Clark v Attorney General for New South Wales

Judgment

1. MACFARLAN JA: I agree with White JA.
2. WHITE JA: The applicant, Mr Peter Clark, seeks judicial review of a decision of a judge of the Court (Cavanagh J) dismissing Mr Clark's application under s 78 of the Crimes (Appeal and Review) Act 2001 (NSW) ("the Act") for an inquiry into his conviction on 26 June 2009 of an offence of doing an act with intent to pervert the course of justice contrary to s 319 of the Crimes Act 1900 (NSW) (count 6) and an offence of aggravated (under authority) sexual intercourse with a child between 14 to 16 contrary to s 66C(4) of the Crimes Act (count 12). (Application by Peter Frederick Clark pursuant to s 78 of the Crimes (Appeal and Review) Act 2001 (NSW) [2021] NSWSC 1364).
3. Section 79 of the Act relevantly provides: "79 Consideration of applications (1) After considering an application under section 78 or on its own motion - (a) the Supreme Court may direct that an inquiry be conducted by a judicial officer into the conviction or sentence, or (b) the Supreme Court may refer the whole case to the Court of Criminal Appeal, to be dealt with as an appeal under the Criminal Appeal Act 1912. (2) Action under subsection (1) may only be taken if it appears that there is a doubt or question as to the convicted person's guilt, as to any mitigating circumstances in the case or as to any part of the evidence in the case. (3) The Supreme Court may refuse to consider or otherwise deal with an application. Without limiting the foregoing, the Supreme Court may refuse to consider or otherwise deal with an application if - (a) it appears that the matter - (i) has been fully dealt with in the proceedings giving rise to the conviction or sentence (or in any proceedings on appeal from the conviction or sentence), or (ii) has previously been dealt with under this Part or under the previous review provisions, or (iii) has been the subject of a right of appeal (or a right to apply for leave to appeal) by the convicted person but no such appeal or application has been made, or (iv) has been the subject of appeal proceedings commenced by or on behalf of the convicted person (including proceedings on an application for leave to appeal) where the appeal or application has been withdrawn or the proceedings have been allowed to lapse, and (b) the Supreme Court is not satisfied that there are special facts or special circumstances that justify the taking of further action. (4) Proceedings under this section are not judicial proceedings. However, the Supreme Court may consider any written submissions made by the Crown with respect to an application."
4. Mr Clark contended that the matters he raised in respect of counts 6 and 12 raised a doubt or question as to his guilt in respect of those counts, or as to part of the evidence in the case (s 79(2)). He contended that doubt about his guilt on count 6 or 12 should create doubt about the other counts upon which he was convicted.
5. On 26 June 2009 after a trial before Norrish DCJ and a jury, Mr Clark was convicted on 23 counts. The majority of the counts concerned sexual offences involving minors. He was also convicted on six counts of acting with the intent to pervert the course of justice.
6. Mr Clark was sentenced to imprisonment for a non-parole period of 10 years and 9 months with a balance of term of 3 years and 8 months. A Crown appeal against sentence was dismissed on 25 May 2011 (REGINA v PFC [2011] NSWCCA 117).
7. Mr Clark appealed against his convictions. That appeal was heard after the dismissal of the Crown appeal against sentence. His conviction appeal was dismissed on 15 December 2011 (PFC v R [2011] NSWCCA 275).
8. Mr Clark applied pursuant to r 50C of the Supreme Court (Criminal Appeal) Rules 2021 to set aside or vary the order of 15 December 2011 dismissing the appeal. On 30 October 2014 that application was dismissed (PFC v R (No.2) [2014] NSWCCA 241).
9. A further application brought under r 50C seeking to set aside the previous dismissal of his application under r 50C to set aside the order of the Court of Criminal Appeal of 15 December 2011 was dismissed on 6 October 2015 (Clark v R [2015] NSWCCA 265). An application for special leave to appeal to the High Court was also dismissed (Clark v Attorney General of New South Wales [2020] NSWCA 70 at [29]-[30]).
10. Mr Clark then brought an application under s 78 of the Act. That application was dismissed by Rothman J on 24 September 2019. His Honour decided that there were no special facts or circumstances prohibiting the exercise of discretion under s 79(3) and, pursuant to that subsection, refused to consider or otherwise deal with the application further (Clark v Attorney General of New South Wales [2019] NSWSC 1277).
11. An application for judicial review of Rothman J's decision was dismissed by this Court on 30 April 2020 (Clark v Attorney General of New South Wales [2020] NSWCA 70).
12. Nothing daunted, on 13 July 2020 Mr Clark filed a further application under s 78 of the Act. That application was dismissed by Cavanagh J on 8 November 2021. His Honour did not refuse to consider or otherwise deal with the application under s 79(3) but concluded that none of the matters raised by Mr Clark caused him to have a doubt or question as to his guilt on counts 6 or 12, and none of the matters raised in respect of those counts could raise any doubt about his guilt in respect of the other counts (at [90]-[93]).
13. As indicated above, the application focused upon Mr Clark's convictions on two counts. Count 6 on the indictment was as follows: "On 1 December 2006 at Port Macquarie in the State of New South Wales, [he] did an act intending to pervert the course of justice, namely, he tendered into evidence at proceedings held at Port Macquarie District Court a tape recording of [DM] making a false statement."
14. Count 12 was as follows: "For that he, between 1 August 2003 and 30 November 2003 at … did have sexual intercourse with [SB], he being a person of the age of 14 years and under the age of 16 years, in circumstances of aggravation, namely that SB was under the authority of himself."
15. Cavanagh J's conclusions were: "[88] In my view, the issues raised by the applicant in respect of Count 12 have been considered by the CCA on earlier occasions and are, in general terms, the same issues that were raised in the first review application. [89] There are grounds for dismissing the application in respect of Count 12 summarily. [90] Having said that, in order to come to that view, it has been necessary to consider the points raised by the applicant in some detail. They do not cause me to have a doubt or question as to his guilt."
16. No appeal lies from the judge's decision because his Honour was not exercising a judicial function but an administrative function in the nature of an inquiry. The decision may be reviewed for jurisdictional error. Mr Clark contends that the decision of Cavanagh J was so unreasonable that no decision maker could have reasonably come to it.
17. In Clark v Attorney General of New South Wales [2020] NSWCA 70 (at [36]) and Holland v Attorney General of NSW [2022] NSWCA 17 (at [11]) McCallum JA, as her Honour then was, observed that it has not been authoritatively determined whether a decision under s 79 is immune from review on the ground of error of law on the face of the record. Nor is it necessary to decide that question on the present application as there is no error of law on the face of the record.

No Error of Law on the Face of the Record

1. In REGINA v PFC (being the judgment of the Court of Criminal Appeal on the Crown appeal against sentence) Hoeben J (as his Honour then was) with the concurrence of Allsop P and Hall J said: "[11] The brothers B were known to the respondent through the respondent's connection to the Taree area. The respondent appears to have known the family generally from earlier contact with an older brother of the complainants. The Crown case in relation to these three complainants was that they became victims of sexual assault by the respondent grooming each of them individually and at separate times with either gifts or trips, excursions on a jet-ski, access to computers with child pornography and cash and treats. [12] There was some dysfunctionality in the B family. The victims of the sexual assaults had lost their mother when they were quite young and it would seem that for a period of time from 2001 until 2006, the respondent had a mentoring role with each of the victims at various times. This was particularly true in relation to SB, who came into the respondent's care with the approval of the Department of Community Services. This gave rise to the circumstances of aggravation in the count 12 and 13 offences being committed while under the authority of the respondent."
2. Mr Clark seizes on the last statement because the Department of Community Services ("DOCS") did not approve of SB coming into his care until May 2004.
3. The issue as to what constituted the authority Mr Clark had over SB was not specifically addressed in the reasons of the Court of Criminal Appeal on the appeal against his conviction but was addressed by that Court (differently constituted) on the first application to reopen that judgment pursuant to r 50C of the Supreme Court (Criminal Appeal) Rules 2021 (Clark v R). There, the Court (Beazley P, Hall and Button JJ) said (at [39]-[40]) that it was not an element of the offence charged that SB was in Mr Clark's care through DOCS and that the Crown's case was that the applicant's authority arose because SB was residing with the applicant in 2003 when the offence was alleged to have occurred.
4. Mr Clark submitted before Cavanagh J that the statement by Hoeben J that "this gave rise to the circumstances of aggravation" in count 12, namely, that SB came into Mr Clark's care with the approval of DOCS, was a ruling that was binding on later courts.
5. This submission was rejected by the judge who said: "[81] Further, the applicant's submissions on estoppel and res judicata and other similar points rather confuse the principles to be applied and the different functions of the Court and the parties. The Court as differently constituted from time to time is not estopped from coming to its own view or decision because a judge in an appeal on a different point made an observation to the contrary. [82] The applicant relies on the description of the offending under Count 12 given by Hoeben J when considering the sentence appeal but his Honour was not considering whether there was error in the conviction of the applicant under Count 12. There is no merit in the applicant's contention that the CCA was bound to adopt the observations of the Court on the sentence appeal when considering the points raised by the applicant on his conviction appeal."
6. This issue does raise a question of law that appears from the reasons of the decision maker on what I would take to be an ultimate determination and hence appears on the face of the record (Supreme Court Act 1970 (NSW) s 69(4)). But no error of law is disclosed. The judge is plainly right. There was no issue in the first CCA appeal as to Mr Clark's guilt. No issue estoppel could arise from the observations of Hoeben J because what gave rise to the circumstances of aggravation in count 12 was not an issue, let alone a legally indispensable issue, that needed to be decided to determine sentence (Blair v Curran (1939) 62 CLR 464 at 532; [1939] HCA 23). In any event, the doctrine of issue estoppel as it applies in civil proceedings is inapplicable in the criminal law (Rogers v The Queen (1994) 181 CLR 251 at 254-5, 278; [1994] HCA 42; The Queen v Carroll (2002) 213 CLR 635; [2002] HCA 53 at [33], [90]).
7. Mr Clark emphasised the word "appears" in s 79(2) of the Act. He submitted that fresh evidence before Cavanagh J did not merely appear to raise a doubt or question as to his conviction on count 12, but proved beyond doubt that the evidence never supported count 12 from the beginning. This submission did not raise a question of law. The judge did not misconstrue s 79(2). Mr Clark challenged the judge's statement at [77] that "…I am not engaged in a new fact finding process based on allegedly fresh evidence". This was the first ground of review. Read in isolation that sentence may be problematic as his Honour was asked to find facts to the extent of deciding whether they raised a doubt or question as to Mr Clark's conviction. But read in context his Honour's statement raised no error of law. His Honour said: "[75] The point made by the applicant in respect of Count 12 is essentially the same point that he has made on a number of occasions since the trial, albeit expressed in a different way. He says that SB was not placed by DOCS with him until 2004 and as such the conduct the subject of Count 12 could not have occurred in 2003. Further, the circumstance of aggravation could not have occurred because the complainant was not under his authority in 2003. He relies on 'fresh evidence' to establish that the complainant was not placed with him by DOCS in 2003. [76] If the outcome of this application was dependent upon a review of the documents relied on by the applicant and a determination as to when DOCS placed the complainant with the applicant, then the applicant may be on stronger ground. This is because the documents relied on by the applicant tend to suggest that the complainant was placed with the applicant by DOCS in 2004. [77] However, I am not engaged in a new fact finding process based on allegedly fresh evidence. Even if contrary to the respondent's submissions some of the documents on which the applicant relies are fresh and were not previously available and even if in some way the applicant should have had access to them previously, the facts which are said to be established by these new documents are the same facts on which the applicant has been relying throughout his applications and appeals for many years. [78] I am not considering an appeal. I am considering whether the matters raised as part of this review cause me to have a doubt as to the applicant's guilt."
8. When the judge's reasons are considered as a whole it is clear that his Honour did not misunderstand the nature of his inquiry.
9. Accordingly, it is unnecessary to consider whether, if error of law on the face of the record had been established, the judge's decision would have been amenable to judicial review on that ground.
10. The remainder of Mr Clark's submissions were directed to seeking to establish that the judge made unreasonable errors of fact that amounted to jurisdictional error.

Count 6

1. Mr Clark's submissions in this Court were entirely directed to count 12. In relation to count 6 he relied on his submissions he made before the judge. He did not seek to demonstrate why the judge erred in his dealing with that count, let alone why his Honour's reasons for not having a doubt or question as to Mr Clark's guilt on that count (at [30]-[54]) demonstrated jurisdictional error. No such error appears to me from my reading of Mr Clark's submissions and the judge's reasons.

Count 12

1. In his decision of 24 September 2019, Rothman J said (at [87]), no doubt correctly in the circumstances of this case, that if SB did not live with Mr Clark between 1 August 2003 and 30 November 2003, then the allegations in relation to count 12 could not be proved.
2. Mr Clark pointed to evidence that he said established beyond doubt that SB was not living with him during that period. This included evidence given by SB at trial, a statement made by SB's father before trial, and documents which he said he only obtained after his application to Rothman J had been dismissed.
3. At the trial SB gave evidence in chief that he first met Mr Clark when he was in Year 9 and that was in 2003. He said that he was then about 12. The Crown Prosecutor repeated the question saying: "Q: I don't want to suggest an answer to you, do you remember how old you were in Year 9 at […School]? A: Yeah, 12."
4. SB said he had a conversation with Mr Clark about his situation at home and that Mr Clark said that "We'll go to DOCS and organise you to come into my care". He was asked for how long he had known Mr Clark by the time of that conversation and said "Not very long I don't think; a couple of months I think". Records obtained from DOCS record that Mr Clark assumed care of SB on 4 May 2004. It is not now disputed (if it ever was) that SB was in Year 9 in 2004 and that in 2003, when the offence charged by count 12 was said to have been committed, he was in Year 8. This is confirmed by documents produced by the Department of Education, which Mr Clark said he was only able to obtain after the hearing before Rothman J.
5. Mr Clark raises two issues. First, whether the charged aggravating circumstance of SB being under his authority was based on his having the approval of DOCS to be responsible for SB's care and secondly, whether SB was living with him during the period of August to November 2003.
6. In her opening address to the jury, the Crown Prosecutor said: "Now what the Crown has to establish beyond reasonable doubt to prove that aggravated element is that SB was under the accused's care or supervision, and I anticipate that you will hear evidence that SB had gone by arrangement to live with the accused and there were only two of them living together when he was 14 and there is some documentation from DOCS and the Public Trustee, and the evidence of SB's father all going to that element."
7. In May 2004 SB was 15. He was 14 in the period from 1 August to 30 November 2003.
8. These were not the only relevant circumstances in evidence. In her closing submissions, the Crown Prosecutor said: "…there was a circumstance of aggravation in relation to these two counts, counts 12 and 13, and what that circumstance is, is that SB was under the authority of Mr Clark at that time, which means that Mr Clark was[, the] word "guardian" has been used or carer. He was living with him."
9. The Crown Prosecutor then went on to address conflicting evidence as to when SB first lived with Mr Clark.
10. In his summing up to the jury, the trial judge said: "[The Crown] must prove that SB was under the accused's care, supervision and authority at the time of the commission of the offence and the prosecution relies upon the evidence of the complainant that he was living with the accused and that the accused was caring for [him] under the auspices of the Department of Community Services, administering his finances and the like."
11. Here the trial judge identified two grounds on which the Crown asserted that SB was under Mr Clark's authority, namely, the fact that he, as a minor, was living with Mr Clark and secondly that he had been given responsibility for the care of SB by DOCS and had authority to administer his finances.
12. In his sentencing remarks, the trial judge said that the circumstances of aggravation arose from SB coming into Mr Clark's care with the approval of DOCS. As noted above, this was repeated by Hoeben J in the Crown appeal against sentence (REGINA v PFC at [12]). But as also noted above the issue was before the Court of Criminal Appeal on three occasions between 2011 and 2015, where the fact that DOCS' approval to Mr Clark's assuming responsibility for SB's care was not given until May 2004 was evidently accepted.
13. Returning to SB's evidence as to when he first lived with Mr Clark, SB was asked about the conversation referred to at [32] and gave the following further evidence: "Q. Do you remember when it was that you had that conversation with him? A. October l think. Q. What year are you talking about? A. 2004 l think. Q. I just want to clarify this. You said that you first met him when you were in year 9 at … School? A. Yeah."
14. SB was reminded that he had given evidence that he first met Mr Clark when he was in Year 9 and confirmed that that was the year he was talking about.
15. SB's father gave evidence that SB went to live with Mr Clark in August 2003 and said that that was when SB was in Year 9. He then repeated that SB moved out of the family home in August 2003.
16. In his submissions before the Cavanagh J, Mr Clark contended that SB's father's evidence at trial was tainted because he was repeating what he had said in a statement he had made to the police which repeated the date from a statement given by SB to the police (which SB's father had been given by the police). SB's father was not cross examined on this evidence. That is one of Mr Clark's complaints. He submits, as he submitted before the Court of Criminal Appeal, that his defence was conducted incompetently by his counsel.
17. SB's father's evidence was clarified by the trial judge in the following questions and answers: "Q: You say he moved to live with Mr Clark in August 2003, is that correct? A: That's correct. Q: And you said he was there a short period and he returned to your home? A: That's correct. Q: Could you tell us when he returned? A: November 2003. Q: And then he stayed another short period at your place? A: That's correct, your Honour. Q: And when did he move out again? A: Early 2004. Q: I see, and how long did he stay away from your home then? A: I'm not sure on recollection. CROWN PROSECUTOR Q: Did he return to live with you again? A: I'm sure he did."
18. In the Crown Prosecutor's closing address, she stated: "SB's evidence was that, first as to dates, that this was in year 9, he initially said that he thought it was October 2004, but then he talked about moving out and moving back in the following year in April of 2004. So what the Crown says, it is a matter for you, members of the jury, you are the finders of the fact, that when he said October '04 he meant October '03 and that is because of the evidence he gave afterwards. Importantly I can indicate this: His father gave evidence as to these dates. SB senior, it was his recollection that SB first went to live with Clark in August '03 when he was in year 9 but he only lived with him for a short time and then came home in about November. The dates of that count are between 1 August and 30 November 2003. The Crown says that's consistent with that evidence."
19. This issue was ventilated in Mr Clark's appeal against conviction in 2011 (PFC v R). There, the Court stated: "[200] … The appellant contended that SB came to live with him in May 2004. As best we understand it, the complaint was that the trial judge did not direct the jury that SB could not have come to live with him when 12 years old and in year 9, as he had said in his evidence in chief, and so the offence (which the appellant denied) could not have been committed in 2003 when SB was living with him. [201] The offences under counts 12 and 13 contained as an element sexual intercourse with someone under 16 years but, as the Crown Prosecutor emphasised in her closing address, the circumstance of aggravation in relation to those two counts was that SB was under authority at the time. A person in authority who breaches the trust relationship aggravates the offence. SB initially had said he thought the offence the subject of count 12 was in October 2004 but in evidence said that he thought he was 12 years old and in year 9. SB's father gave evidence that SB initially moved in with the appellant in August 2003 for a short period, then moved back home, and then moved back in with the appellant in 2004. The Crown submission was that SB's initial reference to October 2004 should be taken as having been an intended reference to October 2003. [202] No misdirection was identified, and it was for the jury to be satisfied as to the facts. We do not consider there is any substance in the complaint."
20. The issue was raised again in 2014 on the first application made pursuant to r 50C of the Criminal Appeal Rules to vary or set aside the orders of the Court of Criminal Appeal of 15 December 2011 (PFC v R (No.2) [2014] NSWCCA 241 at [84]-[88], [125]) and on the second application under r 50C in 2015 (Clark v R at [43]-[46]).
21. It was not an element of the offence charged under count 12 that SB was in Year 9 at the time the offence was said to have been committed. But both SB and SB's father, by referring to SB's having been in Year 9 at the time he went to live (or first went to live) with Mr Clark may have anchored their memory on dates with their recollection of what year he was in at school at that time. Mr Clark complains that neither was cross-examined on when SB was in Year 9.
22. Grounds of review numbered two to four were as follows: "Two: In dismissing the application summarily under s 79(3) Cavanagh J made a House error, he 'mistook the facts' in that the fresh evidence was absolute it went fair and above 'a doubt or question' proving beyond doubt that the Count 12 conviction was unsafe calling into question the other guilty verdicts. Three: Cavanagh J made a jurisdictional error because substantial arguments were not addressed according to law the authority cited in Buttrose v Attorney General of New South Wales [2015] NSWCA 221 at [25] and in PFC v R (No. 2) [2014] NSWCCA 241 at [32]. Four: By proceeding, on misapprehensions of fact, and law, which were material Cavanagh J erred."
23. This is not an appeal from the orders of Cavanagh J, let alone from the earlier orders of the Courts of Criminal Appeal. A challenge on the ground of manifest unreasonableness amounting to jurisdictional error is not to be equated with a merits review. In Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18, Hayne, Kiefel and Bell JJ referred to a decision-maker being unreasonable in a legal sense where, by reference to the scope and purpose of the statute under which the decision was made, he or she has failed to give adequate weight to a factor of great importance, or given excessive weight to a factor of no importance, or reasoned illogically or irrationally (at [72]). French CJ said (at [30]) that the requirement of reasonableness is not a vehicle for challenging a decision on the basis that the decision-maker has given insufficient or excessive consideration to some matters or made an evaluative judgment with which the court disagrees but was rationally available. Gageler J said: "[109] The conception underlying the stringency of the test as applicable in Australia is captured by the observation made fifty years ago that: 'This Court has in many and diverse connections dealt with discretions which are given by legislation to bodies, sometimes judicial, sometimes administrative, without defining the grounds on which the discretion is to be exercised … We have invariably said that wherever the legislature has given a discretion of that kind you must look at the scope and purpose of the provision and at what is its real object. If it appears that the dominating, actuating reason for the decision is outside the scope of the purpose of the enactment, that vitiates the supposed exercise of the discretion. But within that very general statement of the purpose of the enactment, the real object of the legislature in such cases is to leave scope for the judicial or other officer who is investigating the facts and considering the general purpose of the enactment to give effect to his view of the justice of the case.' [110] The same observation lends force to the suggestion that, for the purpose of applying the test, 'guidance may be found in the close analogy between judicial review of administrative action and appellate review of a judicial discretion'. There is, in particular, a close analogy with the settled principle that an appellate court will review the exercise of a judicial discretion 'if upon the facts it is unreasonable or plainly unjust', or if 'failure to give adequate weight to relevant considerations really amounts to a failure to exercise the discretion actually entrusted to the court'. It is therefore fair to say that '[i]f a discretionary power is exercised in a way in which a reasonable repository of the power might exercise it, the exercise of the power is supported by the statute which confers it, whether the discretion is judicial or administrative in nature'." (Citations omitted)
24. A decision under s 79(1) is discretionary, and s 79(2) must be satisfied before the discretion can be exercised.
25. Cavanagh J's essential reasons were: "[79] The point pursued by the applicant was dealt with comprehensively by the CCA in the applicant's appeal in respect of the further r 50C application. I have already referred to the relevant passages from that judgment. As the Court observed for the purposes of that appeal, the applicant appears to have rewritten the indictment. The applicant takes the same approach to this review. [80] As the Court said in 2015, there was evidence that SB was living with the applicant at least at some time in 2003. That evidence came from SB's father. The applicant complains on this application that SB's father was not telling the truth but that was a matter for the jury to determine. Rothman J considered a similar point based on different fresh evidence on the first review application. … [83] The material relied on by the applicant for the purposes of this application does not cause me to have a doubt or question as to the applicant's guilt under Count 12. Nor does it cause me to have a doubt or question as to the evidence in the case. There was evidence that the complainant was in the care of the applicant at some point in 2003, albeit not through DOCS. The indictment does not specify that the circumstances of aggravation arose through the complainant being placed with the applicant through DOCS. Gaining access to and relying on additional evidence to establish that the complainant was not placed with him until 2004 does not advance the points raised by the applicant on earlier occasions."
26. These reasons are logical and rational. The fact that the same complaints had been made repeatedly on earlier occasions and had been rejected is a rational reason for not entertaining doubt about Mr Clark's conviction. The fact that Mr Clark had obtained documentary confirmation that SB was in Year 8 in 2003, not Year 9, only confirmed what he already knew and which could have been and evidently was advanced to the Court of Criminal Appeal on his appeal against conviction and his applications to reopen that appeal. Cavanagh J characterised the fresh evidence on which Mr Clark relied as additional evidence. That evidence did not displace the facts that whether SB was in Year 8 or Year 9 in 2003 was not an element of count 12, that there was some evidence to support the jury's finding, and that Mr Clark's complaint about SB's evidence and SB's father's evidence had been considered and rejected on earlier occasions.
27. For these reasons neither ground 2 nor 4 of the grounds of review is established. Nor did Mr Clark establish any substantial and clearly articulated submission that the judge did not address (ground 3).
28. On the hearing of the summons for judicial review Mr Clark asked that this Court require SB to attend for questioning. No such order was made, or could properly have been made. His request was the result of an apparent misconception of the application to this Court. Whether the judge made an error that was amenable to judicial review depended on the materials before him. No evidence SB could have given to this Court could have been relevant to that question.
29. None of the grounds of review is established. I propose that the summons be dismissed with costs.
30. MITCHELMORE JA: I agree with White JA.

Amendments 03 February 2023 - Correction to misspelling of Counsel's name on Coversheet DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 03 February 2023