Applicant v First Respondent

14 At a directions hearing on 28 September 2011, counsel for the Chief Examiner stated that the CPO had been extended on 4 August 2011 for six months. On 25 January 2012, the solicitors for the Chief Commissioner of Police wrote to BCD's solicitors to advise that the CPO was due to expire on 3 February 2012 and to assert that the s 12 proceeding would become incompetent after that date. On 2 February 2012, BCD's solicitors replied stating that they did not accept that the s 12 proceeding would become incompetent on the expiration of the CPO. On 3 February 2012, the solicitor for the Chief Commissioner of Police spoke to BCD's solicitor and informed her that the Chief Commissioner of Police would not apply for an extension of the CPO.

15 At the hearing of the s 12 proceeding on 8 May 2012, BCD submitted that, as the CPO was extant when the s 12 proceeding was commenced on 2 September 2011, the Court acquired jurisdiction under s 12(1) of the Act to revoke the CPO and that this jurisdiction did not lapse when the CPO expired. He also submitted that the word 'revoke' in s 12(1) must be read widely to include both a retrospective and a prospective revocation.

16 In support of his submissions, BCD relied on the following observations of Smith J in C v Chief Commissioner of Police:[4]

It is ... strongly arguable that a coercive powers order having been made, a triable issue is created because the court had to reach a conclusion as to whether the prerequisites for the making of an order were satisfied. Further, any alleged offender named would have an interest in challenging the validity of the order. I note that it was conceded by counsel for the defendants that a coercive powers order is open to collateral challenge by application for judicial review of the witness summons order.

...

Section 12 is intended to give further control of the statutory scheme to the Supreme Court by enabling it to revoke coercive powers orders in appropriate circumstances. It is also noteworthy that the Parliament did not attempt to specify any test for revocation. In my view, s 12 is a very important safeguard provided by the Parliament for all citizens of this State.

...

...s 12 is a safeguard provision operating in a special situation. It empowers the independent judicature to intervene to terminate the operation of a coercive powers order. It is intended to provide a safeguard for all, which can be activated by anyone whose fundamental rights and liberties have been affected by the making of a coercive powers order and action taken under such an order, including the issuing of summonses to witness.

17 BCD submitted that, if the Court's power under s 12(1) of the Act is interpreted narrowly to permit only prospective revocation of a coercive powers order which has not yet expired, the section would be incapable of providing the important safeguards to which Smith J referred in C's case.

18 BCD also relied on the second reading speeches for the Major Crime (Investigative Powers) Bill 2004 ('2004 Bill')[5] and the Major Crime Legislation Amendment Bill 2008 ('2008 Bill') which amended s 12 of the Act following C's case. In the second reading speech for the 2004 Bill, the Minister for Community Services stated that the Supreme Court 'can also revoke an order at any time, independently of notification by the police'.[6]

19 The 2008 Bill inserted some procedural provisions in the Act to facilitate applications for revocation. BCD relied on the facts that the 2008 Bill was passed following C's case and that the Attorney-General did not say anything that restricted the broad view of s 12 expressed in that case.[7]

20 The Chief Commissioner of Police and the Chief Examiner submitted that s 12(1) of the Act unambiguously provided that the Court had jurisdiction to revoke a coercive powers order only prior to its expiration and that, as the CPO had expired, the Court lacked jurisdiction to revoke it. They submitted that an order that has expired has ceased to exist, such that there was nothing left to revoke. They also contended that even if the CPO had not expired, its revocation could only operate prospectively and would not affect anything that was done pursuant to it prior to its revocation.

21 The Chief Commissioner of Police submitted that the legislative context indicates that the word 'revoke' in s 12(1) means a prospective revocation. Reliance was placed on ss 12C and 13, which specify what must be done after a coercive powers order is revoked. Those sections provide that any witness summons issued in reliance on the coercive powers order must be revoked if the summons has not yet been served or the date for attendance has not passed. Section 13 also provides that the Chief Examiner must release from attendance each witness who has been summoned to attend an examination in reliance on the order.

22 In my opinion, the Court's jurisdiction under s 12(1) of the Act is confined to revoking a coercive powers order prior to its expiration. Once the order has expired, the Court lacks jurisdiction to revoke it. This is so even if the proceeding seeking a revocation of the order was commenced prior to its expiration.

23 According to the Macquarie Dictionary, 'expire' means 'to come to an end; terminate'. Once a coercive powers order expires, it ceases to exist and there is no subject matter in respect of which a revocation order can be made.

24 There is nothing in C's case or in the second reading speech for either the 2004 Bill or the 2008 Bill that is inconsistent with my conclusion at [22] above. The important safeguards to which Smith J referred in C's case apply provided that an application is made to the Court on a timely basis to enable the Court to make an order revoking a coercive powers order prior to its expiration. The statement in the second reading speech for the 2004 Bill that the Court can revoke an order 'at any time, independently of notification by the police' simply means that the Court can act on its own initiative prior to the expiration of a coercive powers order; it does not mean that such an order can be revoked after it has expired.

25 In the present case, BCD should have applied for an urgent hearing of the s 12 proceeding on 25 January 2012 when he was informed that the CPO would expire on 3 February 2012. Instead, he refused to accept that the expiration of the CPO would affect the Court's jurisdiction.

26 As the CPO expired on 3 February 2012, the Court lacks jurisdiction to revoke it. In the light of this conclusion, it is not necessary for me to decide whether the power to revoke a coercive powers order in s 12(1) of the Act is confined to prospective revocation.

27 It follows that the s 12 proceeding must be dismissed. All the subpoenas that were issued in the proceeding fall with it and must be dismissed.

28 The Chief Commissioner of Police and the Chief Examiner have applied for their costs of the s 12 proceeding. Although BCD resisted an order for costs on the basis that the issues raised in the s 12 proceeding were difficult and had not previously been considered by the Court, I am not satisfied that there is any basis for departing from the normal rule that costs follow the event.

29 In the O 56 proceeding, BCD sought a declaration of invalidity in respect of the CPO as originally made on 13 August 2008 and in respect of all subsequent variation and extension orders. The grounds for the declaration in the amended application for review[8] are identical to the grounds in the s 12 proceeding which are set out at [13] above.

30 The parties agreed that, as the grounds for the grant of relief under O 56 arose in 2008, the O 56 proceeding would be incompetent unless the Court granted an extension of time under r 56.02(3) of the Rules. That rule provides that the Court shall not extend the 60 day time limit set out in r 56.02(1) 'except in special circumstances'.

31 At a directions hearing on 13 February 2012 before Coghlan J, there was extensive discussion about the substance of the legal issues that BCD sought to agitate in this Court and the legal avenues for doing so. In that context, there was discussion about the appropriateness of the O 56 proceeding and whether special circumstances could be demonstrated to warrant an extension of time under r 56.02(3). The following exchange took place between Coghlan J and senior counsel for the Chief Examiner:

His Honour: We have an application for the order 56 proceeding. I've got to give leave, or somebody has got to give leave if it's going to proceed.

Mr Holdenson: Someone has got to find special circumstances for it to be in existence. That's what the rules provide.

His Honour: I wouldn't press me, Mr Holdenson, because if I'm pressed I wouldn't have much difficulty finding special circumstances here and now.

Mr Holdenson: I'm not saying not to find it, I'm just ensuring that what's done is done regularly.

32 BCD did not file an affidavit in the O 56 proceeding. Accordingly, he has given no evidence as to the reasons for the delay. BCD's solicitor swore an affidavit deposing to the existence of special circumstances. In that affidavit, the solicitor referred to the filing of the s 12 proceeding and to the communications to which reference was made at [14] above and then stated:

It is submitted that when [BCD] became aware that the [CPO] would not be renewed, [the O 56] proceeding ... was initiated to ensure this Honourable Court would have jurisdiction to determine the arguments put forward in the [s 12 proceeding] in the event that the Court upholds the submission of the [Chief Commissioner of Police] that the [s 12 proceeding] is now incompetent.

33 BCD filed written submissions in support of his application for an extension of time. In those submissions, BCD stated:

The circumstances are plainly special.

First the Act contains far reaching powers and the applicant contends, inter alia, that the Act is unconstitutional. The legitimacy of the criminal charge depends on the validity of the Act.

Second, the applicant commenced s 12 proceedings in September 2011 and was advised within days of the expiry of the CPO (for the first time) of the [Chief Commissioner of Police's] plan to argue that the proceedings were no longer competent.

Third, there was no delay on the part of the applicant in initiating the O 56 proceedings once advised that the [Chief Commissioner of Police] would not be seeking a further extension of the CPO.

Fourth, the purpose of the O 56 proceeding is to ensure that the points raised in the s 12 proceeding are determined by this Court.

The applicant relies on the observations of Coghlan J at the directions hearing conducted on 13 February 2012 ... At that date neither respondent - contrary to the current submissions - indicated opposition to the extension of time.

The extension of time should either be granted now or the question reserved until full argument has occurred (as is often the practice).

34 The Chief Commissioner of Police and the Chief Examiner submitted that, in the absence of evidence explaining why BCD did not commence proceedings under O 56 within 60 days of the day he became aware of the CPO on 14 October 2008, the Court cannot find special circumstances. They contended that, the fact that BCD acted promptly once he became aware that the s 12 proceeding may be incompetent, did not constitute special circumstances.

35 The authorities make clear that whether special circumstances have been demonstrated depends on the facts of each case. Relevant considerations include the

reasons for the delay,[9] the length of the delay,[10] whether the applicant had legal representation, whether the respondent has suffered any prejudice as a result of the delay,[11] whether the respondent would be prejudiced by an extension of time,[12] whether the respondent opposes the extension of time, the injustice to the applicant if the decision or order is allowed to stand,[13] the interests of and justice to both parties,[14] and whether the applicant has an arguable case.[15] Another important consideration is the public interest in ensuring certainty and finality in public decision-making once a statutory time limit for challenging a decision has expired.[16]

36 In the present case, the delay exceeds three years and there was no evidence to explain it. It appears that, at all relevant times, BCD was legally represented.

37 The Chief Commissioner of Police and the Chief Examiner have not asserted that they have suffered any prejudice as a result of BCD's delay. Nor have they asserted that they would be prejudiced by an extension of time.

38 It is apparent from [32] to [33] above that the O 56 proceeding was filed out of an abundance of caution in case the s 12 proceeding was found to be incompetent. However, a failure to commence a proceeding under O 56 within 60 days on the erroneous view that an alternative remedy was available will not ordinarily constitut[17]special circumstances.17 Likewise, the mere fact that BCD is facing criminal charges does not amount t[18]special circumstances.18

39 At the directions hearing on 13 February 2012, neither the Chief Examiner nor the Chief Commissioner of Police conceded that there were special circumstances. Coghlan J's comments reflected his Honour's desire that the substance of BCD's grounds for impugning the CPO be considered by the Court. His Honour was not in a position to, and did not, decide the question of special circumstances.

40 During the hearing on 8 May 2012, there was brief discussion about whether s 199(1)(c) of the Criminal Procedure Act 2009 provided an appropriate avenue for BCD to seek a pre-trial determination of the validity of the Act. No party suggested that that section could not be used to agitate at least some of the grounds set out at [13] above. This is not a case where the refusal of an extension of time under r 56.02(3) would leave BCD without any legal avenue for challenging the validity of the Act.

41 During the hearing, there was also brief discussion about the difficult issue of whether a judicial review remedy could be granted by a single judge of the Court in respect of an order made by another judge of the Court.[19] Even if it is assumed that BCD has an arguable case, however, in the light of the lengthy delay in commencing the O 56 proceeding, the absence of any evidence explaining that delay and the principles set out at [38] above, I am not satisfied that there are special circumstances in the present case.

42 It follows that the O 56 proceeding must be dismissed. All the subpoenas that were issued in the proceeding fall with it and must be dismissed. As neither the Chief Examiner nor the Chief Commissioner sought costs, no costs order will be made.

[1] BCD had been brought before the Chief Examiner on 7 November 2008 pursuant to an earlier custody order. BCD declined to take an oath or to make an affirmation and was charged with contempt of the Chief Examiner. The charge did not proceed for the reasons given by Lasry J in R v AX [2009] VSC 153 (22 April 2009) in relation to the making of a costs order in favour of BCD.

[2] On 8 October 2010, BCD was committed for trial in the County Court. On 13 February 2012, Coghlan J made an order under s 167 of the Criminal Procedure Act 2009 transferring the trial from the County Court to the Supreme Court.

[3] Although leave was not sought for the filing of the amended application, the parties' submissions were based on this document.

[4] [2008] VSC 51; (2008) 20 VR 174, 183 [24], 187 [31], 193 [36] ('C's case') (citations omitted).

[6] Victoria, Parliamentary Debates, Legislative Assembly, 5 October 2004, 614 (Sherryl Garbutt).

[7] Victoria, Parliamentary Debates, Legislative Assembly, 12 November 2008, 4566-8 (Rob Hulls, Attorney-General).

[8] Although leave was not sought for the filing of the amended application, the parties' submissions were based on this document.

[9] Hinch v County Court of Victoria [2009] VSC 548 (3 December 2009) [19] ('Hinch'); Lednar v Magistrates' Court [2000] VSC 549; (2000) 117 A Crim R 396, 410 [141] ('Lednar').

[10] Young v County Court [2005] VSC 311 (10 August 2005) [15] ('Young').

[11] Young [2005] VSC 311 (10 August 2005) [15].

[12] Lednar [2000] VSC 549; (2000) 117 A Crim R 396, 410 [141], [142].

[13] Lednar [2000] VSC 549; (2000) 117 A Crim R 396, 410 [143].

[14] Lednar [2000] VSC 549; (2000) 117 A Crim R 396, 410 [142], 411 [146].

[15] Lednar [2000] VSC 549; (2000) 117 A Crim R 396, 410 [141], [143]; Young [2005] VSC 311 (10 August 2005) [15].

[16] Lednar [2000] VSC 549; (2000) 117 A Crim R 396, 410 [142].

[17] Mann v Medical Practitioners Board of Victoria [2004] VSCA 148; (2004) 21 VAR 429, 447 [58], 449 [67], 451[72]-[76]; Gatto v Felstead [2012] VSCA 14 (9 February 2012) [18].

[18] Hinch [2009] VSC 548 (3 December 2009) [1]-[2], [76].

[19] This issue was considered by James J in Haynes v A-G (NSW) (Unreported, Supreme Court of New South Wales, James J, 9 February 1996) 7-14. See also Ousley v The Queen (1997) 192 CLR 69, 101-2 (McHugh J), 140 n 303, 146 n 342, 150 n 357 (Kirby J). When the issue arises in Victoria, consideration will need to be given to r 46.08(b) of the Rules which provides that the Court may set aside or vary an order that was made without notice to the applicant.