25. Because of the challenges as to whether these events constitute decisions for the purposes of the ADJR Act, I shall refer to them as "advices".

26. On 28 June 2001 the first respondent advised the applicant (the first advice) that -

1. With regard to the matters referred to under the heading "Psychiatric Report of Dr Hugh Jolly dated 30.1.98", I have not yet been able to decide whether they raise a doubt or question under s 475, or whether, if they do, the doubt or question is of sufficient substance to justify directing an inquiry.

2. [The first respondent's proposal to conduct a hearing to further consider the application]

3. I have decided to decline to direct an inquiry into the matters referred under the heading "Evidence of former Winchester murder inquiry detective, Cliff Forster", "Evidence that organised crime committed the murder" and "Forensic evidence of Robert Barnes is unsafe".

4. The grounds on which I have made the decision are as follows:

The matters referred to add nothing of substance to the evidence in the trial as it was summarised in the judgment of the Full Court of the Federal Court in Eastman v The Queen.

The applicant says that this evidences that the first respondent refused to direct an inquiry into the matters referred to under the headings set out in the applicant's application of 31 May 2001 being -"Evidence of former Winchester murder inquiry detective, Cliff Forster", "Evidence that organised crime committed the murder" and "Forensic evidence of Robert Barnes is unsafe".

27. On 7 August 2001 the first respondent made further remarks on the applicant's application in which he proposed to -

Direct the Chief Magistrate, or a Magistrate nominated by him, to summon and examine on oath all persons likely to give material information on the matter of the fitness to plead of David Harold Eastman during the whole or any part of his trial for the murder of Colin Winchester.

The applicant says that this evidences that the first respondent refused to direct an inquiry into the applicant's fitness to plead at times other than the trial and whether the question of fitness to plead had been intentionally created or contributed to by any improper actions by any member of the AFP (the second advice).

28. On 17 August 2001 the applicant was notified by the Registrar (the third advice) that the first respondent -

Has read a copy of the Report and has decided that it does not raise a doubt or question sufficient to direct an Inquiry into the evidence of Robert Barnes pursuant to s 475 of the Crimes Act 1900.

A copy of the report has been sent to the Attorney-General with a suggestion that the National Institute of Forensic Science be asked to comment on the matters raised by Dr Wallace.

The applicant says that this evidences that the first respondent refused to direct an inquiry into the evidence of Robert Barnes.

29. On 17 September 2001, the applicant was notified by the Registrar (the fourth advice) -

In response to your request on 10 September 2001 for a reply to your facsimile on 27 August 2001 addressed to the Chief Justice [the first respondent] and containing information relating to the evidence of Robert Barnes and Raymond Webb, I can advise that this document has been forwarded to the Attorney-General for his attention.

The applicant says that this evidences that the first respondent refused to direct an inquiry into the evidence of Raymond Webb.

The ADJR Act

30. The Administrative Decisions (Judicial Review) Act 1989 (ADJR Act) is described as an Act relating to the review on questions of law of certain administrative decisions. It is modelled upon the Administrative Decisions (Judicial Review) Act 1977 of the Commonwealth. The sections of both Acts generally correspond. The purpose of the ADJR Act is to provide a means whereby this court can review decisions of an administrative character made under an enactment of the Australian Capital Territory. The ADJR Act provides for review in respect of a decision that has been made (s 5) and a decision which is in the process of being made (s 6). Where there has been a failure to make a decision, the Act permits an application for an order of review in respect of the failure if there is a duty to make the decision (s 7).

Material other than material before the decision-maker

31. The legislation is concerned with the legality of the decision under review. It is not concerned with whether the decision was correct or a preferable one on its merits. That consideration is of some importance in this case as the applicant sought to adduce a considerable amount of supplementary material in support of his application for review, which was material not put before the primary decision-maker. I have had regard to that material without ruling upon its admissibility. However, unless it can support any of the grounds relied upon to impugn the legality of the decision, it is clearly not admissible and I so rule. Insofar as it puts matters in context, I have had general regard to it and I admit it for that limited purpose, but not insofar as it goes to the merits of what is said to be the decision.

A decision for the purposes of the ADJR Act

32. Subsection 3(1) of the ADJR Act contains the following definitions -

decision to which this Act applies means a decision of an administrative character made, proposed to be made or required to be made (whether in the exercise of a discretion or not) under an enactment, other than a decision specified in schedule 1.

...

failure, in relation to the making of a decision, includes a refusal to make the decision.

33. Subsection 3(2) of the ADJR Act provides -

In this Act, a reference to the making of a decision includes a reference to -

(a) making, suspending, revoking or refusing to make an order, award or determination; or

(b) providing, suspending, revoking or refusing to provide a certificate, direction, approval, consent or permission; or

(c) issuing, suspending, revoking or refusing to issue a licence, authority or other instrument; or

(d) imposing a condition or restriction; or

(e) making a declaration, demand or requirement; or

(f) retaining, or refusing to deliver up, an article; or

(g) doing or refusing t do any other act or thing;

and a reference to a failure to make a decision shall be construed accordingly.

34. The question as to what constitutes a decision for the purposes of the Administrative Decisions (Judicial Review) Act 1977 (Cth) has been extensively discussed by Mason CJ in Australian Broadcasting Tribunal v Bond & Ors [1990] HCA 33; (1990) 170 CLR 321. That decision is directly applicable to the counterpart ADJR Act under consideration in this case. Both Brennan and Deane JJ agreed with the reasoning of the Chief Justice as to what is constituted by a decision to which the Act applies. Mason CJ observed that it is clear that a decision to which the Act applied "must be a decision of an administrative character, that it may be made in the exercise of a discretion, and that it must be made under an enactment". He pointed to the relevant policy considerations (at 336-337) -

The relevant policy considerations are competing. On the one hand, the purposes of the AD(JR) Act are to allow persons aggrieved by the administrative decision-making processes of government a convenient and effective means of redress and to enhance those processes. On the other hand, in so far as the ambit of the concept of "decision" is extended, there is a greater risk that the efficient administration of government will be impaired. Although Bowen CJ and Lockhart J appeared to emphasize the first of these considerations in Australian National University v Burns [1982] FCA 191; (1982) 64 FLR 166, at p 172; [1982] FCA 191; 43 ALR 25, at p 30), there comes a point when the second must prevail, as their Honours implicitly acknowledged. To interpret "decision" in a way that would involve a departure from the quality of finality would lead to a fragmentation of the processes of administrative decision-making and set at risk the efficiency of the administrative process.

The policy arguments do not, in my opinion, call for an answer different from that dictated by the textual and contextual considerations. That answer is that a reviewable "decision" is one for which provision is made by or under a statute. That will generally, but not always, entail a decision which is final or operative and determinative, at least in a practical sense, of the issue of fact falling for consideration. A conclusion reached as a step along the way in a course of reasoning leading to an ultimate decision would not ordinarily amount to a reviewable decision, unless the statute provided for the making of a finding or ruling on that point so that the decision, though an intermediate decision, might accurately be described as a decision under an enactment.

Another essential quality of a reviewable decision is that it be a substantive determination. With the exception of s 3(2)(g), the instances of decision mentioned in s 3(2) are all substantive in character. Moreover, the provisions in sub-ss (1), (2), (3) and (5) of s 3 point to a substantive determination. In this context the reference in s 3(2)(g) to "doing or refusing to do any other act or thing_" (emphasis added) should be read as referring to the exercise or refusal to exercise a substantive power._

35. The specific reference that Mason CJ makes to s 3(2)(g) is important for the purposes of this case as it is what is claimed to be a refusal to exercise a power in the decision which is under challenge. Toohey and Gaudron JJ would not have confined s 3(2)(g) to acts involving the exercise of or refusal to exercise a substantive power. They also said (377) -

If an enactment requires that a particular finding be made as a condition precedent to the exercise of or refusal to exercise a substantive power, a finding to that effect is readily characterised as a decision "under an enactment".

36. In the present case it might be said that the decision to direct or not direct a magistrate to summon and examine witnesses is a procedural step before the judge's report required by s 475 of the Crimes Act 1900 is provided. If so, the question is whether such report is the decision to which the ADJR Act applies. Subsection 3(3) of the ADJR Act provides -

Where provision is made by an enactment for the making of a report or recommendation before a decision is made in the exercise of a power under that enactment or under another law, the making of such a report or recommendation shall be taken, for the purposes of this Act, to be the making of a decision.

37. The Attorney-General in his submissions, says that there is no "link" which he says s 3(3) of the ADJR Act requires between the making of a report by a judge and any decisions which might or might not be subsequently made by the Executive. Accordingly, it is submitted that the making of such a report is not a decision to which the ADJR Act applies. In support of this submission, the observations of Ellicott J in Ross & Anor v Costigan & Anor (1982) 41 ALR 319 at 322 in considering that the report of a Royal Commissioner was not a reviewable decision under s 3(3) of the Commonwealth Act, were cited. Ellicott J observed (at 332) -

It was argued that because of the provisions of s 3(3) of the Act the making of a report and recommendation pursuant to the letters patent is "a decision" and that combined with s 3(5) the conduct of the respondent to which I have referred is conduct engaged in or proposed to be engaged in for the purpose of making that decision.

I do not think that s 3(3) has that effect in this case. In my view it contemplates a case where there is provision in an enactment for a specific report or recommendation as a condition precedent to the making of a decision under that enactment or some other.

Ellicott J's view was applied in Edelsten v Health Insurance Commission (1990) 27 FCR 56 at 70 by Northrop and Lockhart JJ. In neither case was there provision in the enactment for the ultimate decision-maker to act on the report or recommendation. However, in the present case, s 475 of the Crimes Act 1900 specifically provides for the matter to be disposed of "as to the Executive, on the report of such judge, or otherwise, shall appear to be just". I would agree that the making of the report is not the only condition precedent for the Executive to act (a petition of the prisoner or some person on his or her behalf is another) but it is a condition precedent upon which a decision may be made under the enactment. In my view, that is sufficient to distinguish the cases upon which the Attorney-General relied.

38. It is in this setting that the decision to not direct an inquiry may be said to not have the quality of finality necessary to constitute it as a reviewable decision whilst such a direction, if made, does. On the other hand, an identifiable and specific refusal may be said to be so in the terms referred to by Toohey and Gaudron JJ in Bond's case that I have cited at [35]. That may be particularly so where there is a matter under consideration that is a necessary step in the process (such as a committal proceeding (see Lamb v Moss [1983] FCA 254; (1983) 76 FLR 296, Eastman v Somes (1992) 106 FLR 346)) and even where there is no requirement that the matter be considered. In any event, it is necessary to carefully consider the nature and scope of what the enactment authorises before the question of whether the decision has the requisite character of finality can be answered.

39. In Australian Broadcasting Tribunal v Bond & Ors (supra) (at 336 and 338), Mason CJ referred to the fact that s 3(2)(b) and (g) of the Commonwealth Act (as in the ADJR Act) included in the making of a decision a refusal "to provide a certificate, direction, approval, consent or permission" as well as a refusal "to do any other act or thing". The submission of the Attorney-General stressed that s 475 did not oblige a judge to direct an inquiry and there could be no remedy under s 7 of the ADJR Act in respect of a failure to make a decision. Section 7 applies where a person has a duty to make a decision (s 7(1)(a)). That was the point taken in the decision of Brownsville Nominees Pty Ltd v Federal Commissioner of Taxation (1988) 19 FCR 169. However, that case is not authority for the proposition that there cannot be a decision under the ADJR Act unless there was a duty or obligation to make it. The definition of "decision to which the Act applies in s 3(1) of the ADJR Act refers to "a decision ... made, proposed to be made or required to be made". Section 7 of the ADJR Act may be confined to decisions where there is a duty to make the decision, not so decisions that may be the subject of review pursuant to s 5 and s 6 of the Act.

A relevant authority - Right to Life Association (NSW) Inc v Secretary, Department of Human Services & Health & Anor

40. The decision upon which the applicant primarily relied was that of the Full Court of the Federal Court in Right to Life Association (NSW) Inc v Secretary, Department of Human Services & Health & Anor [1995] FCA 1060; (1995) 56 FCR 50 which applied the aspect of the Bond decision to which I have just referred. The Right to Life case was an appeal from a decision of Lindgren J which answered questions that were postulated in that case concerning what was said to be a decision of the respondent Secretary of the Department of Human Services and Health to not take action to stop the clinical trial of a drug which the appellant association asserted was capable of procuring abortions. The first question, decided adversely to the appellant, was that it was not a person aggrieved within the meaning of the Administrative Decisions (Judicial Review) Act 1977 (Cth). It was not strictly necessary to answer the second question as to whether there was a "decision", within the meaning of that Act, nor the third question concerning whether there was a positive obligation on the Secretary to investigate breaches of State laws in the event of there being such a decision.

41. The proceedings arose because Schedule 5A of the regulations under the Therapeutic Goods Act 1989 (Cth) provided that the use of the drug in question was subject to conditions which included -

The Secretary must not at any time:

(i) have become aware that to conduct or continue the trial would be contrary to the public interest; and

(ii) have directed that the trial not be conducted or be stopped.

The appellant had placed material before the Secretary particularly directed towards the issue of whether the trials which might cause abortions were contrary to State laws. The Secretary responded by letter in which he declared that what had been put before him "raised nothing which would warrant my acting to stop the trials".

42. A majority of the Federal Court, Lockhart and Beaumont JJ, were of the opinion that the Secretary had refused to do a relevant act or thing and that this constituted a reviewable decision. Lockhart J said (at 62) -

In the present case, the appellant brought various matters to the attention of the Secretary bearing upon the question of the legality under State law of the conduct or continuation of the trials with respect to the drug mifepristone. The Secretary regarded them as relevant and reached a conclusion in my view that he would not give a direction under condition (e)(ii) to stop the trials. That is the sensible and practical analysis of the Secretary's letter received on 31 August 1994. If the Secretary had reached the opposite conclusion, namely, that to continue the trials would be contrary to the public interest and that a direction should be given to stop them, and thereupon gave that direction, surely that must be a reviewable decision under the ADJR Act. The sponsor would clearly be a person aggrieved and would in my view be entitled to seek a review of the decision under the ADJR Act. Why should the position be different if the Secretary reaches the opposite conclusion, as he did in this case? The answer does not lie in my opinion in the mere form of condition (e)(i) as to absence of awareness on the part of the Secretary and the absence of a direction under condition (e)(ii). By saying in the letter received on 31 August that "I have been presented with no evidence that this condition is not being met" (3rd par, last sentence) and "You have raised nothing which would warrant my acting to stop the trials" (4th par, last sentence), he made a decision refusing to give a direction under condition (e)(ii) of Item 3. In the ADJR Act, a reference to the making of a decision includes a reference to doing or refusing to do a relevant act or thing (ADJR Act, s 3(2)(a), (b) and (g)). It was a decision which had "the character or quality of finality"; it was an ultimate or operative decision: Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 per Mason CJ at 336 and 338. See also General Newspapers Pty Ltd v Telstra Corporation [(1993) [1993] FCA 473; 45 FCR 164] at 170 per Davies and Einfeld JJ.

Although par (e) is in form expressed as a condition, it clearly confers upon the Secretary the power, in certain circumstances, to direct that a trial not be conducted or stopped. I agree with Lindgren J that a decision to exercise that power would be a "decision" within the meaning of the AD(JR) Act. That is not, of course, the present case. No such decision was made here. But again I agree with the primary judge that a final refusal to give such a direction also constituted such a "decision". There can be no doubt that in its letter dated 16 August 1994, Right to Life requested such direction. The reply dated 31 August made it clear that it had been decided not to give it. That decision was not expressed to be provisional only or to be otherwise qualified. It was a final and ultimate decision not to give the direction.

43. This case must be understood in the context of the questions that Lockhart and Beaumont JJ were considering. Lindgren J had decided that the appellant was not a "person aggrieved". That decision was also upheld by Lockhart and Beaumont JJ. The question concerning whether there was a "decision" that they were considering was essentially hypothetical. Lindgren J had acknowledged this in delivering a separate judgment on the standing question. His answer was predicated upon an hypothesis that the decision was reviewable only if the Secretary was actually aware of the circumstance calling for him to act. In his separate judgment in respect of matters in Right to Life Association (NSW) Inc v The Secretary of the Commonwealth Department of Human Services and Health and Anor (1994) 36 ALD 264, Lindgren J said at [20-22]-

I have previously held that the applicant lacks standing to apply. I hold later in these Reasons that the Secretary is not obliged "to investigate possible breaches of State law". I have just expressed the opinion that it is only if the Secretary becomes actually aware that it would definitely be contrary to the public interest for the clinical trials to continue, that there would be an occasion for him to decide whether to direct under sub-paragraph (e)(ii) that the trials be stopped.

In the light of all this, the giving of an answer to question 2 [was there a "decision" by the Secretary within the meaning of s 5 of the ADJR Act ...] has proved to be of questionable utility. It is difficult to imagine how, in the absence of any admission by the Secretary or proof of bad faith on his part, it could ever be established that on 31 August 1994 he was aware that to continue the trials was contrary to the public interest, and so was entitled on that date to decide to stop them.

Notwithstanding the matters to which I have just referred, question 2 must be approached on the hypotheses that on a final hearing it is established that the Secretary was so aware and was so entitled on 31 August 1994, and that the applicant is a "person aggrieved" for the purpose of s 5 of the AD(JR) Act. Once this approach to question 2 is taken, that question becomes a narrow one and much of the difficulty touching it disappears [my emphasis added].

44. It is the aspect, which I have emphasised, that distinguishes what Lockhart and Beaumont JJ say from the situation in this case. The assumption cannot be made in the present case that the first respondent identified, or entertained a doubt. The hypothetical assumption made by the judge at first instance in the Right to Life case that the Secretary was aware that it would be contrary to the public interest for the clinical trial to continue does not mean that a similar hypothetical assumption as to a doubt having arisen should be made in the present case. I shall later discuss what s 475 of the Crimes Act 1900 requires on the part of the decision-maker.

45. Another aspect of the reasoning of Lockhart J also distinguishes the circumstances of that case from the present. He postulated in his decision on the question of standing (Right to Life Association (NSW) Inc v Secretary Department of Human Services & Health & Anor [1995] FCA 1060; (1995) 56 FCR 50 at 62 [42]) that -

If the Secretary had reached the opposite conclusion, namely, that to continue the trials would be contrary to the public interest and that a direction should be given to stop them, and thereupon gave that direction, surely that must be a reviewable decision under the ADJR Act. The sponsor would clearly be a person aggrieved and would be entitled to seek a review of the decision under the ADJR Act. Why should the position be different if the Secretary reaches the opposite conclusion, as he did in this case?

In the circumstances of a s 475 direction, there is no person who might be a "person aggrieved" in that same way. The Federal Court, Whitlam and Gyles JJ, with whom Madgwick J agreed on this point in Director of Public Prosecutions (ACT) v Eastman [2002] FCAFC 209 held that in the particular circumstances of the proposed inquiry, particularly in the possible examination of the processes of the Director's Office and the confidentiality of the conduct of the prosecution which lead to the applicant's conviction, the DPP was "a person aggrieved". That was so in those particular circumstances. However, the giving of a direction under s 475 does not affect a right or interest of a person similar to that of the sponsor of the drug trial in the Right to Life case. Nor generally would such a direction do so. The rhetorical question posed by Lockhart J is inappropriate to the circumstances of the giving of a direction under s 475 of the Crimes Act 1900 which is under consideration in this case.

46. The hypothetical assumption and the process adopted by Lindgren J was noted by Gummow J who dissented from the conclusion on this aspect arrived at by Lockhart and Beaumont JJ. Gummow J agreed with the proposition put by the majority that the Secretary had a power which the enactment authorised. However, he took the view that the nature and scope of the power under consideration led to the conclusion that the Secretary had not made a reviewable decision. He said (at 88-89) -

The primary judge held that where the Secretary has become aware that to conduct or continue the trial would be contrary to the public interest, then the Secretary is "by implication" empowered to direct that the trial not be conducted or be stopped. As I have indicated, I agree with that construction.

His Honour later expressed the point:

`Upon satisfaction of par (e)(i) of Item 3, par (e)(ii) authorises the making of a decision to direct or not to direct that the trials be stopped.'

I would prefer to identify the power of the Secretary as implicit in condition (e), taken as a whole and as a compound concept, and to describe the exercise of the power as contingent upon the Secretary first having become aware that to conduct or continue the trial would be contrary to the public interest.

47. He also noted that Lindgren J had not found that the Secretary had the "actual" awareness that to conduct or continue a trial would be contrary to the public interest. He reasoned (at 90) -

One is returned to the fundamental point that without imputing to the Secretary an awareness which did not exist, it could not be said that the ground had been laid for the exercise of the power to direct that the trials be stopped. If the power was not exercisable at all, then the omission so to do could not, within the meaning of the ADJR Act, involve a refusal to make a decision. Otherwise, the ADJR Act would involve the Court in a process of review in which the complaint was that the decision-maker failed to make a decision in exercise of a power which was, in truth, not open for exercise by the decision-maker [my emphasis added].

48. I consider the reasoning of Gummow J is pertinent to the resolution of the present case but in order to be so, it requires an analysis and consideration of the nature and scope of the power under s 475 of the Crimes Act 1900 (ACT) so as to equate the instance of the exercise of the power with the awareness required of the Secretary in the Right to Life case.

49. In Varley v Attorney-General (NSW) (1987) 8 NSWLR 30, the NSW Court of Appeal, Hope and Samuels JJA, Kirby P dissenting, determined that s 475 of the Crimes Act 1900 (NSW) did not authorise the institution of judicial proceedings for the determination of the claim that the court should direct an inquiry under the section. The NSW section had been amended to take a different form to the corresponding ACT provision which retained it in its original form. The effect was to substitute "Supreme Court" for "a judge of the Supreme Court" but as Hope JA observed, this amendment did not affect the way that the section was to operate (at 46-47) -

The words to which (in their context) most of the argument, quite rightly, has been directed are "of its own motion" in s 475(1). The words in the 1883 Act, and in the 1900 Act until 1970, were "of his own motion", ie, of the judge's own motion. These words stood in strong contrast with the words which applied when the Governor gave the direction, namely, "on the petition of the [prisoner] person convicted, or some person on his behalf". The Governor could not act under the section of his own motion; there had to be a petitioner. When the section was amended in 1970 to substitute the Supreme Court for a judge of the Supreme Court, these words were not overlooked; they were deliberately kept, and amended to substitute "its" for "his". The phrase "of his (or its) own motion" has long been known to the law. It means that the body or person who is empowered to do something in this way acts without a formal application to or before it or him that the act be done. Of course someone may suggest or request the doing of the act, or may bring to notice facts or matters relevant to a decision whether or how to act, but such a person is not an applicant in the formal sense; and if following such a suggestion or request or the receipt of such information, the act is done, it is done upon the body's or person's own motion in the light of the information so received, and not upon the basis of any application.

In the event, he concluded that its pre-1970 form (which is the ACT form under consideration here) did not authorise judicial proceedings being brought to obtain a direction under the section.

50. Hope JA also concluded that the nature and basis for directing an inquiry under the section was an administrative decision. That conclusion was accepted by the High Court in Eastman v Director of Public Prosecutions (supra) at 1146 [124]. He described the nature and basis of its initiation in this way (at 48) -

To initiate an inquiry in the present case, a doubt must arise as to the guilt of the plaintiff. This doubt need not be shown to the satisfaction of the Governor or the Court to be well-founded; that is a matter for the inquiry. To adopt the language of Nagle CJ at CL in Varley v Attorney-General of New South Wales (at 12) [unreported, 19 October 1979], "the section envisages the placing of any material before a Judge of the Supreme Court (Supreme Court Act 1970, s 40) ... or, in a petition, before the Governor ... "which might cause him, for want of a better word `unease' in allowing a conviction to stand". The Court or Governor will then, upon this material, decide (in the case of the Governor presumably upon advice) whether the discretion to direct an inquiry which the section confers should be exercised or not. If an inquiry is directed, the question for consideration and the report by the justice is, in the words of Lee J in his report on the conviction of Alexander McLeod-Lindsay (at 9), "whether the doubt predicated is well founded or not".

It is not until the judge has such an "unease" that the discretion to direct an inquiry arises.

51. I add that s 475 is concerned with not only any doubt but "any doubt or question" which arises. That seems to be a strong indication that the proposition must operate as a state of affairs perceived by the decision-maker (whether it be the judge or the Executive). If that circumstance does not exist, by not being so perceived by the decision-maker, then a precondition for the exercise of the power does not exist. In other words, it is not really accurate to speak of "deciding" upon the existence of a doubt or question, such a circumstance must be perceived by the decision-maker before there can be the occasion to exercise the power to direct.

52. The subjective nature of this precondition would also seem to follow from the remarks of Kirby P in considering the reasons why there should be allowance for an application to the court for a decision to direct an inquiry. In Varley (supra), he said (at 40-41) -

The danger, in the case of the Supreme Court, of leaving the initiation of the direction that commences the inquiry to feelings of disquiet which the judges of the Supreme Court may have at the conclusion of a proceeding in that Court alone or to informal communications received by them afterwards is plain. The judge may disregard his disquiet out of deference to the jury's verdict. Or he may, under the pressure of his duties, ignore or pay insufficient attention to the informal approach. Alternatively, he may initiate the proceedings too readily, simply because some material is placed before him which, without any formal scrutiny, is thought on its face sufficient to initiate the procedures of s 475. In this sense, the person convicted may have his complaint insufficiently considered. That may result either in the peremptory and unexplained refusal to direct the inquiry or, on the other hand, an unfiltered direction that an inquiry take place which more formal consideration of the suggested doubt or question would have restrained.

Those remarks seem to me to reinforce the nature of the precondition for the power to be exercised and to make it clear that there is not in truth a decision or determination of a doubt or question but rather the perception of its existence.

53. In the present case, the applicant placed material before the first respondent by way of "Petition" and then by way of letters and memoranda. The fact that what was put was formalised in this way did not affect the nature of the procedure that the applicant was to undertake for the exercise of an own motion power. It remained a requirement that until the first respondent could himself identify a doubt or question, there was no occasion, as far as he was concerned, for him to exercise the power to direct an inquiry. It follows that I do not accept the submission made by the applicant that simply because consideration was given to the matters placed before the first respondent, that invoked a duty on the first respondent to act in any particular way.

54. The response to the first advice, that the respondent had declined to direct an inquiry under the headings "Evidence of former Winchester murder inquiry detective, Cliff Forster", "Evidence that organised crime committed the murder" and "Forensic evidence of Robert Barnes is unsafe", can properly be characterised as a refusal to direct an inquiry into those matters. However, for the reasons I have set out before the power to direct an inquiry can be invoked, there must be a perceived doubt or question. I am satisfied that the first respondent did not perceive a doubt or question arising in respect of these aspects. Absent there being bad faith on the part of the decision-maker to not give a direction for an inquiry, that did not involve a refusal to make a decision within the meaning of the ADJR Act. I am also satisfied that the actions of the first respondent were not motivated by him acting in bad faith and I consider this aspect in detail in respect of the third advice where such allegations are raised.

55. Accordingly, it is unnecessary to consider the grounds of review advanced by the applicant to challenge the first respondent's actions. Nevertheless, as each of the grounds alleged was the subject of argument before me, I shall refer to them as they were said to apply to this advice.

56. The first advice (of 28 June 2001) related only to the document that the first respondent received from the applicant dated 31 May 2001. The applicant's submission was that this was a "protective application because of the possible imminent repeal of s 475". He put forward the view that he was entitled to be afforded a hearing on the matters raised just as a hearing had been proposed in relation to the aspect concerning the psychiatric reports. As I have said, fundamental to the applicant's submission was that once the application was under consideration, the first respondent was under a duty to consider it in accordance with the principles of natural justice.

57. The passages that I have cited from Varley's case do not support a proposition that there was any duty or obligation to consider the application and that is so irrespective of how the matter came to the attention of the judge. Even more fundamentally, the statute does not appear to me, on its proper construction, to imply that an opportunity be given to hear persons either on the aspect of ascertaining the existence of a doubt or question, or on the question of the exercise of the power. As Mason J (as he then was) said in Kioa & Ors v West & Anor [1985] HCA 81; (1985) 159 CLR 550 at 584 -

Where the decision in question is one for which provision is made by statute, the application and content of the doctrine of natural justice or the duty to act fairly depends on a large extent on the construction of the statute. In Mobil Oil Australia Pty Ltd v Federal Commissioner of Taxation [1963] HCA 41; (1963) 113 CLR 475 at 503-504, Kitto J pointed out that the obligation to give a fair opportunity to parties in controversy to correct or contradict statements prejudicial to their view depends on "the particular statutory framework". What is appropriate in terms of natural justice depends on the circumstances of the case and they will include, inter alia, the nature of the inquiry, the subject-matter, and the rules under which the decision-maker is acting: Reg v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group (1969) 122 CLR 546 at 552-553; National Companies and Securities Commission v News Corporation Ltd [1984] HCA 29; (1984) 156 CLR 296 at 311, 319-321.

58. The procedure initiating an inquiry under s 475 does not concern a decision which affects rights interests or expectations in any direct or immediate way. It can only lead to a report by the judge to the Executive. It is then for the Executive to decide what action, if any, it might take.

59. The way in which the Court of Appeal in Varley's case saw the provision operating is quite contrary to a construction that would require a hearing before the power is exercised. I have no doubt that the inclusion of the words "of his or her own motion" exclude by plain words or necessary intendment the rules of natural justice which might otherwise have required a hearing in the exercise of the power conferred under the enactment (cf Annetts & Anor v McCann & Ors [1990] HCA 57; (1990) 170 CLR 596 at 598; Re Minister for Immigration and Multicultural Affairs: Ex parte Miah (2001) 206 CLR 57).

60. If there was no requirement to afford a hearing, it is not to the point to complain, as the applicant does, that a hearing was proffered in respect of the aspect concerning whether the psychiatric reports raised a doubt or question under s 475 but not in respect of the other matters. The fact that the DPP was involved in the hearing that was proffered does not create an inconsistency of approach, as the applicant maintained, if the procedural fairness aspect of the rules of natural justice do not require a hearing at all. It is entirely for the first respondent to adopt whatever means he determined upon to ascertain the doubt or question and to determine whether or not to direct an inquiry into the matters so ascertained.

61. The applicant complains that the first respondent took an irrelevant consideration into account when he referred to the judgment of the Full Court of the Federal Court in Eastman v The Queen (1997) 76 FCR 9 and the summary of evidence contained therein. In the terms of s 475, and in order to see whether there was doubt, there can be no limitation to the material upon which a decision-maker could have regard. That is implicit in the power to direct an inquiry "of his or her own motion" and the construction given to those words in Varley's case (supra). Moreover, the reasons for the determination by the appeal court of the appeal against the applicant's conviction, is clearly an extremely pertinent consideration. There is no substance in the applicant's contention.

62. Further, the applicant submitted that the first respondent had an obligation to obtain the materials cited by him as supporting his assertion "that organised crime committed the murder". That, it is said, evidences a failure to take a relevant consideration into account or, alternatively, was so unreasonable that no reasonable person would have not inquired. From what I have earlier said, no implication can be drawn from the legislation requiring the first respondent to seek out material. Even if there could be such an implication drawn, the first respondent would have only needed to do so if it can be said to be plainly unreasonable for him to not do so. An unreasonable failure to ascertain relevant facts is limited in the way Wilcox J described in it Prasad v Minister for Immigration and Ethnic Affairs [1985] FCA 47; (1985) 6 FCR 155 at 170 -

It is no part of the duty of the decision-maker to make the applicant's case for him. It is not enough that the court find that the sounder course would have been to make inquiries. But, in a case where it is obvious that material is readily available which is centrally relevant to the decision to be made, it seems to me that to proceed to a decision without making any attempt to obtain that information may properly be described as an exercise of the decision-making power in a manner so unreasonable that no reasonable person would have so exercised it.

63. In the applicant's affidavit in support, he sets out a list of documents which he asserts were documents which could easily have been obtained. Amongst those documents were documents that might well have been relevant to the first respondent's consideration but they were not referred to by the applicant in the matters put before the first respondent nor was there any obvious reason given why they might necessarily be relevant. I am unable to say that it is "obvious" that material was readily available which is centrally relevant to the decision to be made.

64. The first respondent indicated that the "matters referred to add nothing of substance to the evidence in the trial as it was summarised in the judgment of the Federal Court in Eastman v The Queen". That is clearly so as regards the evidence given and the documents marked for identification at the inquest to which the applicant referred in his application. They were materials available to the Federal Court and the issues were considered by that Court in the applicant's appeal reported in (1997) 76 FCR 9 at 61-70 where detailed consideration was given to the claim for public interest immunity that was made in respect of these documents. The documents concerned the possibility of the Mafia having committed the crime with which the applicant was convicted. The Court considered in detail how the documents might have assisted the defence case. The Court concluded (at 67) -

Submissions made before this Court did not demonstrate a rational hypothesis inconsistent with the guilt of the appellant based on information in MFI 23, or otherwise, which could be accepted as reasonable having regard to the evidence led at trial.

No reason was suggested in the material put before the first respondent as to why the matter should be reopened in light of that consideration by the Court.

65. As far as the "evidence" of Mr Forster, an ex-AFP officer, was concerned, that comprised a copy letter (or facsimile) from Mr Boersig to Mr Ian Barker QC a week or so before the applicant's application for special leave to appeal was to be heard by the High Court. The letter suggests that Mr Forster held the view that there had been an inadequate investigation by the police and provides some support for allegations of harassment that the applicant had made during the course of the proceedings and on the appeal. The harassment issue was dealt with by the Federal Court in (1997) 76 FCR 9 at 45-49 and no reason was suggested as to how the consideration that the Federal Court had given to these matters might be affected by what was said in the telephone conversation between Mr Forster and Mr Boersig. The Court concluded in respect of this issue (at 49) -

The evidence is by no means clear, but it would seem that police surveillance ceased in late 1992, some two and one half years before the commencement of the trial. It is not necessary to address the Crown's submission that the appellant's conduct during the course of the trial was deliberately disruptive in the hope that he would thereby obtain some advantage. It is sufficient to say that there is no material that would support the allegation that the conduct of the police in placing the appellant under surveillance between 1989 and 1992 in any way inhibited the appellant in the preparation and conduct of his defence.

66. As far as the allegations might relate to an abuse of process, which was also an issue on the appeal, this matter was also dealt with by the appeal court in this way (at 49) -

The time to raise a complaint of abuse of process was when the matter first came to the attention of the appellant at the trial or, at least, within a reasonably short time thereafter. To raise it for the first time as a ground of appeal serves only, in the circumstances of this case, to weaken, rather than strengthen the integrity of the appellant's claims.

The matters referred to by Mr Forster related to a time before November or early December 1990.

67. The defects in the investigation were always a live issue at the trial and on appeal, and the expression by Mr Boersig that former Detective Forster "does not know whether Mr Eastman committed the murder or not" is relevant to the assessment of the weight to be accorded to this material in considering the perception that the first respondent might have as to whether there was a doubt about the conviction. In the absence of it being demonstrated that these matters could have affected the reasoning of the appeal court, I am certainly not able to say that it was unreasonable for the first defendant to reach the conclusion that he did on this material.

68. A number of other matters were put as going to what the applicant asserted was the unreasonableness of the first respondent not directing an inquiry into the matters put by the applicant. I do not regard the expression by the first respondent that the matters put before him by the applicant "add nothing of substance to the evidence in the trial as summarised in the judgment" of the appeal court as being an irrational reason as asserted by the applicant. Unless the first respondent could be satisfied that matters added substance to those which had been, or were open to be considered, by the Federal Court on the applicant's appeal, it was open to the first respondent to be of the view that the occasion for him to perceive a doubt or question did not arise. It is also said that is was unreasonable of the first respondent not to inquire when Dr Wallace would complete an "exhaustive review" of the evidence of Robert Barnes. I do not agree. In fact, the first respondent later entertained Dr Wallace's later reports. What the first respondent did on those occasions is the subject of separate complaint by the applicant but to not inquire about them on this occasion does not indicate unreasonableness. The applicant's assertion that the first respondent had a preparedness to open his mind to one aspect concerning the applicant's conviction (the fitness to plead) but not others does not, in my view, show unreasonableness, a denial of natural justice or bad faith as the applicant asserts but rather supports the contrary.

69. In the context of establishing that there has been an improper exercise of a power as being so unreasonable that no reasonable person could have so exercised it, the applicant's contentions do not meet the test approved by the Federal Court in Wouters v Deputy Commissioner of Taxation (1988) 20 FCR 342 at 352 -

However, it is another matter to say that a contrary decision was unreasonable in the relevant sense, that is as being "an exercise of a power that is so unreasonable that no reasonable person could have so exercised the power": see s 5(2)(g) of the Administrative Decisions (Judicial Review) Act 1977 (Cth). This ground of invalidity of an administrative decision has been described by Lord Diplock, in Bromley London Borough Council v Greater London Council [1983] 1 AC 768 at 821, as being reserved for "decisions that, looked at objectively, are so devoid of any plausible justification, that no reasonable body of persons could have reached them".

In my view, it was entirely reasonable for the first respondent to proceed to a preliminary hearing for the purpose of ascertaining whether there existed a doubt or question under s 475 in respect of the matter of the applicant's fitness to plead at his trial but to not perceive a doubt or question arising from the other matters to which the applicant had referred. In my opinion, the first respondent's actions are not so devoid of any plausible justification that no reasonable body of persons could have reached them.

70. On 10 August 2001 the applicant, by facsimile, inter alia requested the first respondent to "set up" a s 475 inquiry into the evidence of Robert Barnes and Raymond Webb. He referred to a report of Dr Wallace dated 6 August 2001 which had been given to the court. The report of that date concerned the evidence given by Robert Barnes at the inquest and trial. Attached to the report was a letter or memorandum which concerned the evidence of Raymond Webb given at the reopened inquest and the trial. I have referred in [16] to the circumstances concerning the notification given to the applicant and the letter of 17 August 2001 advising the Attorney-General that the first respondent had declined to direct an inquiry into both those matters. In those circumstances, it would be implicit in what was done that there had been a refusal to direct an inquiry.

71. However, as I have earlier discussed, the nature and scope of the power to direct an inquiry does not require a decision as to whether there is a doubt or question, but rather a perception on the part of the decision-maker of such a circumstance. Without such a perception, it was just not open for the power to be exercised. The only qualification that could be made to this conclusion is if it could be established that the decision-maker was acting in bad faith in the exercise of a statutory power.

72. If a power is exercised in bad faith, it will vitiate that exercise of power. A decision made in bad faith will be a nullity (Anisminic v Foreign Compensation Commission [1968] UKHL 6; [1969] 2 AC 147 at 171 per Lord Reid). There are obvious conceptual difficulties in the non-exercise of a power on this basis. Those difficulties flow from the question of what arises where there is said to be an omission but where there is no duty to exercise the power. That circumstance may require a state of knowledge and intention to harm, or foreseeable risk of harm akin to establishing the tort of misfeasance in public office (cf Northern Territory & Ors v Mengel & Ors (1994-1995) 185 CLR 307 at 347-348) before it can be said that the decision-maker acted in bad faith. Even what might constitute bad faith in the exercise of a statutory power is uncertain. In Smith v East Elloe Rural District Council & Ors [1956] UKHL 2; [1956] AC 736 at 770, Lord Somervell of Harrow observed -

Mala fides is a phrase often used in relation to the exercise of statutory powers. It has never been precisely defined as its effects have happily remained mainly in the region of hypothetical cases. It covers fraud or corruption.

The seriousness of such an allegation and the matters which might constitute it were the subject of this comment by Aronson & Dyer, Judicial Review of Administrative Action, (2nd ed, 2000) at 246-267 -

Fraud, bad faith and improper purpose will all vitiate the exercise of public power. Although most acts or decisions thus vitiated could also be struck down on one or other of the less dramatic grounds of review (the considerations grounds being the most obvious), these grounds exist in their own right, both at common law and under the ADJR Act "Bad motives" have not established a separate niche for themselves, largely because no separate treatment is needed in light of the bad faith or improper purpose grounds.

Taking bad faith first, there are many cases which use the term, but in contexts in which it is clear that dishonesty, fraud, malevolence, spite or other personal motivation are not really being alleged. Wade and Forsyth conclude that bad faith "therefore scarcely has an independent existence as a distinct ground of invalidity". Some judges have urged that the term "bad faith" be confined to cases of personal wrongdoing. There are relatively few allegations of government dishonesty in the area of judicial review. There is a heavy burden of proof [footnotes omitted].

Similarly, De Smith, Woolf and Jowell, Judicial Review of Administrative Action, (5th ed, 1995) at 553 say -

Fundamental to the legitimacy of public decision-making is the principle that official decisions should not be infected with motives such as fraud (or dishonesty), malice or personal self-interest. These motives, which have the effect of distorting or unfairly biasing the decision-maker's approach to the subject of the decision, cause the decision to be taken in bad faith or for an improper purpose (the term "improper" here bearing a connotation of moral impropriety). Some of the decisions based on bad faith will also violate the ground of illegality, as the offending motive may take the decision outside the "four corners" of the authorised power. Irrespective of whether this be so, any ingredient of bad faith may in itself cause a decision to be invalid [footnotes omitted].

73. The applicant certainly made assertions of bad faith. He pointed to the response declining an inquiry in not referring to the matter concerning Raymond Webb and the fact that requests seeking clarification of this matter did not elicit a response. He described this as a "deliberate evasion, intended to make his decision non reviewable under the Act". There are other allegations of unreasonable failure to exercise the power, what were said to be improper purpose and negligent conduct but, in my view, they all fall far short of allegations and particularisation of bad faith that would bear upon the validity of any omission that could be claimed in the exercise of the power in this case (or rather, its non exercise).

74. In the circumstances of this case, allegations which might constitute bad faith sufficient to consider what might be said to be an invalid omission to exercise the power need to be directed to the repository of the power having held the perception that there was a doubt or question and then to have maliciously, dishonestly or from some corrupt or self-interested motive refused to direct an inquiry into that doubt or question. I do not consider that the allegations made by the applicant put at their highest and either taken individually, or together, meet such criteria. I do not consider that there is any evidence at all that the first respondent acted in bad faith and I am satisfied that the only doubt or question that he perceived pertinent to the exercise of the power under s 475 to direct an inquiry was that to which he referred when he directed the inquiry on 7 August 2001.

The grounds of review asserted in respect to the third advice

75. I am unable to discern any lack of procedural fairness in respect of the conduct of the first respondent in dealing with matters giving rise to the third advice. As with the first advice, there was no requirement to afford the applicant a hearing for the reasons that I have given in respect of the first advice.

76. The applicant's further complaint in seeking to justify a review of the first respondent's actions relates to what he asserts, in effect, was the cursory consideration given by the first respondent to the material before him. The material comprised assertions made by Dr Wallace initially on material other than the transcript of the trial and is in effect a commentary on suppositions derived from material that he believed to be reliable. I agree that the first respondent appears to have dealt with the material in a very short space of time. It does not appear that he made any additional inquiries. However, the force of this material in engendering the doubt or question required by s 475 is extremely speculative. It is not based on the transcript of the trial. It is not in the form of an expert opinion challenging another expert's opinion but rather a commentary on the various materials that Dr Wallace had before him. In the case of the observations concerning the evidence of Raymond Webb, it is no more than a commentary on what Dr Wallace assumes to be the evidence. Although it is said that the "information is extracted from the summing up of the re-opened inquest by Mr Cahill on 23rd December 1992 and also from the transcript of the trial", it is clear from the earlier "report" that Dr Wallace had not been able to obtain the transcript of the trial. The material stands or falls on its persuasiveness to engender a doubt or raise a question in the mind of the recipient and on this occasion it did not do so.

77. No reason is put forward as to why the matters that are the subject of Dr Wallace's comments were not put to the Federal Court on the applicant's appeal against his conviction. Nor is it suggested that the matters the subject of Dr Wallace's comments were matters that could not have been adduced on that appeal. On the applicant's appeal (Eastman v The Queen (1997) 76 FCR 9) there was an application to admit an affidavit from Dr Wallace (at 105). The Full Court observed (at 107) -

The affidavit of Dr Wallace does not raise any matter of fresh evidence ... What the affidavit does reveal is that Dr Wallace was available to be called at the trial and was in contact with the appellant's then lawyers although the various messages he received as to his attendance were contradictory.

That is a very pertinent matter affecting the weight to be given to Dr Wallace's views. The Full Court was not prepared to admit Dr Wallace's evidence on the appeal. No reason was advanced to the first respondent as to why Dr Wallace's views should now be considered as his views were available to the applicant both at the time of the trial and on the appeal. Apart from the unpersuasive nature of the material, I consider that the first respondent could quite properly not entertain a doubt or question about that material and to not have regard to what Dr Wallace was now putting forward without some explanation as to why it was not put to the Full Court of the Federal Court on the appeal against the applicant's conviction.

78. I have dealt firstly with the first and third advices that the applicant challenges because the actions of the first respondent may, on one view, be characterised as a refusal to exercise a power, although, as I have said, in having regard to the scope and nature of the power involved here, such a "refusal" is not amenable to review under the ADJR Act. In my view, the actions of the first respondent in respect of the second and fourth advices are of a different character and do not constitute or imply a refusal to exercise the power to direct an inquiry.

79. The applicant challenges the second advice in respect of the scope of the direction given in that it described the matter into which the inquiry was directed as "being the fitness to plead of the applicant during the whole or any part of his trial for the murder of Colin Winchester". In the application of 31 May 2001, the applicant alleged criminal offences against him by the "AFP" with the object of driving him "nuts" and with the intention of diminishing his capacity to defend himself at trial. The respondent's written submissions of 13 July 2001, for the purpose of the preliminary hearing held by the first respondent, also sought to widen the inquiry to question actions of the "Crown" during the inquest and trial.

80. It is clear that the doubt entertained by the first respondent was a doubt as to the applicant's fitness to plead at the trial. It was the trial which resulted in the conviction of the applicant. Any question as to the evidence related to the evidence given at the trial. These are the matters about which the doubt or question must arise for the power to be exercised. The provision in s 428E of the Crimes Act 1900 as it applied prior to the time of the applicant's trial, had application only to the fitness to plead on the trial of a person charged with an indictable offence. There was no reason why the first respondent need take account of the matters suggested by the applicant as having a bearing on this issue insofar as they related to circumstances outside of the trial. If they had an impact on the trial, they would be within the scope of the reference that the first respondent had determined upon.

81. The issue of extending the inquiry in the manner suggested by the applicant was not specifically addressed by the first respondent, nor was there any necessity for him to do so having regard to the doubt that he perceived to exist. To not extend the terms of the inquiry to include the matters requested by the applicant does not constitute a refusal, nor to otherwise constitute a reviewable decision for the purposes of the ADJR Act.

82. In his oral submissions in support of a review of this aspect, the applicant raised the issue of bias. The objection, if made good, would equally apply to the first respondent's actions in respect of each of the advices for it should have the consequence that the first respondent should not make any decision in the matter before him. I do not, however, see that there is any substance in the objection so that it is unnecessary to determine whether the applicant's proceedings should be amended to include this as a ground.

83. To support the claim of bias, the applicant referred to the involvement of the first respondent in earlier proceedings concerning the applicant. As I understand the submission, the applicant says that as the first respondent had been involved in certain directions hearings in connection with the applicant's trial, his own conduct could be under investigation in the investigation. It was also said that comments had been made in these proceedings showing prejudgment of issues that might be relevant to the inquiry which the first respondent had directed. Having regard to the role of the first respondent in the inquiry and the requirement that what is involved on his part is a report on the depositions taken by the Magistrate, there is no substance in the submission.

84. Another matter in respect of which it was said that there could be an apprehension of bias was the circumstance that the first respondent had allowed a preliminary hearing in respect of the matter concerning the effect of the psychiatric reports but not in respect of the other matters that the applicant had raised. I have already dealt with that aspect and, in my view, this circumstance also does not support the allegation made.

85. No direct application was made to the first respondent to disqualify himself for apprehended bias. There is a reference to this matter in a letter of 12 July 2001 that the applicant wrote to the first respondent that enclosed written submissions (subsequently replaced) for the preliminary hearing that the first respondent was to hold. That letter asked the first respondent "to consider your role in this back in 1995" and referred to the mentions where applications were made for adjournment of the trial date on the grounds "that I was TEMPORARILY INCAPABLE OF PROPERLY INSTRUCTING LAWYERS due to AFP harassment [sic]". In any event, no clear application was made at that time and the matter was not raised again in the context of a number of further requests made by the applicant of the first respondent.

... whether a fair minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question [he or she] is required to decide.

(See Johnson v Johnson [2000] HCA 48; (2000) 74 ALJR 1380 at 1382 [11], [2000] HCA 48; 174 ALR 655 at 658 per Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ.) The matters arising from the first respondent's involvement in earlier proceedings were the subject of a ruling by the first respondent some years earlier in R v Eastman (No. 2) (1995) 121 FLR 155 which dealt with a number of matters raised before me concerning the first respondent's involvement in those proceedings. I cannot see, in the matters to which the respondent referred in oral argument, that the test for appearance of bias that I have referred to is made out.

87. There are two other factors. The DPP has, in his submissions, referred to the fact that in proceedings SC389/03 in connection with another application to review the first respondent's conduct, the applicant relied upon a ground that the first respondent was biased, demonstrated by -

(a) His conduct in hearings involving the Applicant in 1992-95

(b) His conduct in making decisions under section 475(1) on

28-6-01, 7-8-01, 17-8-01, and 17-9-01

(c) His conduct since 28-5-03.

The applicant was granted leave to discontinue those proceedings on terms that the applicant not bring any further proceedings in relation to, inter alia, the matters alleged in the ground that I have set out. To allow an amendment to raise the issue of bias on the part of the first respondent in these proceedings would enable the applicant to raise once again the questions that he had expressly abandoned in those proceedings.

88. The other matter relates to the fact that it was the applicant's choice to put these issues before the first respondent. Although that may not strictly constitute a waiver of his right to now be heard to complain about apprehended bias, it cannot be said that clear objection was taken to the first respondent continuing to act in the matter (as to waiver, see Vakauta v Kelly (1989) 107 CLR 568). No objection in any form was taken in respect of the advice which preceded this second advice nor in respect of the first respondent considering the additional matters that the applicant subsequently put to the first respondent and formed the basis for the third and fourth advices. There is, in my view, plainly no substance in this challenge on the ground of bias.

89. After the Registrar notified the applicant by letter dated 17 August 2001 that Dr Wallace's report did not raise a doubt or question sufficient to direct an inquiry, the applicant, by a document dated 27 August 2001, referred to two further reports from Dr Wallace dated 15 August 2001 and 20 August 2001. The first of those documents is addressed to the first respondent and to the third respondent and deals with a portion of the transcript at the trial compared to a description of Mr Barnes' evidence in the coroner's summing up at the Inquest. The second document makes further submissions concerning the evidence of Mr Barnes. The applicant's written submissions were highly critical of the first respondent's actions in sending Dr Wallace's report to the Attorney-General for forwarding to the National Institute of Forensic Science. At the least, he sought "a public threshold inquiry" into the issue. On 17 September 2001, the Registrar advised the applicant that the document had been forwarded to the Attorney-General. On 22 September 2001 the applicant wrote complaining that this advice did not constitute a reply to his application and dealt with the matter in an inconsistent way.

90. From these events, the applicant says that this evidences a refusal to give a direction under s 475. I do not consider that these circumstances give rise to that implication. The first respondent had not perceived a doubt or question arising from the submissions put by Dr Wallace. His dealing with those submissions was not reviewable. He was now being asked to regard Dr Wallace's additional submissions and comments on the basis that it was "evidence which strengthens even more the case for widening the present restrictive terms of reference of the Section 475 Inquiry". Yet the first respondent had, at least impliedly, refused this application. It is clear he did not propose to further consider the matter but rather passed the matter to the representative of the other body, the Executive, which had the power to act in the matter. It was open to him to do this, he was under no duty to further consider the matter. I do not accept the applicant's contention that this was to avoid making a reviewable decision. That could only be so if the "decision" was in fact reviewable and I am satisfied that it was not. I am also of the view that it was entirely a matter for the first respondent how he chose to deal with the applicant's additional material after the applicant was advised that the earlier material did not raise a doubt or question sufficient for the first respondent to direct an inquiry into those matters. He clearly chose to not further consider the matter and, in my view, his action in doing so is not reviewable.

91. The applications for orders of review in respect of the decisions of the first respondent are dismissed. The applications for orders of review in respect of the decisions of the second respondent are stayed.

92. For the purpose of determining this matter, I have not needed to rule on the applicant's submission that the Director of Public Prosecutions is not a proper party to these proceedings. When proceedings were first commenced against the first respondent for review under the ADJR Act, an application was made by the DPP to be joined as a party. The Attorney-General intervened in the proceedings on behalf of the Territory pursuant to s 19 of the ADJR Act as the Minister administering the Act. It would have been inappropriate for the first respondent to be a protagonist in these proceedings (see R v Australian Broadcasting Tribunal & Ors ex parte Hardiman & Ors [1980] HCA 13; (1980) 144 CLR 13 at 35), but the Attorney-General was an appropriate contradictor. In these circumstances, s 19(3)(b) of the ADJR Act requires the Attorney-General to be taken as a party to the proceedings.

93. Although the Full Court of the Federal Court in Director of Public Prosecutions (ACT) v Eastman [2002] FCAFC 209 (supra) decided that the DPP was a "person aggrieved" and had the power to challenge the decision under s 475 of the Crimes Act 1900 to direct an inquiry into the applicant's fitness to plead, a number of the circumstances relied upon to reach that conclusion are not necessarily applicable to this present application. In any event, I consider that there is force in the observations of Morling J in Kaycliff v Australian Broadcasting Tribunal (1989) 19 ALD 315 at 317 -

In the absence of special circumstances, I think that where proceedings under the Judicial Review Act are competent in the sense that all persons against whom relief is sought are made respondents, the general rule should be that an additional respondent who is joined at his own request ought not to receive his costs if the application fails.

94. I appreciate the assistance that has been provided by the DPP in this matter, particularly in satisfying the applicant's requests for material associated with the trial and inquest being provided to him and to the court, but I do not consider that sufficient reason to depart from the general rule referred to by Morling J so as to order that the applicant pay the third respondent's costs. However, at the present time, I do not see any good reason why I should not order the applicant to pay the fourth respondent's costs.

95. Before I make any formal orders with respect to costs, I will permit the parties to file, if they are so advised, written submissions on the question of costs within 14 days hereof and to respond in writing to any submissions that are made within seven days after that date.

I certify that the preceding ninety five (95) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Gray.

Solicitor for the first respondent: Registrar, Supreme Court of the ACT

Solicitor for the second respondent: ACT Government Solicitor

Solicitor for the third respondent: Director of Public Prosecutions (ACT)

Solicitor for the fourth respondent: ACT Government Solicitor

Date of hearing: 27 August, 28 August, 29 August and