Woss v. Jacobsen

60 ALR 313

---

(Decision by: Davies J)

Re: Ronald Warren Woss
And: Johannes Jacobsen and Con Zempilas

Court:

Judges: Toohey J

Davies JSpender J

Subject References:
Administrative Law

Judgment date: 5 June 1985

---

Decision by:
Davies J

This is an appeal from a judgment of a single Judge of this Court dismissing an application to review a decision of the second respondent, a Stipendiary Magistrate, made on 27 July 1984 , in the Court of Petty Sessions in Perth, under s.18 of the Service and Execution of Process Act 1901 (Cth) ("the SEP Act").

On 28 February 1984 , a Stipendiary Magistrate in Queensland issued seven (7) warrants for the arrest of the appellant on charges against paragraph 86(1)(e) of the Crimes Act 1914 (Cth) ("the Crimes Act"). That paragraph makes it an indictable offence to conspire with another to defraud the Commonwealth. Each warrant was issued under s.57 of the Justices Act 1886-1979 (Qld) and was endorsed under the SEP Act for execution in Western Australia.

Section 18(1) of the SEP Act provides:

"18(1)

Where a Court, a Judge, a Police, Stipendiary or Special Magistrate, a Coroner, a Justice of the Peace or an officer of a court has, in accordance with section sixteen or the law of a State or part of the Commonwealth, issued a warrant for the apprehension of a person, a Magistrate, Justice of the Peace or officer of a court who has power to issue warrants for the apprehension of persons under the law of another State or part of the Commonwealth, being a State or part of the Commonwealth in or on his way to which the person against whom the warrant has been issued is or is supposed to be, may, on being satisfied that the warrant was issued by the Court, Judge, Magistrate, Coroner, Justice of the Peace or officer (after proof on oath, in the case of a warrant issued by a Magistrate, Coroner, Justice of the Peace or officer of a court, of the signature of the person by whom the warrant was issued), make an endorsement on the warrant in the form, or to the effect of the form, in the Second Schedule to this Act, authorizing its execution in that other State or part of the Commonwealth."

The warrants issued in Queensland were duly endorsed under this sub-section and, pursuant to the authority conferred by s.18(2) of the SEP Act, the appellant was arrested and brought before the second-named respondent, a Stipendiary Magistrate in the Court of Petty Sessions at Perth. Section 18 of the SEP Act further provides:

"18(3)

Subject to this section, the Magistrate or Justice of the Peace before whom the person is brought may-

(a)

by warrant under his hand, order the person to be returned to the State or part of the Commonwealth in which the original warrant was issued and, for that purpose, to be delivered into the custody of the person bringing the warrant or of a constable or other person to whom the warrant was originally directed; or

. . . . .

(6)

If, on the application of the person apprehended, it appears to the Magistrate or Justice of the Peace before whom a person is brought under this section that-

(a)

the charge is of a trivial nature;

(b)

the application for the return of the person has not been made in good faith in the interests of justice; or

(c)

for any reason, it would be unjust or oppressive to return the person either at all or until the expiration of a certain period,

the Magistrate or Justice of the Peace may-

(d)

order the discharge of the person;

(e)

order that the person be returned after the expiration of a period specified in the order and order his release on bail until the expiration of that period; or

(f)

make such other order as he thinks just."

On 27 July 1984 , the learned Magistrate discharged the appellant in respect of five (5) of the warrants on the basis that it would be unjust and oppressive to return the appellant to Queensland, but in respect of the remaining two (2) warrants, he ordered the return of the appellant to Queensland.

The decision of the learned Magistrate was one to which the Administrative Decisions (Judicial Review) Act 1977 (Cth) ("the ADJR Act") applied, being a decision of an administrative character made under an enactment as defined in that Act. The appellant, being a person aggrieved by the decision, applied to the Federal Court of Australia under s.5(1) of the ADJR Act for an order of review in respect of the decision to return him to Queensland. A number of grounds were put forward to support the application, but the learned trial Judge dealt with only one of them. His Honour held that the warrants issued by the Queensland Magistrate had been issued "in accordance with . . . the law of a State" for the purposes of s.18(1) of the SEP Act, notwithstanding that jurisdiction to deal with the offences charged, offences under para.86(1)(e) of the Crimes Act, was conferred upon the Queensland Courts by s.68 of the Judiciary Act 1903 (Cth).

The submission that the warrants were not warrants issued in accordance with or under the law of a State but rather were issued under Commonwealth law was one of the arguments which was put to this Court in this appeal.

The SEP Act was enacted pursuant to s.51(xxiv) of the Constitution, the operation of which was described by Dixon CJ, McTiernan, Williams, Webb, Fullagar, Kitto and Taylor JJ, in Aston v Irvine (1955) 92 CLR 353 , at p.364, as follows:

" . . . The nature of this power, as well as the prior history of the subject to which it relates, provides strong ground for interpreting it as enabling the federal legislature to regulate the manner in which officers of the law in one State should act with reference to the execution of the process of another State. It is a legislative power given to the central legislature for the very purpose of securing the enforcement of the civil and criminal process of each State in every other State. It is given to the central legislature because before federation it had been found that territorial limitations upon colonial power made the effective reciprocal action of the colonies in this field difficult, to the point of impossibility: see, for example, Ray v. M'Mackin (1875) 1 VLR(L) 274 , and other cases cited in Quick & Garran, The Annotated Constitution of the Australian Commonwealth (1901), pp.614-619. It is a power to be exercised in aid of the functions of the States and does not relate to what otherwise is a function of the Commonwealth. . . . ".

It is to be noted that a court of a State does not cease to be such when it exercises Federal jurisdiction invested under s.77(iii) of the Constitution. In Le Mesurier v Connor (1929) 42 CLR 481 , Knox CJ, Rich and Dixon JJ said, at p.495-6:

" . . . 'The Constitution, by chapter III., draws the clearest distinction between Federal Courts and State Courts, and while enabling the Commonwealth Parliament to utilize the judicial services of State Courts recognizes in the most pronounced and unequivocal way that they remain "State Courts"' (per Isaacs J. in R. v. Murray and Cormie (1916) 22 C.L.R., at p.452, and see per Higgins J. (1916) 22 C.L.R., at p.464, and Gavan Duffy J. and Rich J. (1916) 22 C.L.R., at p.471). The Parliament may create Federal Courts, and over them and their organization it has ample power. But the Courts of a State are the judicial organs of another Government. They are created by State law; their existence depends upon State law; that law, primarily at least, determines the constitution of the Court itself, and the organization through which its powers and jurisdictions are exercised. . . . ".

The SEP Act is to be read in this light and operates with respect to the process of a court issued in accordance with State law whether the court be exercising State jurisdiction or invested Federal jurisdiction. Similarly, the warrants with which this appeal is concerned were issued "in accordance with" the Justices Act 1886-1979 (Qld) for s.68(1) of the Judiciary Act and the investment of the Federal jurisdiction upon State courts "extends the operation of the State enactment and applies it to . . . offenders against the Federal law". See Seaegg v R (1932) 48 CLR 251 at p.255 in the judgment of Rich, Dixon, Evatt and McTiernan JJ and Lamb v Moss (1983) 49 ALR 533 in the judgment of Bowen CJ, Sheppard and Fitzgerald JJ at p.560. I agree with the learned trial Judge on this point.

Having formed the view that the SEP Act applied to the warrants, the learned trial Judge next concluded that the Supreme Court of Western Australia had jurisdiction to hear an appeal against the learned Magistrate's decision, pursuant to s.19 of the SEP Act and that such a proceeding was a more appropriate proceeding to review the decision of the Magistrate than was an application under the ADJR Act. Accordingly, in exercise of the dscretion conferred by s.10 of the ADJR Act, he dismissed the application. His Honour's findings on both matters were challenged in the appeal.

I therefore turn to the provisions of ss.9 and 10 of the ADJR Act which read, inter alia,

"9(1)

Notwithstanding anything contained in any Act other than this Act, a court of a State does not have jurisdiction to review-

(a)

a decision to which this section applies that is made after the commencement of this Act;

(b)

conduct that has been, is being, or is proposed to be, engaged in for the purpose of making a decision to which this section applies;

(c)

a failure to make a decision to which this section applies; or

(d)

any other decision given, or any order made, by an officer of the Commonwealth or any other conduct that has been, is being, or is proposed to be, engaged in by an officer of the Commonwealth, including a decision, order or conduct given, made or engaged in, as the case may be; in the exercise of judicial power.

(2)

In this section-

'decision to which this section applies' means-

(a)

a decision that is a decision to which this Act applies; or

(b)

a decision of an administrative character that is included in any of the classes of decisions set out in Schedule 1, other than paragraphs (m) and (n);

. . . . . ;

'review' means review by way of-

(a)

the grant of an injunction;

(b)

the grant of a prerogative or statutory writ (other than a writ of habeas corpus) or the making of any order of the same nature or having the same effect as, or of a similar nature or having a similar effect to, any such writ; or

(c)

the making of a declaratory order.

. . . . .

10(1)

The rights conferred by sections 5, 6 and 7 on a person to make an application to the Court in respect of a decision, in respect of conduct engaged in for the purpose of making a decision or in respect of a failure to make a decision-

(a)

are in addition to, and not in derogation of, any other rights that the person has to seek a review, whether by the Court by another court, or by another tribunal, authority or person, of that decision, conduct or failure; and

. . . . .

(2)

Notwithstanding sub-section (1)-

. . . . .

(b)

the Court may, in its discretion, refuse to grant an application under section 5, 6 or 7 that was made to the Court in respect of a decision, in respect of conduct engaged in for the purpose of making a decision, or in respect of a failure to make a decision, for the reason-

(i)

that the applicant has sought a review by the Court, or by another court, of that decision, conduct or failure otherwise than under this Act; or

(ii)

that adequate provision is made by any law other than this Act under which the applicant is entitled to seek a review by the Court, by another court, or by another tribunal, authority or person, of that decision, conduct or failure.

(3)

In this section, 'review' includes a review by way of reconsideration, re-hearing, appeal, the grant of an injunction or of a prerogative or statutory writ or the making of a declaratory or other order."

The alternative means of review which his Honour preferred was that provided by s.19 of the SEP Act. The section reads, inter alia,

"19(1)

Where-

(a)

a person apprehended is dissatisfied with an order made under sub-section (3) or (6) of the last preceding section; or

(b)

a Magistrate or Justice of the Peace has made, under sub-section (3) or (6) of the last preceding section, an order for the discharge of an apprehended person, or an order for the return or admittance to bail of such a person under the terms of which the person is not, or may not be, required to return or be returned within three months after the date of the order to the State or part of the Commonwealth in which the original warrant was issued,

the apprehended person or the person bringing the warrant, as the case requires, may apply to a Judge of the Supreme Court of the State or part of the Commonwealth in which the person was apprehended, sitting in chambers, for a review of the order, and the Judge may review the order.

(2)

A Judge to whom an application is made for the review of an order may-

(a)

order the release on bail of the apprehended person on such terms and conditions as the Judge thinks fit; or

(b)

direct that the apprehended person be kept in such custody as the Judge directs in the State or part of the Commonwealth in which the person is apprehended until the order has been reviewed.

(3)

The review of the order shall be by way of rehearing, and evidence in addition to, or in substitution for, the evidence given on the making of the order may be given on or in connexion with the review.

. . . . .

(5)

Upon the review of an order, the Judge may confirm or vary the order, or quash the order and substitute a new order in its stead.

(6)

The order as confirmed or varied, or the substituted order, shall be executed according to its tenor as if it had been made by the Magistrate or Justice of the Peace."

The first issue is whether that means of review is precluded by the provisions of s.9 of the ADJR Act. In that section, the term "review" is not used in the wide sense in which it is used in s.10, which refers to " 'review' . . . by way of reconsideration, re-hearing, appeal, the grant of an injunction or of a prerogative or statutory writ or the making of a declaratory or other order." Rather it is defined as review by way of the grant of an order, an injunction, a prerogative or statutory writ or a declaratory order. In this respect, s.9 follows the general pattern of the ADJR Act in which an applicant to the Court applies for an order of review. If the Court grants the application, it may make orders as described in s.16, orders of the type which formerly may have been granted by a prerogative writ or by way of injunction or declaratory order.

The ADJR Act does not expressly state what is to be the nature of the review under that Act in the sense of the consideration which is to be undertaken by the Court when dealing with an application for an order of review. However, it is clearly implied from the grounds of review specified and from the nature of the orders that may be granted, that the ADJR Act has in mind that the Court will undertake a review process of a nature similar to that evolved by the common law and which may be concisely described as judicial review of administrative action. As Mr Justice Toohey said in Bannister v See (1982) 42 ALR 78 at p.81,

"The term 'review' is not one of precision. It may, as in the notion of judicial review of administrative action, subject an administrative decision to scrutiny by a court on a variety of grounds including error of law, excess of power and breach of the rules of natural justice. That is the sense in which it is used in the Administrative Decisions (Judicial Review) Act itself."

The nature of such review emerges from the philosophy underlying it. The common law developed principles for the control of the acts and decisions of officers of the government and of statutory authorities exercising administrative power. Fundamental to the development was the concept of the rule of law. As the Fifth Edition of Wade's "Administrative Law" states, at pp.4-5-

" . . . This, at any rate, is the heart of the subject. The governmental power in question is not that of Parliament: Parliament as the legislature is sovereign and beyond legal control. But the powers of all other public authorities are subordinated to the law, just as much in the case of the Crown and ministers as in the case of local authorities and other public bodies. All such subordinate powers have two inherent characteristics. First, they are all subject to legal limitations; there is no such thing as absolute or unfettered administrative power. Secondly, and consequentially, it is always possible for any power to be abused. . . .

The primary purpose of administrative law, therefore, is to keep the powers of government. within their legal bounds, so as to protect the citizen against their abuse. The powerful engines of authority must be prevented from running amok. . . .

As well as power there is duty. It is also the concern of administrative law to see that public authorities can be compelled to perform their duties if they make default. . . . ".

At p.6, Professor Wade states:

"The whole of administrative law, indeed, may be treated as a branch of constitutional law, since it flows directly from the constitutional principles of the rule of law and the sovereignty of Parliament, and it does much to determine the balance of power between the state and the citizen. . . . ".

Thus, the function of review which is conferred upon the Federal Court of Australia under the ADJR ACT is the function of ensuring that persons and authorities conferred power by enactments of the Parliament shall, when acting in exercise of those powers, act within power and in accordance with power. That function is performed by the Court not merely in the final order by way of review which the Court may choose to make but also and primarily in the consideration anterior thereto which the Court gives in reaching its decision to grant or refuse such an order.

Conformably therewith, when s.9 withdraws from the courts of the States jurisdiction to review decisions, conduct and the like to which the ADJR Act applies, the section withdraws from those courts not merely the power to grant in a relevant case a final order of review by way of injunction, prerogative or statutory writ or declaratory order, but also the authority to exercise judicial review over the decisions, conduct and the like, specified in the section. The definition of review contained in s.9(2) serves as a concise means of defining the function of review with which the section deals and s.9(1) withdraws from the courts of a State jurisdiction to exercise the function of review so defined. Thus, the sub-section excludes a court of a State from exercising the function of judicial review of the administrative decisions and conduct therein referred to. This was the view adopted in Clyne v Deputy Commissioner of Taxation (1983) 1 NSWLR 110, Appliance Holdings Pty Limited v Lawson (1983) 1 NSWLR 246 and Nomad Industries of Australia Pty Limited v Commissioner of Taxation (1983) 2 NSW LR 56 with which in this respect I agree.

The ADJR Act does not withdraw from the courts of the States any other and different powers of review. Section 10 refers to review by way of reconsideration, re-hearing and appeal. In any case where the court of a State in such a proceeding is concerned not with the legality of a decision or conduct, having regard to the facts which were known to the decision-maker at the time of the decision or conduct under review, but rather with the correct decision to be made on the facts as presented to the court, the function the court performs will be distinctly different from the function of review under the ADJR Act for it will involve, expressly or by inference, the exercise of the decision-making power.

Section 19 of the SEP Act confers upon a Judge of the Supreme Court of a State not the function of judicial review of the Magistrate's decision but authority to exercise the primary power. Section 19(3) provides that the review shall be by way of rehearing and evidence in addition to and in substitution for the evidence given on the making of the Magistrate's order may be given in the review. Section 19(5) provides that the Judge may confirm or vary the Magistrate's order or may quash the order and substitute a new order in its stead. And s.19(6) provides that the order as confirmed or varied or the substituted order shall be executed as if it had been made by the Magistrate.

In my opinion, that function is not withdrawn from the courts of the States by s.9 of the ADJR Act. Section 19 of the SEP Act confers a jurisdiction upon courts of the States similar to the function which ss.187 and 196 of the Income Tax Assessment Act 1936 (Cth) confer upon such courts to review decisions of the Commissioner of Taxation and of Taxation Boards of Review and to the function which ss.32, 146 and 150 of the Patents Act 1952 (Cth) confer upon them to hear appeals from directions and decisions of the Commissioner of Patents. The ADJR Act is not concerned with functions of review of that nature, in which the court is concerned not with the legality of the decision under review but with what should be the correct decision having regard to the facts as proved to the Court in the proceedings before it.

If I were wrong in the above views, I would nevertheless hold that an order of a Supreme Court of a State under s.19 of the SEP Act is not an order as defined in s.9(2) of the ADJR Act. Under s.19(5) and (6) of the SEP Act, the Judge of the Supreme Court shall confirm or vary the Magistrate's order or quash the order and substitute a new order in its stead. The order as confirmed or varied or the substituted order is to be executed as if it had been made by the Magistrate. An order of this nature takes effect as if it were an exercise of the primary decision-making power. The orders defined in s.9(2) of the ADJR Act have a distinctly different operation. They may quash the decision under review, or they may declare it to be valid or invalid or they may restrain or order its implementation. But they do not take effect as if they were an exercise of that power.

I am therefore of the view that the alternative mode of review conferred by s.19 of the SEP Act is not excluded by s.9 of the ADJR Act.

It was next argued in the appeal that the learned trial Judge wrongly exercised his discretion under s.10 of the ADJR Act in that he had already determined one of the issues which could otherwise be argued in an appeal to the Supreme Court of Western Australia, namely, whether the subject warrants had been issued "in accordance with . . . the law of a State". Another way of putting the argument was that, having determined the one issue, the learned trial Judge ought to have gone on to consider all other issues raised in the application before him.

I agree that it would have been desirable for the learned trial Judge to have left all issues to be determined by the Supreme Court of Western Australia, it having jurisdiction to deal with all issues and being, in the view of the learned Judge, the appropriate body to deal with the matter.

Nevertheless, the learned Judge was not precluded from exercising his discretion at the time when he did. He entered upon a consideration of the effect of s.18 of the SEP Act as part of a course of reasoning to determine whether or not the Supreme Court of Western Australia was the more appropriate court to deal with the matter. His Honour decided that, as s.18 of the SEP Act applied to the warrants and as s.19 of that Act gave to the Supreme Court of Western Australia full power to deal with both the law and the facts of the matter, it was more appropriate that the matter should be dealt with by the Supreme Court of Western Australia than by the Federal Court of Australia.

In coming to this view, the learned trial Judge exercised a discretion. The established principles which an appeal court will apply with respect to the exercise of a discretionary judgment are well known. See Gronow v Gronow (1979) 144 CLR 549 and In the Marriage of Mallet (1984) 52 ALR 193 . In the present appeal, no sufficient ground has been put forward to justify interference with the exercise of his Honour's discretion.

Other grounds of appeal and other issues were argued in this appeal. I do not propose to consider them. They are matters which may be debated before the Supreme Court of Western Australia. It would be inappropriate for this Court to discuss them.

For the reasons I have stated, therefore, I would dismiss the appeal with costs.