Johnson v Holmes & Ors

(1997) 49 ALD 430
BC 9705235

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(Decision by: O'Loughlin J)

Malcolm Keith Johnson v
Ralph Murray Holmes
National Crime Authority
Director of Public Prosecutions (CTH)

Court:

Judge:
O'Loughlin J

Subject References:
Administrative Law
application for judicial review of certain decisions
no time stipulated for the making of the application
whether the application was made within a reasonable time

Legislative References:
Administrative Decisions (Judicial Review) Act 1977 -
Companies (South Australia) Code 1981 -
Criminal Law Consolidation Act 1935 (SA) -
Crimes (Taxation Offences) Act 1980 (Cth) -

Case References:
Duff v Freijah - (1982) 62 FLR 280
Hunter Valley Developments Pty Ltd v Kohen - (1984) 3 FCR 344
Newby v Moodie - (1988) 83 ALR 523

Hearing date: 29 September 1997
Judgment date: 16 October 1997

Adelaide

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Decision by:
O'Loughlin J

Application pursuant to the provisions of the Administrative Decisions (Judicial Review) Act 1977 ( "the Judicial Review Act" ) for an order that the Court refuse to entertain an application for an order of review in relation to certain decisions.

On 25 June 1993 an information was laid in the Adelaide Magistrates Court alleging that Malcolm Keith Johnson, together with Michael John Fuller and Joseph Patrick Cummings, conspired to cheat and defraud at common law. A second information against Mr Johnson was laid out of the same Court on 22 February 1994 containing twenty eight counts. In the first fifteen counts, it was alleged that Mr Johnson, being an officer of a corporation, made improper use of his position to cause detriment to the corporation, contrary to the provisions of subs 229(4) of the Companies (South Australia) Code 1981 ( "the Code" ). The remaining counts allege that Mr Johnson, being a director of a public company, fraudulently applied the property of that company for a use or purpose other than the use or purpose of that company, contrary to the provisions of ss 189 and 269 of the Criminal Law Consolidation Act 1935 (SA).

At the time of the laying of the two informations, Mr Johnson was residing in the United Kingdom. On 9 December 1994, whilst still a resident of that country, he was arrested under a provisional request of the Commonwealth of Australia for his extradition and on the basis of two warrants earlier issued out of the Adelaide Magistrates Court. He was granted bail on terms and has been on bail in the United Kingdom ever since.

The Commonwealth's formal request for extradition was received in the United Kingdom on 20 January 1995 and on 18 July the Secretary of State for the United Kingdom authorised the institution of extradition proceedings against Mr Johnson. On 7 November 1995 the Bow Street Magistrates Court fixed 3 June 1996 as the date upon which the application for an order of extradition would commence. The matter duly came on for hearing and an order for extradition was made. Mr Johnson unsuccessfully appealed by way of writ of habeas corpus to the Divisional Court of the High Court and on 9 June 1997 the House of Lords refused Mr Johnson his petition for leave to appeal. I was told from the bar table that he is currently seeking judicial review of the Home Secretary's decision to affirm an order for extradition.

This brief review of relevant facts and dates establishes that Mr Johnson became aware, no later than 9 December 1994 when he was arrested, of the existence of the criminal proceedings that had been instituted against him in Australia. However, it was not until 7 July 1997, over two and a half years later, that Mr Johnson sought judicial review in this Court of various decisions that he identified as decisions relative or incidental to the ultimate decision that criminal charges be laid against him. In his amended application for judicial review filed on 11 August 1997, he nominated eleven decisions that he claimed should be reviewed by this Court. They are as follows:-

The first decision

The decision of the National Crime Authority ( "the NCA" ) to investigate and to continue to investigate the alleged offences pursuant to various References that were issued in October and November of 1991.

The second decision

The decision of all respondents to prosecute Mr Johnson for the alleged offence in the Information dated 25 June 1993.

The third decision

The decision of all respondents to issue and lay the Information dated 25 June 1993.

The fourth decision

The decision of the Commonwealth Director of Public Prosecutions ( "the DPP" ) to conduct the proceedings arising out of the laying of the Information dated 25 June 1993.

The fifth decision

The decision of all respondents to prosecute Mr Johnson for the alleged offences in the Information dated 22 February 1994.

The sixth decision

The decision of all respondents to issue and lay the Information dated 22 February 1994.

The seventh decision

The decision of the DPP to conduct the proceedings arising out of the laying of the Information dated 22 February 1994

The eighth decision

The decision of all respondents to engage in, and to continue to engage in, decisions relating to the conduct of the prosecution in regard to both Informations.

The ninth decision

The decision of all respondents to utilise the services of Ralph Murray Holmes, the first respondent, in his capacity as a State Police Officer.

The tenth decision

The decision of all respondents to seek the extradition of Mr Johnson from the United Kingdom to Australia.

The eleventh decision

The decision of all respondents to engage in, and to continue to engage in, conduct for the purpose of the extradition process.

If the matter is to proceed for determination upon its merits, it would seem that some complex questions of law are likely to arise. For example, it is alleged that the NCA was not entitled to investigate the alleged Code and State offences in the manner in which it conducted its investigations. It will also be argued that, in any event, Mr Holmes, the first respondent, was not entitled to engage in certain decision making processes. The extent of the intended challenge may be gauged by the proposition in the amended application that the DPP "was not lawfully entitled to conduct the proceedings arising out of the decisions to charge the offences alleged ... " . There is also a challenge to the authorisation that the Commonwealth Attorney-General purported to grant to Mr Holmes on 15 February 1994 to lay charges under subs 229(4) of the Code against Mr Johnson. As to these charges, it is alleged that they were an invalid exercise of power because:

"(i)

the Authorisation does not specify in which capacity the first respondent was to institute the proceedings;

(ii)

the first respondent was not entitled, either by reason of the failure to enter into or gazette an Arrangement pursuant to Section 92 of the Corporations (South Australia) Act 1990 or, alternatively, the provisions of the National Crime Authority Act to institute the proceedings."

The respondents have claimed that the application by Mr Johnson was not made to this Court within a reasonable time. They have submitted, by notice of motion filed on 16 September 1997, that this Court should "refuse to entertain" the application.

It being common ground that there are no statutory or other provisions identifying the time within which an applicant may seek review of decisions such as those that are the subject of the amended application in this matter, the provisions of subs 11(4) of the Judicial Review Act apply to the respondents' notice of motion. That subsection provides, so far as is relevant, as follows:

"(4)

Where:

(a)

no period is prescribed for the making of applications for orders of review in relation to a particular decision; or

(b)

...

the Court may:

(c)

in a case to which paragraph (a) applies - refuse to entertain an application for an order of review in relation to the decision referred to in that paragraph; or

(d)

...

if the Court is of the opinion that the application was not made within a reasonable time after the decision was made."

The provisions of subs 11(5) need also to be borne in mind. They provide, so far as is relevant as follows:

"(5)

In forming an opinion for the purposes of subsection (4), the Court shall have regard to:

(a)

the time when the applicant became aware of the making of the decision; and

(b)

...;

and may have regard to such other matters as it considers relevant."

Counsel for Mr Johnson, submitted that in assessing any issue of alleged delay in this matter, the Court should make its calculations as from 1 May 1997. That was the day upon which Mr Johnson first instructed legal advisers in Australia to act on his behalf in relation to the charges that are the subject of the extradition proceedings. Counsel's submission included the proposition that prior to 1 May, Mr Johnson had been represented by legal advisers in the United Kingdom and that they "were not aware of, and could not reasonably be expected to be aware of, the Australian law and procedure relating to these proceedings" .

I do not think that this proposition completely states the picture. It may be true that Mr Johnson's legal advisers in the United Kingdom may not have known all the intricacies of the Australian legislative provisions relevant to these proceedings, including the somewhat unique cooperative scheme between the Commonwealth and the States involving the NCA, but there is evidence clearly pointing to the fact that Mr Johnson's counsel in the United Kingdom was alive to his client's rights to challenge in Australia the authorities' attempts to have him extradited.

Stephen John Vorreiter was, at the time of the hearing of the extradition proceedings in the United Kingdom, a solicitor in the employ of the DPP and the person charged with the carriage of the prosecution against Messrs Johnson, Fuller and Cummings. In his affidavit of 16 September 1997 which was read on this application, Mr Vorreiter deposed that he was present during the hearing of the proceedings in the Bow Street Magistrates Court. He deposed that Mr Johnson's counsel, Mr Robert Marshall-Andrews QC referred to a "proposed challenge to the validity of the arrest warrants in Australia which were the foundation for the request for extradition" .

Mr Vorreiter attached to his affidavit an extract from Counsel's written submissions. So far as they are relevant to this application, the submissions were as follows:

"The extradition proceedings are purport to be based upon warrants issued in Australia and exhibited to the Affidavit of Mr Ross Christoforou dated the 15th November 1994. The warrants were issued pursuant to certain information laid in the South Australia Magistrates' Court which are also exhibited to that Affidavit. The Defendant puts the Prosecution to strict proof as to the propriety of the warrants and the information upon which they are based. In particular whether the Informations were properly laid in accordance with the Constitution and properties governing Australian law."

The date upon which counsel's submissions were handed to the Court and distributed to opposing counsel is not identified - but it would have been some time towards the end of the hearing in the Bow Street Magistrates Court which finished on 21 June 1996.

No explanation was forthcoming to explain:

•

why Mr Johnson took no action to instruct Australian legal advisers when he was arrested in December 1994.

•

why Mr Johnson took no action to instruct Australian legal advisers at or about the time of the hearing of the extradition proceedings in June 1996 when his senior counsel was clearly alert to the fact that such proceedings could be instituted.

•

what, if any, significance attaches to the date, 1 May 1997, that being the date upon which Mr Johnson first instructed Australian solicitors. Why was it that date and not before?

•

why there was a further delay from 1 May to 7 July 1997 before proceedings were issued out of this Court. (As to that point, I should mention that Mr Johnson's solicitor of choice was absent from his office until 20 June but surely one of his partners with the aid of counsel could have proceeded with greater expedition).

Section 11 of the Judicial Review Act does not set out any criteria by reference to which the Court's discretion to refuse to entertain an application for an order of review is to be exercised; nor does it set out any criteria by which the Court may determine what is a reasonable time within which an application should be made. The Court's discretion is unfettered but it must be exercised judicially having regard to the relevant facts: see Duff v Freijah (1982) 62 FLR 280 at 285 per Northrop J. On the subject of delay, his Honour said in that case that he was "not satisfied that the applicants have explained in any satisfactory manner the delay in lodging the applications" . Not long after the decision in Duff v Freijah, Wilcox J in Hunter Valley Developments Pty Ltd v Kohen (1984) 3 FCR 344 set out at 348-350 a series of principles which his Honour considered would be of value "to guide, not in any exhaustive manner, the exercise of the court's discretion" (at 348). His Honour said:

"1.

Although the section does not, in terms, place any onus of proof upon an applicant for extension an application has to be made. Special circumstances need not be shown but the court will not grant the application unless positively satisfied that it is proper so to do. The "prescribed period" of twenty-eight days is not to be ignored ( Ralkon Agricultural Co Pty Ltd v Aboriginal Development Commission (1982) 43 A.L.R. 535 at 550). Indeed, it is the prima facie rule that proceedings commenced outside that period will not be entertained ( Lucic v Nolan (1982) 45 A.L.R. 411 at 416). It is a pre-condition to the exercise of discretion in his favour that the applicant for extension show an "acceptable explanation of the delay" and that is "fair and equitable in the circumstances" to extend time ( Duff at 485; Chapman v Reilly unreported (Federal Court of Australia, Neaves J., 9 December 1983) at 7).

2.

Action taken by the applicant, other than by making an application for review under the Act, is relevant to the consideration of the question whether an acceptable explanation for the delay has been furnished. A distinction is to be made between the case of a person who, by non-curial means, has continued to make the decision-maker aware that he contests the finality of the decision (who has not "rested on his rights" : per Fisher J. in Doyle v Chief of Staff (1982) 42 A.L.R. 283 at 287) and a case where the decision-maker was allowed to believe that the matter was finally concluded. Compare Doyle, Chapman, Ralkon and Douglas v Allen (1984) 1 F.C.R. 287 with Lucic at 414-415 and Hickey v Australian Telecommunications Commission (1983) 48 A.L.R. 517 at 519. The reasons for this distinction are not only the "need for finality in disputes" (see Lucic at 410) but also the "fading from memory" problem referred to in Wedesweiller v Cole (1983) 47 A.L.R. 528.

3.

Any prejudice to the respondent including any prejudice in defending the proceedings occasioned by the delay is a material factor militating against the grant of an extension: see Doyle at 287, Duff at 484-485, Hickey at 525-527 and Wedesweiller at 533-534.

4.

However, the mere absence of prejudice is not enough to justify the grant of an extension: Douglas, Lucic at 416, Hickey at 523. In this context, public considerations often intrude ( Lucic, Hickey ). A delay which may result, if the application is successful, in the unsettling of other people (Ralkon at 550, Becerra at 12-13) or of established practices (Douglas) is likely to prove fatal to the application.

5.

The merits of the substantial application are properly to be taken into account in considering whether an extension of time should be granted: Lucic at 417, Chapman at 6.

6.

Considerations of fairness as between the applicants and other persons otherwise in a like position are relevant to the manner of exercise of the court's discretion: Wedesweiller at 534-535.

In considering the authorities it is, I believe, important to bear in mind the point made by Sheppard J. in Wedesweiller at 531, relating to the diversity of decisions to which review may be sought under the Act:

"... there will be some cases which may be decided upon considerations which affect only the immediate parties. It will be appropriate to consider whether the delay which has taken place has been satisfactorily explained, the prejudice which may be caused to an applicant by the refusal of an application, the prejudice which may be suffered by the Government or a particular department if the application is granted and, generally, what the justice of the case requires. In other cases wider considerations will be involved."

He went on to mention the reference to public interest made by Fitzgerald J. in Lucic at 416.

It is in relation to the former category of cases, that is, those "which affect only the immediate parties" that the approach adopted by Bray C.J. in Lovatt v Le Gall (1975) 10 S.A.S.R. 479 at 485 in respect of private litigation but adopted in this context in both Doyle at 287 and Duff at 485, is apposite namely:

"If the defendant has suffered no prejudice, as when he was well within the limitation period of the plaintiff's claim, or where the excess period of time is small, or where he cannot show that he has lost anything by reason of the delay, it may well be that the court will not find it difficult to come to the conclusion that it is fair and equitable in the circumstances to grant extension."

By contrast, in cases involving public administration, especially day to day matters such as personnel management, the public interest may well dictate refusal of an extension even after only a short delay." (at 348-350)

Although the remarks of Wilcox J were directed towards the circumstances of an applicant who was seeking an extension of time, I respectfully consider that they have equal force and effect when considering whether or not an application has been made within a reasonable time after the making of the relevant decision where no time constraints are imposed.

Newby v Moodie (1988) 83 ALR 523 , a decision of a Full Court of this Court, was a case that dealt with the provisions of subs 11(4) of the Judicial Review Act. The facts in that case are relevant for the purposes of considering the present application. In March 1987 the appellant was served with summonses returnable before the Local Court at Sydney on 13 April 1987. It was alleged that the appellant had committed offences against the Crimes (Taxation Offences) Act 1980 (Cth). On the first return date counsel foreshadowed an application to stay the proceedings on the ground that they were an abuse of process; that application was set down for hearing on 1 December 1987. However, on that day, the application was not pursued but instead, three days later on 4 December 1987 an application was filed in the Federal Court under the Judicial Review Act seeking an order of review of the decision to prosecute. The trial judge dismissed the application for judicial review and on appeal it was held that the period of more than eight months between the time that the appellant became aware of the decision to prosecute and the filing of the application for review in the Federal Court was not a reasonable time within which to bring the application. In a joint judgment, the Court said at 526:

"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 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, s 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."

In coming to its decision the Full Court placed emphasis upon the following facts (at 529). First, they described the delay as "very considerable" . Secondly, they viewed the conduct of the appellant as amounting to a "considered decision to pursue in the Local Court his claim that the proceedings were an abuse of process" . Thirdly, they considered it relevant to note that the appellant would not have suffered any prejudice had the Federal Court refused to entertain his application because the Local Court stood ready to hear it. Finally, the Full Court was of the opinion that the Local Court or the Court in which the appellant would be tried (should he be committed for trial) was "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" . I consider that each of these four factors has a measure of application to these present proceedings. First, the delay in this case is even greater than that in Newby v Moodie . Even if one calculates it only from the time of the hearing of the extradition proceedings, a period in excess of twelve months elapsed before proceedings were instituted in this Court and no explanation has been forthcoming for that delay. Secondly, as is apparent from the recitation of the relevant facts, Mr Johnson has exercised his rights to challenge the extradition process in the United Kingdom. He is not to be criticised for having done so, nor is he to be the subject of any adverse comment. Nevertheless, it was his election; he could have chosen to return to Australia to take up his fight in Australia but now, so it would seem, having found that his fight in the United Kingdom was unsuccessful, he wishes to take up the battle in this country. The third and fourth points may be considered together. It would seem to me that the many items of complaint that have been listed in the amended application for review show nothing that raises an issue that is peculiarly within the jurisdiction of this Court. If Mr Johnson is returned to Australia and if he is committed for trial in the Supreme Court or the District Court either of those Courts would, in my opinion, have the ability to entertain the various complaints that are in the amended application. I do not see that any hardship would be inflicted upon Mr Johnson and I consider those courts would be the more appropriate forum within which to challenge the rights of the prosecution to bring these charges.

The respondents further argued that prejudice will result if Mr Johnson is permitted to pursue his application for an order of review. They referred, in broad terms, to the questions of substantial costs and the public interest in the administration of the justice system. I am not satisfied that prejudice has been made out in any meaningful way. I say that principally for the reason that Mr Johnson is entitled to agitate the matters that are identified in his amended application and if he is not permitted to do so in this Court he will be entitled to raise them in the Supreme Court or the District Court (as the case may be) in the event of him being committed for trial. But it does not follow that the absence of prejudice to the respondents means that the delay in the institution of the proceedings should be overlooked: c.f. Lucic v Nolan (1982-1983) 45 ALR 411 at 416 per Fitzgerald J.

For the reasons that I have endeavoured to set out, I have therefore come to the conclusion that the application of Malcolm Keith Johnson for an order of review should be summarily dismissed. I was informed by counsel for the respondents that in the event of their application being successful they would not seek costs. Accordingly there will be no order for costs.