Zirilli v The King

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCR 2020 0053

SAVERIO ZIRILLI	Applicant
v
THE KING	Respondent

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JUDGES:	EMERTON ACJ, BEACH and McLEISH JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	17 August 2022
DATE OF JUDGMENT:	9 September 2022
MEDIUM NEUTRAL CITATION:	[2022] VSCA 192
JUDGMENT APPEALED FROM:	[2012] VSC 47 (King J)

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PRACTICE AND PROCEDURE – Jurisdiction of associate judges – Where Court of Appeal made orders under s 317 of Criminal Procedure Act 2009 for production of documents – Where disputes over production of documents referred to associate judge – Whether associate judge permitted to hear and determine referral – Whether ‘slip rule’ available to amend referral order – Judgment of associate judge set aside.

Constitution Act 1975 s 75A(2A); Criminal Procedure Act 2009 s 317; Supreme Court Act 1986 ss 10, 11, 17, 111, 113C, 113O, 113P; Supreme Court (Criminal Procedure) Rules 2017 rr 1.06, 1.14, 1.16; Supreme Court (General Civil Procedure) Rules 2015 r 84.03.

Burrell v The Queen (2008) 238 CLR 218, followed.

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Counsel
Applicant:		Dr M Gumbleton
Respondent:		Mr D Renton SC
Chief Executive Officer of the Australian Criminal Intelligence Commission:		Mr A Berger KC with Ms S Martin
Chief Commissioner of Victoria Police:		Ms S Maharaj KC with Mr J Bayly and Ms K Chan
Chief Commissioner of the Australian Federal Police:		Ms P Mitchell
Solicitors
Applicant:	Nicholas James Lawyers
Respondent:	Mr S Bruckard, Solicitor for Public Prosecutions (Cth)
Chief Executive Officer of the Australian Criminal Intelligence Commission:	Australian Government Solicitor
Chief Commissioner of Victoria Police:	Victorian Government Solicitor
Chief Commissioner of the Australian Federal Police:	Clayton Utz

EMERTON ACJ
BEACH JA
MCLEISH JA:

Background

On 7 December 2011, having pleaded guilty to all charges, the applicant was convicted of conspiracy to traffic a commercial quantity of MDMA (charge 1), trafficking in a commercial quantity of MDMA (charge 2) and attempting to possess a commercial quantity of cocaine (charge 3). These were all offences under schedule 1 of the Criminal Code Act 1995 (Cth). Each carried a maximum sentence of life imprisonment. On 23 February 2012, King J sentenced the applicant to a total effective term of 26 years’ imprisonment, with a non‑parole period of 18 years.[1]
[1]See DPP (Cth) v Barbaro [2012] VSC 47.
What is now commonly referred to as the ‘Lawyer X’ scandal began to emerge in early 2015 as a result of an inquiry by the Victorian Independent Broad-based Anti-corruption Commission into the way in which Victoria Police had deployed a member of the Victorian Bar, Ms Nicola Gobbo, as an informer while she purported to act as counsel for a number of individuals, including the applicant. That exposure generated the Royal Commission into the Management of Police Informants, which also revealed contact between the applicant’s former solicitor, Mr Joseph Acquaro, and Victoria Police in 2008 and 2014.
On 24 March 2020, the applicant filed an application for leave to appeal his convictions based on the following proposed grounds of appeal:
Ground 1:A substantial miscarriage of justice has occurred in relation to Count 1, in circumstances where the executive deliberately and knowingly used an officer of the Court to secure a conviction against the Applicant.
Ground 2:A substantial miscarriage of justice has occurred in relation to Counts 2 and 3, in circumstances where the integrity of the pleas of guilty are vitiated by reason of their connection to Count 1.
In June and July 2020, the Court made orders under s 317 of the Criminal Procedure Act 2009 (‘CPA’) requiring the Chief Commissioner of Victoria Police (‘VicPol’), the Commissioner of the Australian Federal Police (‘AFP’) and the CEO of the Australian Criminal Intelligence Commission (‘ACIC’) to produce documents described in each order.
On 19 February 2021, Maxwell P (sitting alone) conducted what his Honour described as a ‘mention’ in the proceeding. Each of the applicant, the respondent, VicPol, the AFP and the ACIC were represented at that hearing.
It appears from the transcript of the mention that at that point in time, VicPol had produced redacted documents in response to the relevant s 317 order, along with written submissions supporting those redactions. Senior counsel for VicPol sought to raise an issue regarding the proposed referral of VicPol’s public interest immunity (‘PII’) claims to a judicial registrar, but agreed that, provided at least two judges made an order delegating authority to the judicial registrar to consider the matter, no issue could be taken with the judicial registrar’s power to decide VicPol’s PII claims. However, senior counsel said that VicPol’s preference was nonetheless to have its claims determined by a judge or judges of this Court, given what were described as ‘the extreme or weighty safety considerations’ outlined in the submission and the confidential affidavits that had been filed. Maxwell P stated that he had complete confidence in the capacity of a judicial registrar, Irving JR, to assess the weight to be attached to those concerns within the established legal framework and that, VicPol having properly acknowledged that there was no novel legal point to be considered, he was not persuaded of the need to ‘move out of the existing process’.
As we understand it, ‘the existing process’ was understood by all present to be the referral of disputes over the production of documents to Irving JR for hearing and determination.
Irving JR (as his Honour then was) was the Registrar of the Court of Appeal and the Registrar of Criminal Appeals until 2 March 2020, when Pedley JR was appointed to these roles. On 11 March 2020, the Chief Justice addressed an Assignment of Duties to Irving JR in the following terms:
In addition to your existing duties, pursuant to s 113C and s 113N of the Supreme Court Act 1986 I assign you to undertake the duties in relation to the management of criminal appeals and applications where a ground of appeal relates to the police informant Nicola Gobbo and in relation to civil proceedings of S APCI 2017 0082, S APCI 2017 0083 and S APCI 2017 0087 by exercising the powers and functions of the Registrar of the Court of Appeal in those matters.
(‘the Assignment of Duties’)
At the mention, Maxwell P clearly stated his intention that Irving JR continue the process already commenced and used in other ‘Lawyer X’ matters. His Honour said:
What I have in mind, I think sitting here, is that I will ask Judicial Registrar Irving to embark on the process on the papers, that is to say familiarise himself with what is there, what has been redacted, and of course he will be informed, [counsel for the applicant], of your request to make oral submissions and to have amicus appointed. In the first instance, I will look to the judicial registrar to take a view about how we proceed, and naturally through Judicial Registrar Pedley there will also be communication with you and with [senior counsel for VicPol] or VGSO.
The President concluded, after hearing from counsel for the AFP:
[O]bviously the simple thing will be for us to give Judicial Registrar Irving a transcript of what’s transpired to enable him to manage things from here. Certainly we will make sure that whatever order needs to be in place to delegate the power to him for this matter is in place immediately.
On that same day, 19 February 2021, Maxwell P and Emerton JA made an order ‘on the papers’ as follows:
The hearing of objections to redactions to documents produced by the Chief Commissioner of Victoria Police, including redactions on the basis of public interest immunity, is referred to a Judicial Registrar for hearing and determination.
(‘the JR referral’)
The JR referral recorded in ‘Other matters’ a chronology of the steps taken by VicPol and the applicant in relation to the dispute about the production of documents. The JR referral was plainly directed to having Irving JR conduct the hearing and determine the objections raised.
The JR referral did not refer to objections to production made by either the AFP or the ACIC.
On 27 July 2021, Irving JR became an associate judge of the Court.
On 25 August 2021, some months after the JR referral, but shortly after Irving AsJ’s elevation, three judges of this Court made an order in the proceeding that the following matters be referred to ‘an Associate Judge’ for hearing and determination:
(a)objections to production by the [AFP]; and
(b)insofar as they have not already been determined, objections to production by the [ACIC].
(‘the AsJ referral’).
The AsJ referral recorded in ‘Other matters’ that it was made ‘to enable Associate Justice Irving or another Associate Judge’ to determine:
(a) the AFP Commissioner’s objections to production; and
(b)insofar as they have not already been determined, the … ACIC’s objections to production.
The following day, 26 August 2021, Irving AsJ heard submissions on the PII claims made by each of the AFP, the ACIC and VicPol. In addition, the ACIC made submissions in support of its objection to producing parts of some documents on the basis of statutory prohibitions against disclosure. The respondent did not object to the PII and statutory prohibition claims and did not take an active part in the hearing or file written submissions.
On 10 November 2021, Irving AsJ published his judgment (‘Judgment’).[2] His Honour upheld the PII claims of VicPol in part, the AFP’s PII claims (in relation to what were described as ‘the Full Objection Documents’) and the ACIC’s PII and statutory prohibition claims, other than in relation to paragraphs (or part paragraphs) of seven documents (referred to as ‘documents 13–19’).
[2]Zirilli v The Queen [2021] VSCA 305.
Documents 13–19 are affidavits filed in support of warrants directed at persons other than the applicant. The ACIC maintains that they contain interception warrant information (‘IWI’) within the meaning of s 6EA of the Telecommunications (Interception and Access) Act 1979 (Cth) (‘TIA Act’).
On 26 May 2022, the ACIC applied for orders that the Judgment be varied in regard to certain findings (at [92], [93] and [128] of the Judgment) and that its PII and statutory prohibition claims be upheld in full. In the alternative, the ACIC sought to have the Judgment discharged.
The ACIC’s application was brought pursuant to s 11(5) of the Supreme Court Act 1986 (‘SCA’), which permits the Court of Appeal to discharge or vary a judgment, order or direction given or made by an associate judge or a judicial registrar.
The ACIC seeks a review of specific paragraphs of the Judgment pertaining to documents 13–19 on the following basis:
(a)The associate judge erred in stating that ‘what use is made of the information [in affidavits in documents 13–19] is a matter for Mr Zirilli and his legal representatives’.
(b)Subsection 63(2)(b) of the TIA Act specifically states that a person, such as the applicant or his legal representatives, ‘must not … make use of’ IWI. Accordingly, it was not open to the associate judge to find that the applicant or his legal representatives could make whatever use of the information they considered fit.
(c)This consideration formed part of the basis upon which the associate judge performed the balancing requirement under the claim for public interest immunity. In so doing, the primary judge’s decision was affected by error.
(d)The associate judge erred in concluding that the public interest in disclosure outweighed the public interest in maintaining confidentiality.
Incidentally, the ACIC also brought to the attention of the Court its concern that the AsJ referral was made without power, as it had been unable to identify any power conferred by statute or regulation supporting a referral by the Court of Appeal to an associate judge (as opposed to a judicial registrar) in a criminal matter.
The ACIC’s concern prompted the Court to hear submissions from the ACIC, the applicant, the respondent, the AFP and VicPol about the validity of the AsJ referral and the status of the Judgment.
The applicant and the respondent both submitted that the Judgment should be discharged, as Irving AsJ was not validly authorised to deliver it. The ACIC did not take issue with this proposition but filed a submission proposing a possible ‘cure’ for the defect identified, which we consider below. The AFP did not take a position on the validity (or otherwise) of the AsJ referral or the status of the Judgment, but submitted that any rehearing of its objections to production could be done ‘on the papers’ and on the basis of material already filed. VicPol submitted that the Judgment was valid until set aside and, it having already produced documents that complied with the Judgment, there should be no re-litigation of its PII claims.
For the reasons that follow, we have concluded that the Judgment must be discharged. A Court of Appeal comprised of three judges will consider anew the objections to production raised by the ACIC and the AFP. The applicant informed the Court that he does not seek to re-agitate the dispute about the VicPol PII objections to production. As a consequence, the Court will not reconsider those objections.

Was the AsJ referral within power?

Statutory framework

Section 75A(2A) of the Constitution Act 1975 provides that the Court of Appeal may be constituted by an associate judge ‘in the case of a proceeding for which provision is made by an Act or enactment or by Rules of Court for the Court of Appeal to be so constituted’.
It is therefore necessary to identify a statutory provision or a rule of the Court providing for an associate judge to sit as the Court of Appeal in the proceeding. The proceeding is a criminal proceeding, being an application for leave to appeal against a conviction under s 274 of the CPA. The dispute adjudicated by Irving AsJ concerned compliance with an order made by this Court under pt 6.3 of the CPA, which describes the powers and procedures applicable to an appeal to this Court in a criminal matter.
The situation is complicated by the fact that, historically, the Court of Appeal has been serviced by registrars — specifically, the Registrar of the Court of Appeal and the Registrar of Criminal Appeals — rather than by associate judges. The powers and duties of each of these Registrars are set out in the SCA,[3] and the judicial officer holding these offices continues to exercise these powers and to carry out the duties described, along with those assigned by the Chief Justice.
[3]See ss 113N–113P.
Sections 10 and 11 of the SCA, which deal with the jurisdiction and powers of the Court of Appeal and how the Court of Appeal is constituted, make no express provision for an associate judge to determine an application (or part of an application) under the CPA.
However, s 11(4) of the SCA provides that ‘the Rules may provide that the jurisdiction and powers of the Court of Appeal may, in particular kinds of applications or proceedings, be exercised by an Associate Judge’. Likewise, s 11(4A) states that ‘the Rules’ may provide for judicial registrars to exercise the jurisdiction and powers of the Court of Appeal in ‘particular kinds of applications or proceedings’.
Section 11(5), which provides for the discharge or variation of a judgment, order or direction given or made by an associate judge or a judicial registrar, plainly contemplates that both an associate judge and a judicial registrar may exercise the powers of the Court of Appeal. Sub-sections 11(7) and (8) of the SCA then provide:
(7)Subject to subsection (5), a judgment, order or direction given or made by an Associate Judge when exercising the jurisdiction and powers of the Court of Appeal has effect as a judgment, order or direction of the Court of Appeal.
(8)Subject to subsection (5), a judgment, order or direction given or made by a judicial registrar when exercising the jurisdiction and powers of the Court of Appeal has effect as a judgment, order or direction of the Court of Appeal.
Section 17(1A) of the SCA recognises that the Trial Division of the Court may be constituted by an associate judge to determine all matters not required to be heard and determined by the Court of Appeal or by the Trial Division constituted by a judge of the Court. Likewise, s 17AA provides for the business of the Trial Division, be it criminal or civil, to be disposed of by a judicial registrar if, in substance, the Rules of the Court so provide.
The SCA makes no provision for an associate judge to constitute the Court of Appeal in the broad terms contained in s 17(1A) in respect of the Trial Division. Nor is there any provision in the CPA conferring jurisdiction and power on an associate judge to constitute the Court of Appeal in criminal matters.
However, s 111(2) of the SCA provides:
(2) Any Associate Judge may carry out the duties and functions of the Registrar of the Court of Appeal or the Registrar of Criminal Appeals—
(a) if the person assigned to those duties is absent or temporarily unable to perform those duties; or
(b) for the purposes of the effective conduct of the general business of the Court.
Sections 113O and 113P of the SCA describe the functions and duties of the Registrar of the Court of Appeal and the Registrar of Criminal Appeals respectively, in almost identical terms. Section 113O provides:
113O Functions of Registrar of the Court of Appeal
Subject to section 113C(3), the Registrar of the Court of Appeal is, subject to the general direction and control of the President and to the Rules, responsible for—
(a) the preliminary examination of all applications and appeals made to the Court of Appeal, including all applications made to the Court of Appeal under Part 6.3 or 6.4 of Chapter 6 of the Criminal Procedure Act 2009 and the Rules;
(b) taking any action he or she is authorised or required by the President or the Rules to take to ensure the efficient and expeditious despatch of those applications and appeals to the Court of Appeal;
(c) subject to section 11(4A), performing other duties and exercising other powers and authorities that are imposed or conferred on him or her by the President, this Act or any other Act or the Rules.
Further, s 113C of the SCA provides for the Chief Justice to assign duties to a judicial registrar in the following terms:
113C Assignment of duties
(1)The Chief Justice may assign duties to a judicial registrar.
(2)A judicial registrar must—
(a) carry out the duties that are from time to time assigned to him or her by the Chief Justice; and
(b) subject to sections 11(4A) and 17AA, perform the duties and exercise the powers and authorities imposed or conferred on him or her by or under this Act or any other Act or by the Rules.
(3)The Chief Justice has responsibility for the administration of the business of the judicial registrars and the orderly and expeditious exercise of their functions and powers.
There being no relevant conferral of jurisdiction upon associate judges in the SCA, it is necessary to turn to the Rules of the Court to see whether there is a conferral under the Rules, as contemplated by s 11(4) and (4A) of the SCA.
The Supreme Court (Criminal Procedure) Rules 2017 (‘Criminal Procedure Rules’) confer authority on associate judges under r 3A.10. However O 3A applies to appeals on a question of law under pt 6.2 of ch 6 of the CPA, being appeals from the Magistrates’ Court to the Supreme Court on a question of law and in relation to the Children, Youth and Families Act 2005.
Otherwise, r 1.16 of the Criminal Procedure Rules provides:
Unless these Rules specifically provide otherwise, any application and exercise of any powers and authorities in relation to a proceeding or any other matter to which these Rules apply shall be heard and determined by the Trial Division constituted by a Judge of the Court or the Court of Appeal, as the case requires.

Likewise, there is no provision in the Supreme Court (General Civil Procedure) Rules 2015 (‘Civil Procedure Rules’) for the Court of Appeal to refer to an associate judge the power to rule on applications under the CPA. In this context, we observe that r 84.03 of the Civil Procedure Rules provides that a judge of the Court may refer matters to a judicial registrar ‘(whether civil or criminal)’, and that in Polimeni v The Queen,[4] this Court determined that an application under s 317 may be referred to a judicial registrar under r 84.03 of the Civil Procedure Rules. However, r 84.03 does not provide for the referral of matters to an associate judge.
[4][2022] VSCA 20.
No referral to a judicial registrar has been made in respect of the hearing and determination of the AFP’s or the ACIC’s objections to production under the orders made pursuant to s 317 of the CPA.

Submissions

The issue before us is whether, as the respondent submits, the Judgment should be set aside because the AsJ referral was made without power.
The applicant and the respondent submit that there is no rule that specifically provides for an associate judge to hear and determine the applications arising out of the orders made by the Court of Appeal pursuant to s 317 of the CPA. Rather, ‘the exercise of any powers and authorities’ in relation to the proceeding must be heard and determined by the Court of Appeal: r 1.16 of the Criminal Procedure Rules.
The applicant further submits there can be no application of the Court’s inherent jurisdiction, as an associate judge is appointed pursuant to statute and the powers afforded to that office are limited by statute. Accordingly, the only appropriate remedy is for the Court to discharge the Judgment pursuant to s 11(5) of the SCA.
The ACIC does not take issue with the submissions made by the applicant and the respondent concerning the lack of power to authorise Irving AsJ to hear and determine the objections to the production ordered pursuant to s 317 and deliver the Judgment. However, it sets out a pathway that it suggests may preserve the validity of the Judgment. It proposes the following steps:
(a)Pursuant to r 1.14 of the Criminal Procedure Rules and r 84.03 of the Civil Procedure Rules, the Court of Appeal could correct the JR referral so that it included the hearing and determination of objections by the ACIC and the AFP.
(b)Pursuant to r 1.06.1 of the Criminal Procedure Rules, the Court could declare that in circumstances where Irving JR had part-heard the objections and was familiar with the materials and matters in issue and had recently been appointed to the position of associate judge, the efficient use of court resources required him to hear and determine the objections instead of a judicial registrar.
According to the ACIC, this would involve retrospectively holding that in delivering the Judgment, Irving AsJ validly constituted the Court of Appeal and the Judgment was therefore made within jurisdiction.

Discussion

We accept the submissions of the parties that the AsJ referral was not supported by any statutory power or by the Rules of the Court, as it was required to be. There is an evident and unfortunate lacuna in the statutory framework for referrals to be made from the Court of Appeal to associate judges in criminal matters.
It is therefore necessary to consider whether the ‘cure’ proposed by the ACIC is available. As discussed, the ‘cure’ involves two stages: the application of the ‘slip rule’ to bring the hearing and determination of the AFP and ACIC objections into the JR referral; and the use of the power of an associate judge to perform the duties and functions of the Registrar of Criminal Appeals in certain circumstances.
It is plain that when the JR referral was made, it was the intention of the Court that the referral of all objections to the s 317 orders be dealt with by a judicial registrar and, in particular, by Irving JR (as his Honour then was). The transcript of the mention conducted on 19 February 2021 makes it clear that Maxwell P intended that all of the objections to the s 317 orders be dealt with by the same judicial officer, namely Irving JR. Irving JR had been given a specific assignment of duties for that and related purposes. It is not clear why the referral of the AFP and ACIC objections was not made at the same time as the JR referral, which referred only the VicPol objections. At the relevant time in February 2021, it was the Court’s intention to refer all the objections to Irving JR. However, as explained below, the issue is not whether the Court intended to make orders to that effect, but whether it intended to achieve that result by the particular order that was actually made, namely the JR referral.
Rule 1.14 of the Criminal Procedure Rules confirms that the inherent power of the Court to ‘correct a clerical mistake in a judgment or order or an error arising in a judgment or order from any accidental slip or omission’ may be exercised at any time.
The exercise of the Court’s inherent jurisdiction to correct an order requires there to be a ‘clerical mistake’ or an error arising from an ‘accidental slip or omission’. The Court cannot correct a deliberate decision.[5] As the High Court explained in Burrell v The Queen:
The power to correct an error arising from accidental slip or omission, whether under a specific rule of court or otherwise, directs attention to what the court whose record is to be corrected did or intended to do. It does not permit reconsideration, let alone alteration, of the substance of the result that was reached and recorded.[6]
[5]See Ivanhoe Gold Corporation Ltd v Symonds (1906) 4 CLR 642, 669–70 (Higgins J); Arnett v Holloway [1960] VR 22.
[6](2008) 238 CLR 218, 224–5 [21] (Gummow ACJ, Hayne, Heydon, Crennan and Kiefel JJ); [2008] HCA 34.
In this case, the use of the inherent power confirmed in r 1.14 would involve making additional persons (the AFP and the ACIC) subject to an order that otherwise makes no reference to the s 317 orders directed to them, their documents or their objections to producing those documents. Further, the matters described in ‘Other matters’ in the JR referral, although not part of the formal orders, have no bearing on the dispute between either the AFP or the ACIC and the applicant in relation to the production of documents. It is quite clear that these absences are not accidental; nor can they be ascribed to a clerical mistake. The JR referral is specific to VicPol. In short, although the transcript of the hearing before Maxwell P makes it clear that it was ultimately intended to refer the AFP and ACIC objections to a judicial registrar, there is nothing to suggest that this was the intended scope of the JR referral. That order itself contains no indication to that effect, and is quite to the contrary.
Moreover, even if the referral of the power to hear and determine the objections made by the AFP and the AFIC could be retrospectively included in the JR referral under the ‘slip rule’, we are not persuaded that r 1.06.1 of the Criminal Procedure Rules empowers an associate judge to hear and determine the merits of those objections in any event.
Rule 1.06.1 provides:
Where circumstances so require, an Associate Judge may hear and determine an application under these Rules instead of the Registrar.
By r 1.05(1), the ‘Registrar’ who is taken by r 1.06.1 to be empowered to hear and determine the application under the Rules is the Registrar of Criminal Appeals. However, the Registrar of Criminal Appeals is not specifically empowered by the Criminal Procedure Rules to make an order under s 317 of the CPA or to hear and determine an objection to the production of documents required by such an order. In this case, that power was the subject of a specific referral to a judicial registrar, Irving JR, presumably pursuant to r 84.03 of the Civil Procedure Rules. We are prepared to assume, for the sake of argument, that the JR referral could be construed as a referral to the judicial registrar exercising the powers and duties of the Registrar of Criminal Appeals, on the basis that, although Irving JR was not at the time of the JR referral the Registrar of Criminal Appeals, he was undertaking some of the duties of that office pursuant to the Assignment of Duties. However, for r 1.06.1 to apply, the application must be ‘an application under these Rules’. Part 6 of the Criminal Procedure Rules describes applications that may be made under pt 6.3 div 7 of CPA, and does not include the adjudication of objections to the production of documents pursuant to a s 317 order. The raising of such objections involves, at best, an application under the CPA, rather than an application under the Criminal Procedure Rules.
It is possible that s 111(2) of the SCA would provide an alternative to the second step of the proposed ‘cure’. Section 111(2) refers to the ‘duties and functions’ of the Registrar of the Court of Appeal (and the Registrar of Criminal Appeals). Those duties and functions are as described in ss 113O and 113P of the SCA, read together with s 113C. As discussed, the ‘duties and functions’ of the Registrar of the Court of Appeal (and the Registrar of Criminal Appeals) do not, in the absence of a valid referral of power, include the making of orders under s 317 of the CPA or the hearing and determination of objections to the production of documents required by such an order. However, if the JR referral is construed as a referral to the judicial registrar exercising the powers and duties of the Registrar of the Court of Appeal, then, by virtue of the Assignment of Duties, at the relevant time and in the context of ‘Lawyer X’ matters, that person was Irving JR. On the basis that the exercise of jurisdiction under the JR referral was among the duties of the Registrar of the Court of Appeal, it could plausibly be argued that, in his later capacity as an associate judge, Irving JR could continue to carry out those duties (and related functions) for the purpose of the effective conduct of the general business of the Court, pursuant to s 111(2)(b) of the SCA.
It is unnecessary for us finally to determine this question, as we have already decided that the ‘slip rule’ was not attracted in this case. The JR referral therefore did not extend to the determination of the AFP and ACIC objections in any event.

Disposition

The Judgment will be discharged. As noted earlier, the applicant and VicPol are prepared to proceed on the basis decided by Irving AsJ. In light of some of the issues raised, and in the interests of their effective disposition, the AFP and ACIC objections will be listed for hearing by the Court constituted by three judges.
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[2022] VSCA 192

9 September 2022