; and
b) deprived the Court from being able to Judicially Review the decision.
The application was supported by an affidavit of the plaintiff’s solicitor.
It should be noted at this stage that the application was one which sought to quash the warrants because of an asserted obligation on the part of the issuing officer to keep a record of the application and his reasons for issuing the warrants. At no stage was any other basis identified for the quashing of the warrants.
The reasons below
His Honour described the nature of the proceedings and identified the procedural history of the matter as follows:
(a) The plaintiff and Mr Brunner lived together at a house in Calwell in the Australian Capital Territory.
(b) On 2 April 2019 the second defendant laid an ex parte information before the first defendant requesting the issuing of four search warrants pursuant to s 187 of the Drugs of Dependence Act 1989.
(c) The first defendant issued the warrants. Copies are attached to the July affidavit at Annexure HLMM 2. In the order in which they are attached, the warrants are, respectively, to search Mr Brunner, to search the plaintiff, to search a particular motor vehicle and to search the premises at Calwell.
(d) The warrants were served on the plaintiff in the afternoon of 2 April 2019. The warrants were executed and the “Police located and seized a number of items of interest”. In broad compass the items were either cannabis or objects associated with this drug.
(e) After execution of the warrants the plaintiff and Mr Brunner were charged.
(f) A brief of evidence was received by the plaintiff’s solicitors on 22 October 2020. The solicitors wrote to the DPP on 29 October 2020 requesting disclosure, inter-alia, of “the application and information provided to Deputy Registrar Kenneally regarding the particulars of how the search warrant was granted”.
(g) Mr Crocker, a prosecutor with the DPP, replied by email on 10 November 2020. He said that he did “not have a copy of the application or the supporting affidavit relating to the search warrant”. He said these documents were not disclosable and had not been provided to his office. He referred to Ousley v The Queen (1997) 192 CLR 69.
(h) The plaintiff’s solicitor also sought access to the court file which was granted by email from the Acting Registrar of the Magistrates Court on 22 December 2020.
(i) The plaintiff’s solicitor inspected the file and found that it did not contain any documents “in relation to warrant applications”. This was pointed out to the DPP, by letter dated 12 February 2021, and a request made for the relevant police officer to be contacted to obtain the information. It was stated that the information was required in order to assess the merits of the plaintiff challenging the issue of the search warrants by judicial review.
(j) Nothing much then seems to have happened until 1 April 2021 when the plaintiff’s solicitor wrote to the second defendant seeking the material that had been lodged with the court in support of the application for the search warrants. Also on 1 April 2021 a copy of the request was sent to the ACT Chief Police Officer, and the ACT Government Solicitor.
(k) On 3 June 2021, the plaintiff’s solicitor wrote to the DPP saying that no documents had been produced by the second defendant and wondering if they had been sent to the DPP. Mr Crocker replied swiftly and said that his office had not received the documents.
(l) Still on 3 June 2021, the plaintiff’s solicitor wrote to the ACT Chief Police Officer saying that unless an appropriate response was received by 7 June 2021, proceedings would be commenced for judicial review together with a Notice to Produce.
(m) Mr James Belotti, “Lawyer, Chief Legal Counsel Portfolio”, responded on behalf of the AFP on 7 June 2021. He said that he agreed with the DPP’s assertion that the documents were not disclosable. He said:
[T]here is ample authority which establishes that a warrant is not susceptible to ‘collateral attack’ where it is asserted the material before the issuing authority was inadequate or insufficient, including where the presumption of validity has not been displaced.
Mr Belotti also referred to Ousley and added Murphy v R (1989) 167 CLR 94 in further support of his position.
(n) As stated above, the Originating Application, was then filed on 6 July 2021.
(o) The plaintiff’s trial has been set down to commence in the Magistrates Court on 17 January 2022.
The primary judge then set out the terms of s 187 of the Drugs of Dependence Act1989 (ACT), which was the statutory foundation for the issue of the warrants. He described compliance with s 187 as a “Tick the box” exercise if the terms of the relevant subsection are complied with and then the issuing officer is “satisfied that there are reasonable grounds for issuing the warrant”: Reasons at [11]. His Honour noted that there was no obligation in the section for the issuing officer to provide reasons for issuing the warrant: Reasons at [12].
His Honour outlined the manner in which the appellant put her case. Although this did not precisely correspond with the manner in which the claim was put in the originating application, his Honour accepted the second respondent’s summary that the appellant should be viewed as asserting the following two propositions:
(a)there was an obligation on either, or both, the issuing officer and the informant, to retain a copy of the documents relevant to the making of the decision to issue the warrant; and
(b)there was an obligation on the issuing officer to provide reasons for deciding to issue a warrant.
His Honour noted that the parties agreed that the decision of the issuing officer was administrative in nature and that such a decision could be the subject of judicial review.
His Honour said that insofar as the Human Rights Act2004 (ACT) was raised, it did not have any impact upon the case where the right to judicial review of the issuing officer’s decision was accepted: Reasons at [18]-[19].
His Honour then addressed the asserted obligation to give reasons. His Honour rejected the submission that the issuing officer’s obligation was akin to that of a judge conducting a judge alone trial, noting that the judge was exercising judicial power and that legislation specifically required the court to give reasons in that situation. Instead, s 187 of the Drugs of Dependence Act makes no provision for the giving of reasons. His Honour quoted from the decision of the High Court in Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43; 252 CLR 480 (Wingfoot) at [43] where the court noted that there is no freestanding common law duty to give reasons for making a statutory decision.
The primary judge noted that s 187 determines the material that must be put before the issuing officer and that the satisfaction that there are reasonable grounds for issuing the warrant does not rely upon any material outside the material placed before the issuing officer. The standard required of the issuing officer is to be satisfied of the matters set out in s 187. The issuing officer therefore complies with the section by issuing the warrant. His Honour concluded that “there is nothing in s 187, either specifically or by implication, that creates the basis for the issuing officer to give reasons”: Reasons at [24].
His Honour said that it was notable that the plaintiff had not “put forward any reason to suggest or remotely suspect, that the issuing officer made any mistake in dealing with the warrants”: Reasons at [28]. He recorded that he had enquired of counsel for the appellant as to why the appellant had not subpoenaed or issued a notice to produce in the present proceedings to obtain the material put before the first respondent. The submission made was that it was not for the appellant to do so, rather it was for the second defendant to place the material before the court. His Honour disagreed. He said that it was contrary to the need to show that there was a real live issue (citing SMEC Holdings v Commissioner of the Australian Federal Police [2018] FCA 609 at [25]) and contrary to the appellant’s assertion that she was being denied access to the documents. In those circumstances, his Honour said the appellant should have placed the documents before the court or at least attempted to compel the second respondent to make documents available.
The primary judge then turned to whether the respondents should have retained the documents. It was accepted that the first respondent did not do so. His Honour noted that the appellant did not subpoena or issue a notice to produce on the second respondent to produce documents and said: “Absent this step I find it difficult to understand how any submission could be made that there had been any breach of an obligation, on the part of the second [respondent], to retain the documents”. His Honour agreed with the second respondent that any judicial review would be a review of the decision to issue the warrants and would not be a review of whether or not the documents were retained. His Honour noted that s 187 does not tell the issuing officer to keep any documents and any attack on the procedural fairness of the issuing of the warrants would not depend upon whether the documents were retained. His Honour accepted that if the documents no longer existed an attack on the decision would be difficult to mount but noted that the appellant had chosen not to compel their production by the second respondent.
Finally, his Honour dealt with the contention that if a warrant was issued by the first defendant as persona designata then the court seal should not have been placed on the document because its presence deemed the document to be issued by the court. His Honour set out the terms of r 6304 of the Court Procedures Rules 2006 (ACT) which required a document to be sealed if it was “issued by the court”. The primary judge said that the placing of the seal does not lead to the conclusion that if the seal is present then the document was issued by the court. His Honour said: “The rule, in my view, says that if a document is issued by the court then it must be sealed. It does not say that if a document is sealed, it necessarily becomes a document issued by the court”: Reasons at [38].
His Honour therefore dismissed the originating application and indicated that he would hear the parties as to costs.
The costs decision
Having heard the submissions of the parties on costs, his Honour delivered his costs decision the next day. His Honour recorded that the appellant submitted that there should be a costs order in her favour, that the second respondent sought a costs order including an order for solicitor and client costs for a certain period of time and that the first respondent sought no costs order in his favour: Costs Reasons at [2]-[4].
His Honour referred to the second respondent’s contention that:
(a)the appellant’s case was hopeless;
(b)effect should be given to an offer of compromise that had been made under Pt 2.10 of the Court Procedure Rules 2006.
His Honour referred to the evidence disclosing the correspondence between the parties and the offer of compromise which offered to have the originating application dismissed with no order as to costs and had been open for a period of 14 days.
His Honour summarised the plaintiff’s submissions as follows:
(a)The plaintiff, an accused person in a criminal trial, had persistently asked for the documents but they had never been provided.
(b)The whole of the litigation could have been avoided if the documents had been provided.
(c)The plaintiff had no choice but to commence proceedings because the Magistrates Court lacked the necessary jurisdiction.
(d)The second defendant had not behaved as a model litigant.
(e)There were cases where a costs order had been made in favour of an unsuccessful party.
His Honour dealt with the submissions of the parties “on a global basis” as follows (Reasons at [10]-[15]):
(a)He did not consider the claim to be hopeless even though the relief sought was a little confused. The question of whether an issuing officer should give reasons was fairly and appropriately ventilated.
(b)The points raised by the second respondent were not technical points improperly taken and the second respondent had not failed to behave as a model litigant.
(c)The plaintiff’s submissions on costs assumed a right of disclosure which was a matter not decided by the court. It was therefore not influential in his Honour’s costs decision.
(d)“It is indeed unfortunate that the Magistrates Court does not have the jurisdiction which would have enabled it to decide this case.” However, the appellant had decided to commence the proceedings in the Supreme Court and in doing so “took the risks associated with litigation in any court”.
(e)It was not a matter where the plaintiff had some basis for being suspicious of the warrants and there had never been any suggestion of impropriety in respect of either the application for the warrants or the issuing of the warrants.
(f)His Honour distinguished the decision in DPP v Deeks (1994) 34 NSWLR 523 in which costs had been awarded in favour of an unsuccessful plaintiff.
He then returned to the second respondent’s application for costs and could see no reason why a costs order in favour of the second respondent should not follow the event. His Honour then dealt with the application for solicitor client costs based on the offer of compromise. He noted that he had the discretion to “order otherwise”. His Honour reasoned that the proceedings “may be viewed as a continuing attempt by the plaintiff to obtain the documents against continued refusal”. He said:
The plaintiff’s quest for the documents would have been better explored in the Magistrates Court. She had no choice but to proceed in this court where litigation is more expensive. I think that is enough for me to decline the request for a special order.
His Honour therefore made no order as to costs between the plaintiff and the first defendant but ordered that the plaintiff pay the second respondent’s costs on a party and party basis.
Appeal against the dismissal of the originating application
Grounds of appeal and notice of contention
The grounds of appeal in relation to the order dismissing the originating application are as follows:
a. The Court erred by refusing to grant relief on the basis that the First Respondent was not required to record reasons for granting warrants under s 187 Drugs of Dependence Act (ACT) [DODA].
b. Having held that an issuing officer’s decision to grant a search warrant pursuant to 187 DODA is subject to judicial review, his Honour erred in holding that the First Respondent was not required to record reasons for his decision to issue a warrant under the Act.
c. Whilst the First Respondent had authority to issue the warrants persona designata, he had no authority to issue a warrant quo Registrar and by affixing the Court Seal to the Warrant he purported to be issuing the warrants quo Registrar. The Court erred in law in holding that it was a not [sic] document issued by the Court.
d. The Court also erred in law in holding that if a document deliberately has the Court Seal affixed, it does not necessarily become a document issued by the Court.
In relation to this aspect of the appeal, the second respondent filed a notice of contention. That notice contends that the order of the primary judge should be confirmed on the following ground:
1. If, contrary to the conclusion of the primary judge, the first respondent was required to record reasons for his decision to issue search warrants under s 187 of the Drugs of Dependence Act 1987 (ACT):
1.1That duty was discharged by the reasons given on the face of the impugned search warrants; or
1.2Any failure by the first respondent to record reasons was not material to the decision to issue the search warrants, such that it is not appropriate to grant the relief sought.
Requirement to give reasons
Grounds (a) and (b) relate to the obligation to give reasons. The submissions of the appellant referred to the obligation upon judicial officers to give reasons but provided no authority for the proposition that an administrative decision maker in the circumstances of the first respondent was required to give reasons. The submission made by the appellant accepted that there was no express obligation to provide reasons but submitted that the mere fact that judicial review is available inherently carries the requirement to provide reasons. In support of that proposition, counsel cited the decision in Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v AAM17 [2021] HCA 6; 95 ALJR 292 at [22], a passage which did not support the proposition contended for. He submitted that at a minimum there must be something in writing that allows the reviewing court to reach a conclusion as to whether the issuing officer complied with s 187.
There is no freestanding obligation to give reasons for an administrative decision: Public Service Board of NSW v Osmond (1986) 159 CLR 656 (Osmond). Any duty of an administrative decision maker to give reasons therefore is dependent upon there being a statutory duty to do so: Wingfoot at [43].
Section 187 of the Drugs of Dependence Act provides:
187Search warrants
(1)In this section:
issuing officer means—
(a)a judge, the associate judge, the registrar or a deputy registrar of the Supreme Court; or
(b) a magistrate; or
(c)the registrar, or a deputy registrar, of the Magistrates Court authorised, in writing, by the Chief Magistrate to be an issuing officer for this section.
private place does not include a place ordinarily private that is for the time being—
(a)used for a public purpose; or
(b)a place of common resort; or
(c)open to the public, on the payment of money or otherwise.
(2)If an information on oath is laid before an issuing officer alleging that there are reasonable grounds for suspecting that, on the day when, or a day within 28 days after the date when, the information is laid, there is or will be a thing or things of a particular kind connected with a particular offence on, or in the clothing that is being worn by, or in any property in the apparent control of, a particular person and the information sets out those grounds, the issuing officer may issue a search warrant authorising each police officer named in the warrant, with the assistance, and by the force, that is necessary and reasonable—
(a)to enter any place the police officer believes on reasonable grounds to be occupied by the person; and
(b)to search the person, or the clothing that is being worn by, or property in the apparent control of, the person; and
(c)to seize any such clothing or property that the police officer believes on reasonable grounds to be connected with the offence.
(3)If an information on oath is laid before an issuing officer alleging that there are reasonable grounds for suspecting that, on the day when, or a day within 28 days after the date when, the information is laid, there is or will be at or in any place a thing or things of a particular kind connected with a particular offence, and the information sets out those grounds, the issuing officer may issue a search warrant authorising each police officer named in the warrant, with the assistance, and by the force, that is necessary and reasonable to—
(a)enter any place named or described in the warrant; and
(b)search the place for things of that kind; and
(c)if the place is a private place—to search any person found at or in the place, or any person whom he or she reasonably believes to be about to enter or to have recently left the place, and the clothing that the person is wearing, or property in the apparent control of the person, if the police officer believes there are reasonable grounds for suspecting that things of that kind may be on the person or in the clothing that the person is wearing or in property in the apparent control of the person; and
(d)to seize any thing of that kind found as a result of any entry or search referred to in paragraph (a), (b) or (c) that he or she believes on reasonable grounds to be connected with that offence.
(4)An issuing officer shall not issue a warrant under this section unless—
(a)the informant or some other person has given to the issuing officer, either orally or by affidavit, the further information (if any) the issuing officer requires about the grounds on which the issue of the warrant is being sought; and
(b)the issuing officer is satisfied that there are reasonable grounds for issuing the warrant.
(5)An issuing officer may issue a warrant under subsection (2) or (3) subject to conditions limiting the powers set out in the relevant subsection.
(6)A warrant issued under this section shall state or set out—
(a)the purpose for which the warrant is issued, including a reference to the nature of the offence in relation to which the entry and search are authorised; and
(b)whether the entry or search is authorised to be made at any time of the day or night or during specified hours of the day or night; and
(c)a description of the kind of things authorised to be seized; and
(d)any conditions to which the warrant is subject; and
(e)if the warrant is issued under subsection (2)—a way of identifying each person specified in the warrant by—
(i) name; or
(ii) description; or
(iii) a photograph of the person attached to the warrant; and
(f)a date, not later than 28 days after the date of issue of the warrant, when the warrant will cease to have effect.
(7)If, in the course of searching in accordance with a warrant issued under this section for things connected with a particular offence, being things of a kind specified in the warrant, a police officer finds any thing that he or she believes on reasonable grounds to be connected with the offence although not of a kind specified in the warrant, or to be connected with any other offence, and he or she believes on reasonable grounds that it is necessary to seize that thing to prevent its concealment, loss, destruction or use in committing, continuing or repeating either offence the warrant shall be deemed to authorise him or her to seize that thing.
The express conditions that must be met before a warrant is issued are those set out in ss 187(4)(a) and (b). The requirements as to what must be put before the issuing officer are set out in ss 187(2) or (3) as applicable. The Act sets out what the warrant itself must contain: s 187(6).
There is nothing in the text of s 187 that would require the giving of reasons for the issuing of a warrant.
Further, having regard to the detail with which the requirements of the application, the matters which must be satisfied before a warrant is issued and the content of the warrant are specified in the section, there is no basis for any implication arising from the terms of the section or its context that an issuing officer is required to give reasons for decision.
Part of the broader legislative context in which s 187 must be interpreted are the provisions of the Administrative Decisions (Judicial Review) Act 1989 (ACT) (ADJR Act) which excludes decisions “in relation to the issue of a search warrant” from the scope of the obligation of an administrative decision maker to provide a statement of reasons on request. Although the Drugs of Dependence Act slightly predated the ADJR Act, even before the ADJR Act came into effect, the position under the Commonwealth Administrative Decisions (Judicial Review) Act 1977 (Cth), which was applicable in the Territory, was that decisions to issue search warrants were excluded from the obligation to provide a statement of reasons. This broader aspect of the statutory context tends against the drawing of an inference that the terms of s 187 require a statement of reasons. That is because it might be expected that if there was to be a different rule to that stated in the ADJR Act or its predecessor, this would be done expressly in the Drugs of Dependence Act.
The proposition at the core of the appellant’s argument, namely that the potential for judicial review of an issuing officer’s decision necessarily carries with it the requirement to provide reasons, is not sound. The fact that reasons are not given does not prevent judicial review of an administrative decision: Avon Downs Pty Ltd v Federal Commissioner of Taxation (1949) 78 CLR 353 at 360; Osmond at 663. Indeed, if the absence of reasons was inconsistent with the existence of the capacity for judicial review, then having regard to the potential scope of judicial review, in the absence of an effective privative clause and contrary to the decision in Osmond, every administrative decision would require the giving of reasons.
The concurring reasons of Deane J in Osmond (at 676), upon which reliance was placed by the appellant, do not assist her. Although his Honour in that case expressed a greater willingness to perceive a legislative intent that a decision-maker be under a duty to give reasons, there is nothing in s 187 which would provide an appropriate foundation for such a requirement.
Counsel for the appellant placed some emphasis on the right to a fair trial under s 21 of the Human Rights Act 2004 (ACT). He also made some reference to the interpretive obligation in s 30 of that Act. Nothing in counsel’s submissions outlined a legally plausible means by which s 21 might, through s 30, be engaged to require an interpretation of s 187 so that it incorporated an obligation to give reasons.
Given that there was no obligation upon the first respondent to provide reasons for his decision, it is not necessary to address the notice of contention.
Court seal
The second issue raised by the grounds of appeal is the consequences of the affixing of the court seal to the warrant.
The definition of “issuing officer” in s 187(1) identifies persons by reference to the holding of particular offices. Having regard to the terms of that definition and the decision in Love v Attorney-General (NSW) (1990) 169 CLR 307 (Love), it is clear that each such person is named as persona designata by reference to their office and does not constitute the court of which they are an officer when exercising the functions of an issuing officer.
The warrant issued in the present case was stamped with the seal of the ACT Supreme Court. Rule 6303 of the Court Procedures Rules requires the Registrar of the Supreme Court to keep the seal of the Supreme Court. Rule 6304 provides:
6304 Documents—sealing and stamping
(1) A document must be sealed if the document is—
(a) issued by the court; and
(b)required to be sealed under these rules.
(2) The registrar may stamp a copy of a document to indicate that it is a copy of a filed document if—
(a) the document has been filed by a party; and
(b) a copy of the document must or may be served on another party.
Given that the warrant was not issued by the Supreme Court and was not required under the Court Procedure Rules to be sealed, there was no requirement under r 6304(1) to seal it. Further, having regard to the fact that the first respondent who was the issuing officer was doing so as persona designata rather than as the Supreme Court, the affixing of the court seal was not appropriate.
However, there is nothing in the rule or arising by reason of the mistaken decision to affix the seal that had the effect of converting the decision to issue the warrant from one made by the first respondent as persona designata to a decision of the court constituted by the first respondent. It did not have the effect of, somehow, converting the administrative decision of the first respondent to a judicial decision for which reasons might be required.
Further, if the affixing of the seal of the Supreme Court to the warrant indicates a mistaken belief on the part of the first respondent that he was exercising the power of the court rather than a power given to him as persona designata, then that mistaken belief does not affect the validity of the warrant. It is well established that if there are two potential sources of power, each governed by the same conditions, then a mistake on the part of the decision maker as to which power is being exercised does not give rise to invalidity: Moore v Attorney-General (Irish Free State)[1935] AC 484 at 498; Eastman v Director of Public Prosecutions (ACT) [2003] HCA 28; 214 CLR 318 at [124] . In this case there was, in fact, only one power that the first respondent had to issue the warrant - the power under s 187. The fact that the power was one to be exercised by the first respondent as persona designata did not require him to do anything more than he is shown to have done. Any misconception on his part was one which is without consequence in the present case.
Appeal against the costs order
Grounds of appeal
The grounds of appeal in relation to the primary judge’s order for costs against the appellant as stated in the Notice of Appeal are as follows:
The grounds of appeal relied upon in relation to Order 2 are that his Honour erroneously exercised his discretion in relation to awarding costs to the Second Respondent:
a. by not considering s 21 of the Human Rights Act 2004 (ACT) [HRA] which provides that the appellant has a right to a fair trial.
b. by not finding that as part of a fair trial a person has the right to inquire as to the issues raised in her application without fear of a costs order against the State for simply raising the question for determination.
c. by failing to take into account that this application was brought about as part of criminal proceedings where there was no option to question the issuing of a warrant other than to apply for judicial review in the Supreme Court.
d. by finding that the appellant’s mere decision to commence proceedings automatically took on a costs risk associated with any litigation without distinguishing or properly considering the nexus with the criminal prosecution.
e. by holding that the appellant required a basis for being suspicious of the warrants before coming to the court per se and in the backdrop that the Second Respondent had the information but refused to provide it.
f. by failing to take into consideration that the prosecution failed in its duty of disclosure to provide the application for issuing the warrant.
g. by failing to take into consideration that the Second Respondent contemporaneously suggested that the appellant issue a subpoena for disclosure of the information but threatening to oppose any subpoena were the plaintiff to issue one.
h. by attaching any weight to an offer of compromise by the Second Respondent that improperly required that the appellant drop her right to know the reasons a warrant was granted on undisclosed (ex parte) but not privileged information, which if issued unlawfully by the First Respondent, would undermine her right not to have her privacy and home interfered with contrary to section 12 of the HRA.
There are then some additional grounds relied upon in relation to the making of the costs order in favour of the second respondent. Those appear in the Notice of Appeal as follows:
Not a matter for which the AGS should have represented the Second Respondent
i. When carrying out policing functions in the Australian Capital Territory (Territory), notwithstanding performing those functions as a member of the Australian Federal Police (AFP), the Second Respondent was not performing his duties on behalf of the Commonwealth but on behalf of the Territory.
j. Policing in the Territory by the AFP is by a formalised ongoing arrangement for the provision of police services to the ACT entered into pursuant to section 8(1A) of the AFP Act 1979 (the Arrangement).
k. The Arrangement, per se, does not surrender the power of policing in the ACT to the Commonwealth.
l. Under paragraph 9 of the Arrangement, police will be advised and represented by the ACT Government Solicitor in this type of matter and not the Australian Government Solicitor in the context of this type of matter. As a result of breaching the agreement, the AGS is not be [sic] entitled to an award of costs.
Decision Grounds a - h
The primary judge’s decision in relation to costs was a discretionary decision of the court. This court can only interfere if there is a House v The King error. That would require demonstration that the primary judge acted upon a wrong principle, failed to take into account a material consideration, took into account an irrelevant consideration or reached a conclusion that was unreasonable or plainly unjust: House v The King (1936) 55 CLR 499 at 504-505.
Costs are in the discretion of the court: r 1721 of the Court Procedures Rules. The proper exercise of discretion ordinarily involves costs following the event: Oshlack v Richmond River Council [1998] HCA 11; 193 CLR 72 at [67], [120]-[122]; Clarkson Williams Partners Pty Ltd v Vaughan (No 2) [2016] ACTCA 8 at [9].
There was, in this case, an offer of compromise that had been made by the second respondent. As a result of that offer, the second respondent was entitled to a more favourable order as to costs unless under r 1012(2) the court ordered otherwise.
None of the grounds of appeal (a)-(h) are made out. Given the variety of different points raised, it is necessary to say something about each of them. However, it is appropriate to make the following general comments about the context in which the question of costs was determined.
It is not apparent that the appellant ever articulated a proper basis for the assertion that reasons for decision were required. Given that it was common ground that the decision was an administrative one, it should have been clear that there was no common law duty to provide reasons and there was nothing in s 187 which would have provided a solid foundation for a contention that reasons were required by statute.
In the proceedings in the Magistrates Court, there were undoubtedly some restrictions upon the documents that were available to the appellant. Documents might be available to the appellant as a result of the disclosure by the prosecution pursuant to its duty of disclosure. The Crown must disclose material which:
(a)is or might be relevant to an issue in the case;
(b)raises a new issue, the existence of which is not apparent from the prosecution case; and
(c)holds out a real prospect of providing a lead on evidence in the first two categories: R v Reardon (No 2) [2004] NSWCCA 197; (2004) 60 NSWLR 454 at [46]-[54].
Alternatively, documents might be available to the appellant as a result of the issuing of a subpoena. In order that the subpoena be a valid one, it would be necessary for her to show that the documents were relevant to the proceedings and that it was “on the cards” that the documents produced would materially assist her case: R v Saleam [1999] NSWCCA 86 (Saleam) at [11]. There may be some room for debate about precisely what was required in relation to the second limb of this test in the context of criminal proceedings where the issue needed to be considered in light of the prosecution’s duty: Secretary of the Department of Planning, Industry and Environment v Blacktown City Council [2021] NSWCA 145 at [74]-[79], [91].
So far as the prosecution’s duty of disclosure was concerned, it is well-established that the appellant was not entitled to test the sufficiency of the material available to the first respondent to reach the conclusion that he did: Murphy v The Queen (1989) 167 CLR 94 at 105-106; Ousley v The Queen (1997) 192 CLR 69 (Ousley) at 80, 87, 126-127. Following the recognition in Love at 320-321 that warrant decisions will generally be administrative ones, the foundation for that in the presumption of regularity as described by Gummow J in Ousley at 130-131 may be seen as less persuasive than was the case prior to Love. However, High Court authority establishes that the rule continues.
Thus, in order for the appellant to have an entitlement to the documents provided to the first respondent there needed to be a duty on the prosecution to disclose the document or alternatively a basis upon which the appellant could establish that it was on the cards that the documents would assist her case.
So far as prosecution disclosure was concerned, his Honour was not called upon to resolve the issue of whether the prosecution was under a duty to disclose the documents: Costs Reasons at [12]. Relying upon the decision in Ousley, the Australian Federal Police had asserted that no further disclosure was required. There may be cases in which Ousley is not a complete answer because the defects in the material provided to the issuer of the warrant go beyond questions of whether the matters asserted were sufficient to justify the issuing of the warrant. This appears to have been recognised in the foundational case McArthur v Williams (1936) 55 CLR 324 at 365-366 which identified that the existence of conditions precedent to the forming of the state of satisfaction necessary for the issue of a warrant may be open to challenge. Thus, the decision in Ousley does not in all cases define the scope of disclosure that may be necessary.
So far as the possible issue of a subpoena was concerned, his Honour noted “There has never been, in this matter, any suggestion whatsoever of any impropriety, or suspicion of impropriety, in respect of either the application for the warrants or the issuing of the warrants.”: Costs Reasons at [14]. There was therefore no basis upon which the appellant could say that the disclosure of the documents would materially assist her case.
The inability to obtain access to the warrant-related material was less than ideal because the appellant was unable to investigate for herself the documents providing the foundation for the issue by the first respondent of the warrants. However, that reflects the current state of the law. It did not provide a foundation for the arguments advanced before the primary judge.
In ground (a) the appellant asserts that the primary judge failed to consider s 21 of the Human Rights Act. Nothing in the appellant’s submissions demonstrates why the appellant’s right to a fair trial under the Human Rights Act connected with the facts so as to make it a mandatory consideration on the question of costs.
Ground (b) raises the question whether or not a part of a fair trial involves the right to enquire “as to the issues raised in her application” without fear of a costs order. His Honour was not obliged to find that the right to a fair trial either at common law or under the Human RightsAct prevented a costs order being imposed in collateral judicial review proceedings. No authority for that proposition was referred to and there is no basis for such a general contention.
Ground (c) involves two propositions. First, that the proceedings were brought as part of criminal proceedings and, second, that there was no option to question the issue of the warrant other than to apply for judicial review. The first proposition is obviously correct and plainly a matter of which his Honour was aware. The second matter is not so obviously correct. There is no reason why in the substantive criminal proceedings brought against the appellant, she could not have put in issue the validity of the warrant and hence contended for the exclusion of evidence gathered pursuant to the warrant. However, whatever the position in the Magistrates Court proceedings, nothing required the appellant to bring judicial review proceedings on the grounds that she did, those grounds being without any merit.
Ground (d) asserts that it was an error on the part of the primary judge to find that the appellant’s decision to commence proceedings took on a risk of costs. Once it is accepted that the present proceedings were civil proceedings seeking judicial review, then it is clear that the primary judge was correct in reaching the conclusion that he did. The association of the judicial review proceedings with criminal proceedings being conducted in the Magistrates Court was a matter which was relevant to costs but, having regard to r 1721, the commencement of such proceedings carried with it the risk of costs. It ought to have been very clear to the plaintiff’s lawyers, and hence to the plaintiff, that this was the position.
Ground (e) asserted that his Honour held that the appellant required a basis for being suspicious of the warrants before coming to court in circumstances where the second respondent had refused to provide the information relied on for the purposes of the issue of the warrants. This appears to be a reference to his Honour’s comment at [14]:
I think it important to note that this was not a matter where the plaintiff had some basis for being suspicious of the warrants so that she was compelled to come to the Supreme Court for relief. There has never been, in this matter, any suggestion whatsoever of any impropriety, or suspicion of impropriety, in respect of either the application for the warrants or the issuing of the warrants.
There is no challenge to this finding. It was clearly relevant. It meant that, on the evidence before the court, it could not be established that there was any relevant failure to provide disclosure by the prosecution. It also meant that the plaintiff could not satisfy the requirement for a valid subpoena in accordance with the test in Saleam.
Ground (f) asserts that the primary judge failed to take into consideration that the prosecution failed in its duty of disclosure. The primary judge was very clear that he made no such finding. In the Costs Reasons, the primary judge said at [12]:
A good deal of the plaintiff’s submissions on costs revolve around the assumed right of disclosure held by the plaintiff for the documents provided to [first respondent]. But as seen in [14] this was not a question that was put to me for decision, nor did I decide that the right did or did not exist.
Whether or not there was an obligation to give reasons for the issue of the warrants as asserted by the appellant was not affected by whether or not the prosecution in a subsequent trial had a duty to disclose the material provided to the issuing officer.
Ground (g) asserts that the primary judge failed to take into account the position adopted by the second respondent threatening to oppose production pursuant to a subpoena. It is not clear that His Honour did not take this into account. He clearly referred to the expressed attitude of the lawyer acting for the AFP in his Reasons at [8(m)]. He also referred to the issue that would have been required to be determined had a subpoena been issued: Costs Reasons [12]. The difficulty for the appellant is that there is a lack of connection between the expressed attitude of the AFP to disclosure and the claim ultimately made in the proceedings which was not for disclosure of the documents but instead asserting a legal entitlement to a statement of reasons.
Ground (h) asserts that the primary judge erred by attaching any weight to the offer of compromise. This ground does not assert that the offer of compromise failed to comply with the Court Procedures Rules. Rather, it asserts that no weight should have been given to the offer in circumstances where it required the proceedings to be terminated. It is not at all clear that his Honour did give any weight to the offer of compromise. He considered that it was appropriate to “otherwise order” under r 1012. In any event, having regard to the lack of merit in the appellant’s arguments, his Honour would have been entitled to, at the very least, place some weight upon the existence of an offer which would have allowed the plaintiff to exit the proceedings without an order for costs against her.
His Honour’s decision that costs should follow the event was one which was open to him. No House v The King error is disclosed.
Decision Grounds (i)-(l)
These grounds relate to the representation of the second respondent by the Australian Government Solicitor. Neither the transcript nor the reasons indicate that this issue was ventilated in the court below.
Under s 55N(1)(e) of the Judiciary Act 1903 (Cth), AGS is entitled to provide legal services to “an officer of, or a person employed by,” the Commonwealth. The second respondent was either an officer or employee of the Commonwealth: Australian Federal Police Act 1979 (Cth) s 24. Section 55P of the Judiciary Act provides that:
(1) The AGS may, on behalf of the Commonwealth, charge fees:
(a)in relation to services provided by the AGS in accordance with section 55N; and
(b)for disbursements incurred by the AGS in the course of providing those services.
(2)If the AGS has charged a client an amount under subsection (1), the amount may be recovered by the client as costs incurred by the client.
Therefore, the apparent position is that the AGS is empowered to provide legal services to the second respondent and the second respondent has an entitlement to recover costs that he has been charged in relation to the services of AGS. The argument sought to be advanced by the appellant is based upon the terms of, and steps taken pursuant to, “arrangements for the provision of police services in relation to the Australian Capital Territory” entered into under s 8(1A) of the Australian Federal Police Act. These arguments, which apparently sought to somehow qualify the statutory entitlements referred to earlier, have the potential to raise factual issues as to the existence and nature of the “arrangements” between the Commonwealth and the Territory in relation to provision of police services and procedures agreed for the purposes of that agreement. Having regard to the terms of the provisions of the Judiciary Act and s 8(1A) of the Australian Federal Police Act, it is very difficult to see how that might be the case. Further, in circumstances where this argument was not run below, where it may have been affected by factual matters relating to the arrangements entered into pursuant to the agreement under s 8(1A) and where the Territory is not represented, it is not appropriate to entertain this ground of appeal: Suttor v Gundowda Pty Ltd (1950) 81 CLR 418 at 438.
Order
The appeal must be dismissed. There is no reason why the costs of the appeal should not follow the event.
The order of the Court is:
1. The appeal is dismissed with costs.
| I certify that the preceding seventy-four [74] numbered paragraphs are a true copy of the Reasons for Judgment of their Honours Justice Mossop, Justice Kennett and Justice Lee Associate: Date: 24 June 2022 |
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Amendments
7 July 2022 Change case title from “Zeltner v Deputy Registrar of the Supreme Court” to “Zeltner v Deputy Registrar of the Supreme Court (No 2)”
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