Folbigg v Attorney General of New South Wales

Effect of amending legislation

1. An inquiry pursuant to Pt 7 of the Appeal and Review Act must be conducted by a "judicial officer", as defined in the Judicial Officers Act 1986 (NSW). However, s 74 of the Appeal and Review Act expressly includes a "former judicial officer". The judicial officer was appointed to conduct the Inquiry in August 2018. At that time, the Hon Reginald Blanch was a former judicial officer, being a retired justice of the Supreme Court and former Chief Judge of the District Court of New South Wales. The findings and report of the inquiry were provided to the Governor in July 2019. The present proceedings for judicial review, invoking the supervisory jurisdiction of the court pursuant to s 69 of the Supreme Court Act 1970 (NSW), were commenced on 21 October 2019.
2. Pursuant to s 49 of the Supreme Court Act, proceedings in the Court which are not assigned to the Court of Appeal are assigned to the Divisions of the Court. Pursuant to a somewhat tortuous set of provisions in s 53 of the Supreme Court Act and the Fourth Schedule to the Act, proceedings in the supervisory jurisdiction, not assigned to the Court of Appeal, are assigned to the Common Law Division. In October 2019 these proceedings were correctly commenced in the Common Law Division. At that time, only proceedings in the supervisory jurisdiction assigned to the Court of Appeal were those seeking relief against decisions of a "specified tribunal", which included the District Court, and any "judge or member" thereof, and a judge of the Supreme Court. [2]
3. On one view, it might have been considered inappropriate for a judge sitting in the Division to be reviewing a decision or findings of a former judge acting in a non-judicial capacity. Consideration was given to that issue at a directions hearing held on 15 September 2020. The Court raised the possibility of the matter being transferred to the Court of Appeal. However, neither active party (being the plaintiff and the Attorney) sought such a referral; indeed, counsel for the Attorney cast doubt upon the power of a judge in the Division to refer the matter to the Court of Appeal. No further step was taken to do so at that stage.
4. However, within two weeks of that directions hearing the legislative scheme changed. On 28 September 2020, s 48(1) of the Supreme Court Act was amended to include a person who "has been" a judge (that is, of the Supreme Court) or a judge of a specified tribunal. [3] From that date, there was no doubt that the Court of Appeal was the proper forum for the determination of an application to review a decision of a former judicial officer. There remained a question, however, as to whether the amending legislation applied to proceedings which had already been commenced. This issue was addressed at a further directions hearing on 9 October 2020.
5. The amending legislation contained no transitional provisions which might have resolved that issue. Counsel for the Attorney submitted that the issue was to be resolved by asking whether the legislation affected any accrued right, within the meaning of s 30(1)(c) of the Interpretation Act 1987 (NSW). While it should be presumed that Parliament did not intend retrospectively to interfere with accrued rights, this legislation did not do that. Rather, the amendment was, the Attorney submitted, entirely procedural, merely determining the forum in which existing rights could be addressed. The Attorney relied on the following passage from the judgment of the High Court in Rodway v The Queen: [4] "But ordinarily an amendment to the practice or procedure of a court, including the admissibility of evidence and the effect to be given to evidence, will not operate retrospectively so as to impair any existing right. It may govern the way in which the right is to be enforced or vindicated, but that does not bring it within the presumption against retrospectivity. A person who commits a crime does not have a right to be tried in any particular way; merely a right to be tried according to the practice and procedure prevailing at the time of trial."
6. Rodway involved the repeal of a Tasmanian law preventing conviction on the uncorroborated evidence of a complainant in certain offences, including "defilement" of a girl under 17 years of age and indecent assault of a female. That provision was repealed after the offences were committed and the accused charged. The trial commenced after the amendment. The Court held that the amending legislation applied.
7. In accordance with this reasoning, the Attorney submitted that the plaintiff had no accrued right with respect to the forum in which her proceeding was to be determined.
8. Apart from a number of directions hearings which have taken place in the Division, the substantive hearing of the plaintiff's application has not commenced. (It is not necessary to consider the operation of the amendment had that occurred.) The only legal effect of removing the matter to the Court of Appeal at this stage would be to preclude the availability of an appeal to whichever party was unsuccessful in the Division. However, as both parties accepted, no such right of appeal had yet accrued; the procedural right was contingent upon the determination of the proceedings and had not yet crystallised. Nevertheless, the plaintiff submitted that if there were a discretion to be exercised, it should be exercised in favour of allowing the availability of an appeal to either party following the hearing of the summons.
9. On the assumption that the amending legislation applied to the present proceeding, the Attorney accepted there was nevertheless a discretionary decision to be made as to where the matter should proceed. That followed from s 51(1) of the Supreme Court Act: 51 Removal and remission (1) Where proceedings are commenced in a Division but are, under this or any other Act or under the rules, assigned to the Court of Appeal - (a) the proceedings shall be for all purposes well commenced on the date of commencement in the Division, notwithstanding that the proceedings are assigned to the Court of Appeal, (b) the Court of Appeal or the Court in the Division in which the proceedings are pending may, in either case on application by a party or of its own motion, order that the proceedings be removed into the Court of Appeal, (c) upon an order for removal being made under paragraph (b), the proceedings may be continued and disposed of in the Court of Appeal, and (d) subject to any order under paragraph (b) the proceedings may be continued and disposed of in a Division.
10. So far as discretionary considerations were concerned, the plaintiff relied not merely upon the prospective right of appeal, but also upon the desirability of preserving the hearing dates which had already been fixed for February 2021.

Determining the appropriate forum

1. In determining the appropriate directions to be given, it is important to apply Pt 6 of the Civil Procedure Act 2005 (NSW), mandating that the court have regard to the overriding purpose of facilitating the just, quick and cheap resolution of the real issues in the proceedings. [5] A relevant consideration is undoubtedly the avoidance of unnecessary delay in the resolution of the proceedings. In so far as that factor is concerned, it gives force to the plaintiff's concern that existing hearing dates not be vacated.
2. It was with this in mind that no immediate ruling was made at the directions hearing on 9 October. Since then it has been possible to confirm that the dates fixed in February would remain available if the matter were to be heard by the Court of Appeal.
3. The second matter involves the resolution of the proceedings in the Court of Appeal, without first having a trial, allowing a party disaffected by the result to appeal to the Court of Appeal.
4. On one view, the overriding purpose would militate in favour of referring the matter directly to the Court of Appeal. The delay and expense of two hearings would thus be avoided. On the other hand, the Court of Appeal would not have the benefit of a reasoned judgment in the Division which might, in any event, reduce the number of issues to be addressed if there were to be an appeal.
5. On the other hand, while there may be a prospect of an appeal, it should not be assumed that an appeal would eventuate whatever the outcome; accordingly resolution in the Division might be a more attractive course. It is a course which would require fewer resources from the Court and thus would interfere less with the rights of other litigants to expeditious resolution of their cases.
6. While these factors are all significant, the key issue which militates in favour of the matter being resolved in the Court of Appeal is the nature of the proceeding. It is not a trial at first instance; it is the review of what has already been a lengthy Inquiry, resulting in a report which has similar effects to a judgment at first instance. The witnesses have been heard and their evidence has been assessed; inferences have been drawn and detailed reasons provided. The limited nature of proceedings by way of judicial review bears many of the characteristics of an appeal on a question of law. It is therefore an appropriate matter to be dealt with by the Court of Appeal.
7. Further, within an hierarchical judicial system, there is a degree of consistency in requiring that review of decisions of former judges of the court, as with decisions in an administrative capacity of existing judges, should be dealt with in the Court of Appeal.
8. Finally, there is the subject matter of the proceeding. An Inquiry under Pt 7 of the Appeal and Review Act is not the final determination of the rights of the applicant for review. She is a person who has been convicted of serious criminal offences, but who has exhausted her rights of appeal at law. The power to seek an administrative review of convictions and sentences either by application to the Supreme Court pursuant to s 78 of the Appeal and Review Act, or by petition to the Governor pursuant to s 76, is designed to provide a safety net to ensure, so far as practicable, that no injustice has occurred, despite the exhaustion of the legal process, including appeal rights. While it is true that both a petition and an application may be refused on the grounds that they have previously been dealt with, there is no constraint on the right of a dissatisfied individual to make a further petition or application, and in particular could expect consideration to be given to it if there were fresh material to be addressed.

Orders

1. For these reasons, it is not appropriate to leave this matter in the Division. Accordingly, the court gives the following directions: 1. Pursuant to s 51(1)(b) of the Supreme Court Act, direct that these proceedings be removed into the Court of Appeal. 2. Existing directions for the future conduct of the matter shall continue to operate. 3. The matter is fixed for hearing in the Court of Appeal for four days commencing on 15 February 2021. 4. The costs of the proceedings in the Division shall be costs in the proceedings in the Court of Appeal.

Endnotes

1. See R v Folbigg [2005] NSWCCA 23; 152 A Crim R 35 at [7].
2. Supreme Court Act, s 48(1)(a)(vi) and (b).
3. Stronger Communities Legislation Amendment (Courts and Civil) Act 2020 (NSW), Sch 1, cl 1.13, item [1].
4. (1990) 169 CLR 515; [1990] HCA 19 (Mason CJ, Dawson, Toohey, Gaudron and McHugh JJ).
5. Civil Procedure Act, s 56(1). 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: 15 October 2020