Newby v. Moodie & Anor

Sheppard J

Morling J
Pincus J

Full Federal Court

Judgment date: Judgment handed down 3 June 1988.

Sheppard, Morling and Pincus JJ.

This is an appeal from a decision of a judge of the Court [reported at 88 ATC 4072] dismissing an application for relief under the Administrative Decisions (Judicial Review) Act 1977 (``the Judicial Review Act''). The appellant is a solicitor who formerly acted for clients who were engaged in what were known as Slutzkin assets stripping tax minimisation schemes and prepared legal documentation necessary to give effect to transactions involved therein. In March 1987 he was served with summonses alleging that in December 1980 and January 1981 he committed offences against the Crimes (Taxation Offences) Act 1980. The summonses were returnable before the Local Court, Sydney on 13 April 1987. The application under the Judicial Review Act was filed in this Court on 4 December 1987 and sought a review of the decision of the respondents to institute and maintain the proceedings against the appellant against the Crimes (Taxation Offences) Act. The first respondent is the informant in the proceedings and the second respondent is conducting the proceedings pursuant to the Director of Public Prosecutions Act 1983.

The grounds upon which judicial review was sought were that the decision to institute and maintain the proceedings against the appellant was contrary to law because the prosecution was oppressive and an abuse of process, and that the decision was an improper exercise of the power to prosecute, either because the respondents failed to take relevant considerations into account or because the decision was oppressive and an abuse of power, or both; see sec. 5(1)(e), (2)(b) and (2)(j). The learned trial Judge dismissed the application, being of the opinion that the decision sought to be reviewed was not within the class of decisions which are reviewable under the Judicial Review Act. His Honour expressed the view that even if a case had been made out that the decision was reviewable under the Act, he would have refused to grant relief in the exercise of his discretion.

It was common ground before the trial Judge that no period was prescribed in the Judicial Review Act for the making of an application for an order of review of the decision of which the appellant complained. In these circumstances it was open to him to refuse to entertain the application if he was of the opinion that it was not made within a reasonable time after the decision was made - see sec. 11(4). It was submitted to the trial Judge that the application was not made within a reasonable time, and that he should therefore refuse to entertain it. However, some confusion seems to have arisen during the course of the trial as to whether this submission was pressed and, in the result, it was not addressed in the learned trial Judge's reasons. Nevertheless, since a notice of contention was given in respect of this submission we must deal with it. It is a threshold submission and it is logical that we should deal with it first before passing to consider the other questions which arise on the hearing of the appeal.

It does not appear to have been argued at the trial, and it was not argued on appeal, that there is no discretion to grant an application once it is established that it was not made within a reasonable time. That is to say, it was not argued that the word ``may'' where appearing in sec. 11(4) means ``shall''. Cf.
Ward v. Williams (1955) 92 C.L.R. 496 at pp. 505-506. Since we have not heard argument on this question we do not think we should decide it. Accordingly, we make the assumption, in favour of the appellant, that there is a discretion to entertain an application even though not brought within a reasonable time.

Was the application made within a reasonable time?

When the matter came into the Local Court list on 13 April 1987 counsel for the appellant

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and his co-accused foreshadowed the making of an application to stay the proceedings on the ground that they were an abuse of process. The hearing of that application was set down for 1 December 1987. The Magistrate also set aside four weeks commencing 1 February 1988 for the hearing of the committal proceedings, presumably against the event that the stay application might not succeed. When the application was listed for hearing on 1 December counsel for the appellant did not pursue it. The application in this Court was filed on 4 December and dismissed on 24 December 1987. We were informed from the bar table that at the commencement of the hearing of the committal proceedings in the Local Court on 1 February 1988 an application was made to the Magistrate that they be stayed and that this application was refused. Thereafter, this appeal was lodged.

There was no evidence before the trial Judge as to the reason for the delay in pursuing the application under the Judicial Review Act. Having regard to the submission made at the trial that the application had not been made within a reasonable time the absence of evidence explaining the delay is surprising. In the absence of such evidence, we think it is a reasonable inference that the appellant made a deliberate decision that the Local Court was the most appropriate forum in which to pursue an application that the proceedings were an abuse of process. The application under the Judicial Review Act was, of course, different from the application which might have been made to the Magistrate. The application to this Court was to review the decision to prosecute, whereas an application to the Local Court would have been to stay the proceedings as an abuse of process. But the purpose of the application brought in this Court did not differ from the purpose of the application which the Local Court stood ready to hear on 1 December 1987. The substantive relief sought in the application in this Court was an injunction restraining the respondents from continuing the prosecution proceedings. The Magistrate could have made an order to the same effect. His jurisdiction to do so is not in doubt: see
Herron v. McGregor & Ors (1986) 6 N.S.W.L.R. 246 and
Waston v. A.-G. for New South Wales (1987) 8 N.S.W.L.R. 685.

Thus, there was not merely a long delay in seeking relief under the Judicial Review Act. It was a delay occasioned by a calculated decision to seek similar relief in the Local Court. Section 11(5) of the Judicial Review Act requires the Court, when determining whether an application is brought within a reasonable time, to have regard to the time when the applicant became aware of the making of the decision he seeks to have reviewed. The appellant became aware of the decision that he was to be prosecuted when he was served with the summonses on 26 March 1987. A period of over eight months therefore elapsed before the application to this Court was made. We think this was not a reasonable time within which to bring the application and that, accordingly, sec. 11(4)(c) of the Judicial Review Act gave the trial Judge a discretion to refuse to entertain it. In our opinion, that discretion should have been exercised against the appellant. It is convenient to defer stating our reasons for reaching this conclusion until we consider the question of discretion generally.

Our conclusion that the application should not have been entertained is sufficient to dispose of the appeal. However, as the merits of the application were fully argued before us it is appropriate that we should deal with them.

Was the decision to prosecute reviewable under the Judicial Review Act?

The learned trial Judge was of the opinion that the decision to prosecute was not reviewable under the Judicial Review Act. In reaching this conclusion he relied on a number of authorities including
Hill v. Chief Constable of West Yorkshire (1987) 2 W.L.R. 1126 at pp. 1133-1134;
Barton v. The Queen (1980) 147 C.L.R. 75 and
The Queen v. Toohey; Ex parte Northern Land Council (1981) 151 C.L.R. 170. However, we do not think those authorities are conclusive of the question whether the decision sought to be reviewed in this case was within the class of decisions made reviewable by the Judicial Review Act. The most relevant of those authorities is Toohey's case, which was concerned with the question whether a decision of the Attorney-General to present an ex officio information was reviewable at common law. That is a different question from the one presently under consideration.

Section 6 of the Director of Public Prosecutions Act provides that the functions of the Director include the institution of prosecutions for indictable offences against the laws of the Commonwealth (sec. 6(1)(a)), the

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carrying on of such prosecutions (sec. 6(1)(b)), the institution of proceedings for the commitment of persons for trial in respect of indictable offences against the laws of the Commonwealth (sec. 6(1)(c)), and the carrying on of such proceedings (sec. 6(1)(e)). Section 11 of his Act empowers the Director to give directions with respect to the prosecution of offences against the laws of the Commonwealth to, inter alia, a person who institutes or carries on prosecutions for offences against the laws of the Commonwealth. No doubt the decision of the Director sought to be challenged in the present proceedings was made pursuant to sec. 6 and 11.

In our opinion this decision was a decision to which the Judicial Review Act applies, being a decision of an administrative character made under the Director of Public Prosecutions Act. Indeed, on the hearing of the appeal counsel for the respondents did not contend to the contrary. We do not think that the definition in sec. 3(1) of the Judicial Review Act of the term ``decision to which this Act applies'' should be read down so as to exclude a decision which is plainly of an administrative character made by the Director under his Act.

We think the question is put beyond doubt by reference to the Schedules to the Judicial Review Act. Decisions in connection with the prosecution of persons for offences against the laws of the Commonwealth are not excluded from the classes of decisions to which the Act applies (Sch. 1) but are specifically excluded from the from the classes of decisions to which sec. 13 of the Act applies (Sch. 2, para. (e)(i)). We think this is a clear indication of a legislative intention that a decision to prosecute for an offence against the laws of the Commonwealth may be made the subject of an application under the Act, but that the decision-maker is not required to furnish a statement in writing of the reasons for his decision or of the other matters referred to in sec. 13.

As was said in
Lamb v. Moss (1983) 49 A.L.R. 533 at pp. 556-557, the Judicial Review Act was intended to provide remedies for wrongs done to individuals whose interests were adversely affected by administrative decisions and this Court is not justified in taking a narrow view of the wide language used by Parliament in the Act.

Was any ground for relief established?

In substance, the appellant's argument at the hearing at first instance appears to have been that by reason of the delay in the institution of the prosecution the appellant had suffered great prejudice and that, accordingly, it would be an abuse of process for the prosecution to continue. On the hearing of the appeal, while this submission was not abandoned, the main thrust of the argument was that the respondents, in deciding to institute the prosecution, had failed to first consider the personal hardship to which the appellant would thereby be exposed. This alleged failure was said to make the decision an improper exercise of the power to prosecute, in that it was an abuse of that power.

Whichever way the appellant's case is put, we think it is without substance. There is a distinction between the position of a prosecutor who decides to commence a prosecution and that of the Court in which the prosecution is brought. No doubt, in considering whether it is in the interests of justice to institute a prosecution the Director may take into account the personal circumstances of the person to be prosecuted in deciding whether the interests of justice require the prosecution to be brought. However, we think it is impossible to say that the failure of the prosecutor to give any particular weight to the personal circumstances of that person makes the decision to prosecute an abuse of power. No authority was cited in favour of such a proposition. Cases such as
Water Conservation and Irrigation Commission (N.S.W.) v. Browning (1947) 74 C.L.R. 492 at pp. 540-545;
Sean Investments Pty. Ltd. v. MacKellar (1981) 38 A.L.R. 363 at pp. 374-375 and
Elliott & Ors v. London Borough Council of Southwark (1976) 2 All E.R. 781 do not lend support to it.

There were, of course, many other matters which the Director had to consider in deciding whether he should prosecute. It was not suggested that the prosecution was brought for an improper purpose. In our opinion the decision to launch the prosecution notwithstanding the adverse affect which it would have on the appellant and without making enquiry of him was in no way an abuse of the Director's power to prosecute.

The fact that the commencement of a prosecution is not, of itself, an abuse of the power to prosecute does not necessarily lead to

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the result that it will be inappropriate for the Court before whom the prosecution comes to stay the proceedings as an abuse of its process. In Barton v. The Queen (supra) at pp. 95-96 Gibbs A.C.J. and Mason J. said:

``It is one thing to say that the filing of an ex officio indictment is not examinable by the courts; it is quite another thing to say the courts are powerless to prevent an abuse of process or the prosecution of a criminal proceeding in a manner which will result in a trial which is unfair when judged by reference to accepted standards of justice. The courts exercise no control over the Attorney-General's decision to commence criminal proceedings, but once he does so, the courts will control those proceedings so as to ensure that the accused receives a fair trial. The distinction between the court's lack of power to review the Attorney's decision whether to commence proceedings or not and the court's power to control its proceedings was central to the judgment of Lord Langdale in
Reg. v. Prosser (1848) 11 Beav. 306; 50 E.R. 834. The course which Fox J. took in
Kent (1970) 17 F.L.R. 65 when he ultimately discharged the accused on the ground that there had been no preliminary examination is to be supported, not on the basis that the Attorney-General's decision to prosecute was invalid, but on the footing that the accused would not receive a fair trial without a preliminary examination.''

Facts may be established to the satisfaction of the Court in which the appellant is tried (if he is committed) which satisfy it that the prosecution should not be permitted to continue. It may reach such a conclusion upon facts unknown to the prosecution at the time the decision to prosecute is taken. The decision it is required to make is quite different from the decision which the prosecutor must take when deciding whether to prosecute.


Cases abound in which the Court has said that the power to make an order of review in respect of committal proceedings should be exercised only in the most exceptional cases. What was said in Lamb v. Moss (supra) at p. 564 to this effect has been consistently followed in subsequent decisions of this Court. We are of the view that the same principle should be applied to applications of this sort. The High Court has recently said: ``The undesirability of fragmenting the criminal process is so powerful a consideration that it requires no elaboration from us'' (Vereker & Ors v. O'Donovan, application for special leave to appeal, 18.3.88).

Since the application in the present case was not made within a reasonable time after the decision sought to be reviewed was made, the trial Judge had, at least, a discretion to refuse to entertain the application. (As we have observed above, it may be a question whether he was obliged in law not to entertain it.) In our opinion the facts to which we have already referred ought to have led the trial Judge to conclude that he should not entertain the application. Several considerations lead us to this conclusion. First, the delay was very considerable. Secondly, the appellant made a considered decision to pursue in the Local Court his claim that the proceedings were an abuse of process. Thirdly, as the learned trial Judge pointed out, the appellant would not have suffered any prejudice had this Court refused to entertain his application because the Local Court stood ready to hear it. Finally, the Local Court or the Court in which the applicant is tried (should he be committed for trial) is so obviously the appropriate court in which the applicant should seek a stay of the prosecution that it was inappropriate that this Court's jurisdiction should be invoked.

These same circumstances compel a finding that even though the Court entertained the application to review the Director's decision to prosecute, the application should have been properly refused in the exercise of the Court's discretion. Indeed, even if there had been no delay in bringing the application and even if the Local Court had not been initially requested to determine whether the prosecution was an abuse of process, it would still have been appropriate to refuse relief on discretionary grounds. Some of the cases in which the High Court and this Court have expressed the view that once criminal proceedings have been commenced they should be allowed to follow their ordinary course except in exceptional circumstances are referred to in
Foord v. Whiddett (1985) 60 A.L.R. 269 at p. 278 et seq. and in
Murphy v. Director of Public Prosecutions (1985) 60 A.L.R. 299 at p. 302 et seq. No good purpose would be served by us

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further reviewing the authorities on this point. It is sufficient that we should say that so far from there being any exceptional circumstances in the present case which would justify the exercise by this Court of its jurisdiction under the Judicial Review Act, the circumstances are such as to make it quite inappropriate for that Jurisdiction to be exercised.

The appeal is dismissed with costs.

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