Woss v. Jacobsen

60 ALR 313

---

(Judgment by: Toohey J)

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

Court:

Judges:
Toohey JDavies J
Spender J

Subject References:
Administrative Law

Judgment date: 5 June 1985

---

Judgment by:
Toohey J

The appellant appeals from a judgment of a single Judge of this Court delivered on 30 October 1984 , 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 at Perth.

The application to this Court was made under the provisions of the Administrative Decisions (Judicial Review) Act 1977. The decision sought to be reviewed was one whereby the second respondent ordered the return of the appellant to Queensland pursuant to s.18 of the Service and Execution of Process Act 1901. The questions before the primary Judge were whether the second respondent had jurisdiction to make the order he did (Judicial Review Act para. 5(1)(c)) and whether the making of the decision was an improper exercise of power, in particular whether the magistrate failed to take into account a number of relevant considerations (Judicial Review Act paras 5(1)(e) and 5(2)(b)).

The background to the proceedings in the Court of Petty Sessions may be stated quite shortly. On 28 February 1984 Clive Evans, a stipendiary magistrate and justice of the peace in Queensland, issued seven warrants for the apprehension of the appellant, in each case in relation to the charge of an offence against para. 86(1)(e) of the Crimes Act 1914. That paragraph makes it an indictable offence to conspire with another to defraud the Commonwealth or a public authority under the Commonwealth. Each warrant was issued under the provisions of s.57 of the Justices Act 1886-1979 (Qld.) and each was thereafter endorsed under the provisions of the Service and Execution of Process Act for execution in Western Australia and to bring the appellant before a justice of the peace in that State. The appellant was brought before the second respondent who discharged the appellant from custody in respect of five of the warrants. He did so on the ground that it would be unjust or oppresive to return the appellant to Queensland - sub-paras 18(6)(c) and (d) of the Service and Execution of Process Act. In respect of the remaining two warrants, he ordered the return of the appellant to Queensland. The appellant lives in Western Australia; he did not suggest that the use of the word "returned" in sub-s.18(b) required his presence in Queensland at the time the offence was committed.

The attack on the jurisdiction of the second respondent to execute the two warrants against the appellant was made because of the language of sub-s.18(1) of the Service and Execution of Process Act. Before a warrant may be endorsed for execution outside the State in which it was issued, the warrant must have been issued "in accordance with section 16 or the law of a State or part of the Commonwealth". Section 16 is concerned with subpoenas and witness summonses and is of no relevance in the present case. The submission of the first respondent, the arresting police officer, was that the warrants had been issued in accordance with the law of a State viz. the Justices Act 1886 of Queensland. The appellant challenged this submission.

His Honour dismissed the application. He did so in reliance upon para. 10(2)(b) of the Judicial Review Act which empowers the Court, in its discretion, to refuse to grant an application for the reason:

" . . .

(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".

In his Honour's view, s.19 of the Service and Execution of Process Act made adequate provision by which the appellant was entitled to seek a review by the Supreme Court of Western Australia of the decision of which he complained. In arriving at that conclusion it was necessary for his Honour to determine that the jurisdiction of the Supreme Court to review the magistrate's decision was not ousted by s.9 of the Judicial Review Act. He so held, for reasons which it will be necessary to examine. Before considering the exercise of his discretion, the primary Judge dealt with the question of the jurisdiction of the second respondent to act pursuant to s.18 of the Service and Execution of Process Act. His Honour upheld that jurisdiction. Because he thereafter declined to deal with the application, in reliance upon sub-s.10(2) of the Judicial Review Act, his Honour found it unnecessary to determine whether there had been an improper exercise of power by the second respondent.

The appellants' grounds of appeal were amended when the hearing of the appeal began and again before it had concluded. The first respondent did not formally oppose the granting of leave to amend the grounds of appeal but reserved the right to argue that it was not open to the appellant to raise the matters added by the amendments. For this reason it is useful to set out the grounds of appeal in full. The amendments are underlined.

"(a)

that His Honour erred in law in finding that the provisions of Section 18 of the Service and Execution of Process Act 1901 have application in relation to a warrant of apprehension alleging the commission of an offence against Section 86(1)(e) of the Crimes Act 1914 said to have been committed in more than one State:

(b)

that the Second Respondent had no jurisdiction to proceed under Section 18 of the Service and Execution of Process Act because the relevant warrants were not issued in accordance with the law of Queensland, in particular Section 57 of the Justices Act of that State;

(c)

that His Honour erred in law in declining to exercise the jurisdiction of this Honourable Court under Section 5 of the Administrative Decisions (Judicial Review) Act 1977 having done so upon the erroneous basis that the Supreme Court of Western Australia has jurisdiction to review the decision of the Second Respondent.

(d)

His Honour having correctly entertained the question whether the Magistrate's order was beyond jurisdiction, erred in declining to deal with the other ground of review, namely whether the Magistrate's decision was an improper exercise of his powers".

Although the basis of the primary Judge's decision to dismiss the application was the exercise of his discretion under sub-s.10(2) of the Judicial Review Act, the question of jurisdiction was argued and decided by him and it was argued before this Court. In the circumstances it seems appropriate to deal with that question first and then to consider his Honour's exercise of discretion. Although it would have been possible for his Honour to proceed immediately to a consideration of ss.9 and 10 of the Judicial Review Act, he did not do so. In consequence there is a determination of jurisdiction adverse to the appellant which, in my view, he is entitled to air before this Court.

The Service and Execution of Process Act was passed in exercise of the power conferred on the federal parliament by s.51(xxiv) of the Constitution - "The service and execution throughout the Commonwealth of the civil and criminal process and the judgments of the courts of the States". Quick and Garran: Commentaries on the Constitution 614 comment:

"The object of this sub-section is to provide a uniform law for the service of civil and criminal process, for the execution of civil and criminal process, and for the execution of the judgments of the courts of the States, throughout the Commonwealth".

Again at p.617 the authors say:

"Process includes the doing of something in a criminal court or proceeding, as well as in a civil court or proceeding. A summons from a judicial officer to appear and answer a criminal charge is a process. A warrant issued by a judicial officer, directing the arrest of a person on a criminal charge, is a process.

The power conferred by this part of the sub-section will enable the Federal Parliament to deal with a class of cases which, it has been held, is not within the competence of the Colonial legislatures to regulate; viz, the transfer of persons charged with crime from one colony to another. This disability is founded on the territorial limitations to which the Colonial legislatures are restricted."

The Service and Execution of Process Act was No. 11 of 1901 and was assented to on 16 October 1901 . Conformably with s.51(xxiv) of the Constitution it was expressed to be:

"An Act to provide for the Service and Execution throughout the Commonwealth of the Civil and Criminal Process and the Judgments of the Courts of the States and of other parts of the Commonwealth, and for other purposes connected therewith".

The Act was one of the first passed by the new federal parliament and preceded the Judiciary Act by some two years. The latter was Act No. 6 of 1903 and was assented to on 25 August 1903. On 17 December 1901 the Punishment of Offences Act 1901 (which was No. 14 of 1901) was assented to. It was expressed to cease to have effect on the establishment of the High Court but meanwhile it provided that the laws of each State respecting the arrest and custody of offenders and the procedure for their summary conviction or commitment for trial applied to persons charged with offences against the laws of the Commonwealth committed within that State or whose trial for offences committed elsewhere "may lawfully be held therein". The same Act conferred upon the courts and magistrates of each State, exercising jurisdiction with respect to summary conviction or commitment for trial or trial upon indictment, the like jurisdiction with respect to persons charged with offences against the laws of the Commonwealth committed within that State or "who may lawfully be tried within that State for offences committed elsewhere".

When the Service and Execution of Process Act and the Punishment of Offences Act were passed there was already in existence legislation creating Commonwealth offences. To take two examples, the Customs Act 1901 which was No. 6 of that year and the Excise Act 1901 which was No. 9 of that year each created offences which were capable of prosecution in a court of summary jurisdiction as well as in the other courts mentioned.

The Fugitive Offenders Act 1881 (44 and 45 Vic. c.69), an Imperial statute, provided that a person accused of having committed an offence in one part of the empire might, if found in another part, be apprehended and returned to the part from which he was a fugitive. The procedure envisaged the issue of a warrant in one part of Her Majesty's dominions for the apprehension of a fugitive from that part, in which event any of the authorities mentioned in s.3 "if satisfied that the warrant was issued by some person having lawful authority to issue the same" might endorse the warrant in the manner provided by the Act and "the warrant so endorsed shall be a sufficient authority to apprehend the fugitive in the part of Her Majesty's dominions in which it is endorsed, and bring him before a magistrate". Discussing s.51(xxiv), Quick and Garran say at p.619:

"The sub-section now under review will facilitate Federal legislation to enforce the service and execution throughout the Commonwealth of the criminal process issued by the courts of a State for the arrest of offenders within any State. It will enable the Parliament to formulate a simple procedure for effecting what can now only be done under the authority of the Imperial Fugitive Offenders Act, and to authorize the execution of magistrates' warrants for the apprehension of offenders in every part of the Commonwealth. This power is clearly restricted to inter-state extradition, or its equivalent. Inter-British and inter-national extradition will still be governed by imperial legislation although auxiliary laws may be passed by the Federal Parliament under s.51 - xix., 'External Affairs', facilitating the enforcement of the Imperial legislation".

It is apparent from this brief recital of legislative and constitutional history that the Service and Execution of Process Act was enacted to facilitate the service of process between the States and that it was not concerned with the enforcement of Commonwealth laws. With the passing of the Punishment of Offences Act and later the Judiciary Act, provision was made for the service and execution of process in relation to offences against Commonwealth laws.

As originally enacted, s.18 of the Service and Execution of Process Act was formulated by references to the issus of a warrant by a court, judge or justice "having jurisdiction in any State or part of a State or part of the Commonwealth". The language chosen was comparable to that of "lawful authority to issue" used in the Fugitive Offenders Act. The Service and Execution of Process Act, including s.18, underwent a number of changes over the years but it was Act No. 48 of 1953 that repealed Part III - Execution of Warrants and Writs of Attachment - and substituted a new part in its stead. Section 18 thereby assumed its present form which refers to the issue of a warrant "in accordance with section 16 or the law of a State or part of the Commonwealth".

In the appellant's submission, s.18 requires that a warrant derive its binding force solely from a State law. And, it was said, the warrants in question did not satisfy that criterion. They owed any force they had to sub-s.68(1) of the Judiciary Act because that sub-section picks up the provisions of a State law applicable in its terms only to offences against State law and applies those provisions as Commonwealth law to offences against Commonwealth law. The submission was that sub-s.68(1) incorporates as part of the body of Commonwealth statute law the provisions of State laws on the designated subject matters. Therefore, the argument ran, the warrants were issued in accordance with a law of the Commonwealth, not in accordance with the law of a State. That submission was said to be supported by a line of authority, in particular the dicta of Mason J. in R. v. Loewenthal; Ex parte Blacklock (1974) 131 CLR 338 at 346. There the High Court was concerned with the operation of the Crimes Act 1914 in relation to Commonwealth places in Queensland by reason of the Commonwealth Places (Application of Laws) Act 1970. His Honour said:

"If, as we are informed, the offence was committed in a Commonwealth place, s.4(1) (of the Commonwealth Places Act) would operate to pick up the provisions of s.469 (of the Criminal Code of Queensland) and give them an application as Commonwealth law in that place, subject to the operation of s.4(2)(a)".

The appellant argued that an analogy may be found in sub-s.68(2) of the Judiciary Act which gives to the several courts of a State exercising jurisdiction with respect to the summary conviction, or the examination and commitment for trial on indictment, or the trial and conviction on indictment of offenders or persons charged with offences against the laws of the State - "the like jurisdiction with respect to persons who are charged with offences against the laws of the Commonwealth". In its original form sub-s.68(2) continued with the words "committed within the State, or who may lawfully be tried within the State for offences committed elsewhere". The operation of sub-s.68(2) was considered by the Full Court of the Federal Court in Lamb v. Moss (1983) 49 ALR 533 at p.560 where the relevant authorities are noted. The Court there spoke of the sub-section extending the operation of the state enactment and applying it in relation to the offences mentioned.

The primary Judge found unhelpful the various authorities referred to by counsel for the appellant. In his view, the question was not what occurs when a provision such as s.68 of the Judiciary Act operates on or picks up state law or whether the provisions of the Justices Act may operate as a federal law. He said:

"The Justices Act is a State law and, as a matter of language, is properly referred to as such notwithstanding its application to the circumstances of this case by virtue of the operation of the Judiciary Act. In my opinion there is no reason not to give the words used in sub-sec.18(1) their ordinary meaning".

In the appellant's submission, to put the matter this way was to beg the question posed by the relevant words of sub-s.18(1) of the Service and Execution of Process Act viz. to what law, federal or state, did the warrants owe their force? In my view, the appellant's argument on this point cannot succeed. The words "the law of a State" in sub-s.18(1) are directed to the source of power of the justice of the peace or other officer to issue a warrant. It may well be that the effect of s.68 of the Judiciary Act is to pick up a Starte law and make it a law of the Commonwealth for certain purposes. But it does not follow that the law ceases to be a law of the State for all purposes. The relevant question is whether the warrants, the subject of this appeal, were issued in accordance with a law which was a law of the State of Queensland. In my view they were, the relevant law being the Justices Act of that State. The Justices Act is given a certain extra territorial operation by reason of s.18 of the Service and Execution of Process Act but it remains a law of the State for the purposes of s.18.

This is enough to dispose of ground (b) of the notice of appeal. The words "said to have been committed in more than one State" in ground (a) were added by leave, with the first respondent reserving his right to argue that it was not open to the appellant to raise this ground. In my opinion the respondent's submission should be upheld. Each warrant referred to a complaint made that the appellant, between certain dates "at Southport and other places within and outside the State of Queensland", conspired with others. In the appellant's submission, the provisions of s.18 of the Service and Execution of Process Act have no operation in relation to a warrant of apprehension that alleges the commission of an offence said to have been committed in more than one State. This matter was not raised before the primary Judge and the application to review the decision of the second respondent made no reference to the matter. In Legione v. Hateley (1983) 57 ALJR 292 Mason and Deane JJ. said at 309:

"The normal rule is that a party will not be permitted to argue a point, neither raised on the pleadings, nor fought at the trial, when further evidence might possibly affect the result".

I do not accept the appellant's argument that ground (a) as amended involves no question of fact. Had the matter been raised before the second respondent, it would have been open to the first respondent (if thought necessary) to offer oral or documentary evidence in support of the averment or it may have been sufficient for counsel for the first respondent to have made a statement from the bar table concerning the circumstances of the offences with which the appellant had been charged. It may have been enough, for example, for the first respondent's counsel to have explained the Crown case as involving overt acts done within as well as without the State of Queensland. Although a conspiracy is complete as a crime when an agreement is made, it continues in existence so long as there are two or more parties intending to carry out its design. The court of a State has jurisdiction to try such an offence if the evidence shows that the conspiracy, whenever or wherever formed, was still in existence when the accused were in the State in which the court has jurisdiction. Director of Public Prosecutions v. Doot [1973] AC 807 . Although the essence of conspiracy is the unlawful agreement made by the conspirators, conspiracy as a crime is committed wherever and whenever it is shown that the agreement exists between the conspirators. It is a crime of duration, a continuing offence. R. v G, F, S and W (1974) 1 NSWLR 31 .

I do not accept that the functions of the second respondent extended to a determination of the validity of the warrants before him though he might have (and did in the case of five of the warrants) discharged the appellant in exercise of his powers under sub-s.18(5). In this regard I refer to the judgment of Cussen J. in O'Donnell v. Heslop (1910) VLR 162 at 175-176. But even if they did so extend, the validity of the warrants was not challenged before him. Had it been challenged, questions of fact may well have arisen even if they went no further than assertions by counsel for the first respondent as to the matters alleged against the appellant.

Although the appellant was permitted to amend ground (a), this was only a convenient course to permit his counsel to present the case for entertaining the reformulation as a ground of appeal. For the reasons given, I am of the opinion that the court should not entertain this ground.

Ground 3 attacks the primary Judge's decision to decline to exercise jurisdiction under the Judicial Review Act. In his Honour's view the case "falls squarely within the provisions of sub-para. 10(2)(b)(ii) of the Judicial Review Act . . . ". He considered that s.19 of the Service and Execution of Process Act made adequate provision by which the appellant might seek a review by the Supreme Court of Western Australia of the decision of the second respondent. His Honour commented "The review is a complete one. It is not restricted in the way that review by this court under the Judicial Review Act is restricted". He had regard to the fact that there were applications in the Supreme Court by the Crown regarding the five warrants in respect of which the appellant had been discharged from custody. His Honour thought that the "sensible course (was) for each of the matters to be reviewed by the one court, in this case the Supreme Court of Western Australia".

It can be seen that there were two steps by which the primary Judge reached the conclusion that it was inappropriate for him to deal with the application. The first was to hold that s.9 of the Judicial Review Act did not operate to deprive the Supreme Court of jurisdiction under s.19 of the Service and Execution of Process Act. The second was to say that as a matter of discretion it was better to leave review to the Supreme Court.

The appellant's challenge to the first of these two steps involved a consideration of s.9 of the Judicial Review Act. That section excludes from a court of a State jurisdiction to review a decision to which the section applies. Sub-section 9(2) defines "decision to which this section applies" to mean a decision to which the Act applies or a decision of an administrative character included in any of the classes of decisions set out in schedule 1, other than two particular paragraphs. "Review" is defined to mean "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 character or having a similar effect, to any such writ;

(c)

or the making of a declaratory order".

The second respondent's decision did not fall within Schedule 1. But it was not in issue that the decision was one to which the Act applied. It was a decision of an administrative character made under an enactment; hence it fell within the expression "decision to which this Act applies" as defined in sub-s.3(1) of the Judicial Review Act.

His Honour took the view that the review which sub-s.9(2) was intended to encompass was the review which the Federal Court was empowered to take under ss. 5, 6 and 7 of the Judicial Review Act. But, he said, the review which the Supreme Court was empowered to undertake under s.19 of the Service and Execution of Process Act was a review by way of rehearing, with power to take evidence in addition to, or in substitution for, the evidence given on the making of the order. This, he said, was not a review of the restricted kind contemplated by s.9 but a review of the more comprehensive kind contemplated by sub-s.10(3).

In the appellant's submission, the review provided by s.19 of the Service and Execution of Process Act was a review that could lead to a confirmation, variation or quashing of the order made. Sub-section 19(5) is in these terms:

"(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".

An order under sub-s.19(5) quashing an extradition order, it was said, would have the same effect as certiorari to quash, for the effect of certiorari is to render the relevant decision or order of no effect. The appellant contended that it was not to the point that the grounds upon which certiorari may be granted may be less extensive than those upon which relief by way of quashing an extradition order may be sought under s.19. In the appellant's submission: "The relevant test for the application of Section 9 so as to deprive a State Court of jurisdiction is the identity or similarity in terms of effect of a quashing order under Section 19 and any writ embraced within the description 'prerogative or statutory writ'".

In the respondent's submission, the review contemplated by s.9 is the process of examining the correctness or otherwise of the decision below; it does not include the Court deciding the matter in issue for itself. In this respect the respondent relied upon the decision of Waddell J. in Appliance Holdings Pty. Ltd. v. Lawson (1983) 1 NSWLR 246. By contrast the jurisdiction vested in the Supreme Court by s.19 is to hear the matter de novo and to decide the matter in issue for itself. Basser v. Medical Board of Victoria (1981) VR 953. Hence, it was said, the jurisdiction conferred upon the Supreme Court was not ousted by s.9.

As to the meaning of "review", I repeat some comments I made in Bannister v See (1982) 42 ALR 78 at 81 in regard to s.31 of the Repatriation Act 1920.

"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. It may have the more limited meaning of reconsideration in the light of changed circumstances, as with workers' compensation payments. In such a case, if there has been no change of circumstances there cannot be a review (Crossfield & Sons Ltd v. Tanian [1900] 2 QB 629 ), though the changed circumstances may be used to demonstrate that the original decision was wrong (Sharman v. Holliday & Greenwood Ltd [1904] 1 KB 235 ; Radcliffe v. Pacific Steam Navigation Co [1910] 1 KB 685 )."

Nevertheless the Judicial Review Act has chosen in certain sections a particular definition of "review" for the purpose of those sections. In sub-s.9(2) the definition selects, for relevant purposes, proceedings by way of the grant of a prerogative or statutory writ or proceedings that may lead to the making of an order of the same or similar nature or having the same or similar effect. The comparision is with the nature or the effect of a review by way of the grant of a prerogative writ. It is not enough to say, as the appellant said, that because an order made by a judge under s.19 of the Service and Execution of Process Act may quash an order made by a magistrate and because an order of certiorari may quash an order of an inferior court or tribunal that each is of a similar nature or has a similar effect.

Section 19 of the Service and Execution of Process Act confers jurisdiction where a person apprehened is dissatisfied with an order made by a magistrate or justice of the peace for his return. By reasons of sub-s.19(3) the judge's review of that order is 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 the review. It is in the fullest sense a rehearing and the judge's power to confirm or vary the order or to quash the order and substitute a new order in its stead is couched in the widest terms though of course it must be exercised judicially. The order as confirmed, varied or substituted shall be executed according to its tenor as if it had been made by the magistrate or justice of the peace (sub-s.19(6)).

In those circumstances I am unable to accept that the review contemplated by s.19 of the Service and Execution of Process Act is a review by way of the making of an order of the same or similar nature as or of the same or similar effect to a prerogative or statutory writ.

This conclusion gains support from s.10 of the Judicial Review Act which, for the purposes of the discretion conferred on the Federal Court to refuse to grant an application under the Act where adequate provision is otherwise made for a review of a decision complained of, defines "review" in quite different terms. Sub-section 10(3) reads:

"(3)

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

It is apparent that the sort of review removed from a court of a State by s.9 is more limited than the sort of review that may lead to the Federal Court declining to exercise its jurisdiction under the Judicial Review Act.

Although there was an amendment to s.9 by Act No. 111 of 1980, it did not affect the point at issue. In the course of his second reading speech on the Administrative Decisions (Judicial Review) Bill 1977, the Attorney General commented:

"The Bill is intended to provide a comprehensive procedure for judicial review of Commonwealth administrative action taken under statutory powers. Clause 9 of the Bill is intended to ensure that this jurisdiction is exclusive of the jurisdiction of State courts. The Judiciary Act has long embodied the policy that actions of Commonwealth officers should not be subject to review by way of mandamus or writ of prohibition in State courts - section 38 of the Judiciary Act. The clause further makes it clear that actions of the Federal judiciary are not to be subject to review in State courts. The jurisdiction of State courts to grant habeas corpus is not to be affected. Parliament cannot legislate, of course, to remove the powers of judicial review given to the High Court by the Constitution - section 75(iii). It is expected, however, that the procedures provided for by this Bill make resort to the existing procedures for judicial review unnecessary except where a review is sought of decisions excluded from review under the present Bill or otherwise in special circumstances. Most of the prerogative writs are granted on the discretion of the court and one would imagine that the High Court, faced with an application for a prerogative writ under section 75(iii), would give careful consideration to the situation in which an application could have been made to the Federal Court under these provisions".

These comments do not, in my view, assist in reaching a decision on this particular ground of the appeal for they necessarily leave open what is meant by "judicial review of Commonwealth administrative action". I am of the opinion that ground (c) should not be upheld. In that event the jurisdiction of the Supreme Court under s.19 of the Service and Execution of Process Act was not ousted by s.9 of the Judicial Review Act.

In those circumstances the question raised by ground (d) of the notice of appeal arises. It is this. Having embarked on a consideration of the jurisdiction of the second respondent to make the orders for extradition of the appellant and having answered that question against the appellant, was it proper for his Honour then to decline to exercise his jurisdiction to review the second respondent's decision? In the appellant's submission, his Honour had dealt with the application for review in part and, having done so, ought to have dealt with it in its entirety. The second respondent's answer was that the appellant had invited the Court to deal with the question of jurisdiction and could not complain if the Court, having done so and determined that matter against the appellant, declined to proceed further with the application. But that answer overlooks the fact that, while the appellant did indeed ask the Court to deal with the question of jurisdiction, he did not ask the Court to do so in isolation. The question of jurisdiction was the first ground of application. The second ground was that the second respondent's decision was an improper exercise of power and that he failed to take into account a number of relevant considerations. The appellant asked the Court to deal with both grounds, not with one.

In my respectful opinion, if his Honour was considering the exercise of his discretion under s.10 of the Judicial Review Act, it would have been better to deal with that matter at the outset and, if the discretion were held to exist, to have exercised it as he thought appropriate. By dealing with the question of jurisdiction, his Honour determined a matter of substance in the application. Indeed if he had determined the point in favour of the appellant, the application under the Judicial Review Act should have been allowed. In other words it seems to me preferable to proceed immediately to the application of s.10 when the operation of that section is raised, rather than to determine a substantive issue and then consider the question of discretion. The question is whether, his Honour having taken the course that he did, this Court should interfere, at least to the point of remitting the application to a judge of the Federal Court to deal with the matters raised in ground 2 thereof. Paragraph 10(2)(b) of the Judicial Review Act empowers the Court, in its discretion, to "refuse to grant an application" for the reasons there stated. Nothing in the Act precludes the Court from hearing the application nor, I think, from determining some relevant issue before exercising the discretion conferred by the Act. The discretion being available to the primary judge, it was not shown that his exercise of it miscarried in any way.

The appellant has failed to make good any of the grounds of his appeal and the appeal should be dismissed with costs.