Appellant v Respondent

2 Mr Murdaca has on 18 April 2008 filed charges of perjury against three persons, alleging that each of them gave false evidence in the course of the County Court trial. The persons charged are Mr Belleville (four charges - Magistrates' Court no. X01090898) Barry John Martin (four charges - Magistrates' Court no. X01108852) and Phillip Oswald (five charges - Magistrates' Court no. X01108342).

3 Mr Murdaca is not a member of the police force or a public official; the prosecution is a private prosecution. For the purposes of the Magistrates' Court Act 1989 he is the informant[1] and I shall refer to him as such.

4 On 8 August 2008 the magistrate refused an application or applications brought by the informant pursuant to s 56A of the Magistrates' Court Act for orders requiring a number of persons to be examined by the informant in the course of the committal.

5 The informant filed a brief of evidence on 5 September 2008 and the date of the committal mention was fixed for 16 September 2008.

6 On 10 September 2008 the informant again applied pursuant to s 56A for orders requiring 10 persons to attend before the court to be examined by or on behalf of the informant. It seems that the proposed examinees were the same persons as those the subject of the earlier application. Given that there were three defendants the subject of the pending committal proceedings, a total of 30 applications pursuant to s 56A were filed.

7 On 14 October 2008 the magistrate refused each of these applications. By originating motions filed on 28 October 2008 the informant seeks, pursuant to O56, relief in the nature of certiorari and in the nature of mandamus to quash her Honour's determinations and to require her Honour to exercise her jurisdiction. The Magistrates' Court, as is usual has not taken part in this proceeding, indicating by letter that it does not propose to do so and that it will abide the order of the Court.

8 When the matter came on before me in the Practice Court on 1 December, I was told by counsel for the defendants that there was binding authority to the effect that certiorari will not lie to quash a decision of a magistrate in a committal process that goes to the ultimate decision whether to commit a person for trial. They referred to the Court of Appeal decision in Potter v Tural.[2]

9 I note in passing that the defendants the subject of the committal proceeding have no right to be heard upon an application under s 56A.[3] It is likely that they have no right to be heard upon a review of a decision made in such an application. Nevertheless, I have received their written submission on the preliminary question without granting them leave to appear generally.

10 Accordingly, with the agreement of the parties, I ordered that the validity of this threshold jurisdictional point be determined as a preliminary question in the application pursuant to Rule 47.04. Further, having regard to the nature of the point and with the agreement of the parties, I agreed to determine the preliminary question on the written submissions and affidavits filed on behalf of the parties, without oral argument.

11 The short contention of counsel for the respondent was that Potter v Tural stands for the proposition that certiorari will not lie in the present case.

12 I have carefully read the judgments in that case. It is clear that the principle of the case is as counsel for the respondent contended. The case has been accepted as correct by Maxwell P sitting in the Practice Court in Rich v Magistrates' Court of Victoria.[4] Since the ultimate decision of a magistrate to commit or not to commit is in this state not amenable to certiorari,[5] the decisions of the magistrate made in the course of arriving at this ultimate decision are likewise not amenable.[6]

13 I have examined, too, the arguments and cases relied upon by counsel for the informant. Many of them concern the decision of a magistrate not made in the course of or in the furtherance of the committal process, and others are from jurisdictions other than Victoria where a different view has been taken of the right to review a decision to commit or not.

14 It follows from this that I must decline jurisdiction to entertain the application for relief in the nature of certiorari.

15 The question with respect to mandamus stands in a rather different light. A committing magistrate is amenable to mandamus where she has, actually or constructively, refused to exercise jurisdiction[7] but it must be shown that the magistrate refused to exercise jurisdiction or that in the purported exercise of jurisdiction she has "not applied [herself] to the question which the law prescribes, or that in purporting to decide it [she] has in truth been actuated by extraneous considerations, or that in some other respect [she] has so proceeded that [her] determination is nugatory and void."[8]

16 For the purposes of the preliminary question I am to consider the jurisdictional point only. In order to reach a conclusion on the application for relief in the nature of mandamus, for which I accept that jurisdiction exists, it will be necessary for me to explore with the assistance of counsel to some extent the detail and perhaps the merits of the application brought in this court. This is outside the preliminary question.

17 I therefore formulate the preliminary question and answer it as follows:

Question: Is relief in the nature of certiorari available to quash the decision of a magistrate to refuse the informant's applications under s 56A of the Magistrates' Court Act to examine witnesses for the purpose of the committal proceeding?

18 I will hear counsel further as to the precise orders that should be made to give effect to this conclusion and as to the future conduct of the application.

I certify that this and the 3 preceding pages are a true copy of the reasons for Judgment of Byrne J of the Supreme Court of Victoria delivered on 18 December 2008.

[1] Section 3(1).

[2] [2000] VSCA 227; (2000) 2 VR 612.

[4] [2007] VSC 65.

[5] Brygel v Stewart-Thornton [1992] VicRp 70; [1992] 2 VR 387 at 390-1, per JD Phillips J, and the cases there referred to.

[6] Potter v Tural [2000] VSCA 227; (2000) 2 VR 612 at 614 [3], per Callaway JA and at 618 [20], per Batt JA, Tadgell JA concurring.

[7] Potter v Tural [2000] VSCA 227; (2000) 2 VR 612 at 614 [6], per Callaway JA and at 621-2 [26], per Batt JA, Tadgell JA concurring.

[8] Potter v Tural [2000] VSCA 227; (2000) 2 VR 612 at 622 [26], per Batt JA, Tadgell JA concurring.