Application for writ of certiorari - Issue of a subpoena an administrative function as opposed to a judicial function - Applicant seeking to challenge decision of a Warden - Improper to use process of subpoena to replace discovery - Applicant has established an arguable case so that the order nisi should issue

Mining Act 1978

Grollo v Palmer [1995] HCA 26; (1995) 184 CLR 348

Love v Attorney-General (NSW) (1990) 169 CLR 307

Re Burton; ex parte Roberts (1997) 18 WAR 379

Senior v Holdsworth; ex parte Independent Television News Ltd [1976] QB 23

1 SCOTT J: This is an application for a writ of certiorari addressed to the Stipendiary Magistrate conducting the Warden's Court at Perth in relation to a decision made by him to set aside a subpoena. The basis of the Warden's decision was that as the issue of the subpoena was an administrative function and as he was acting in an administrative capacity and not judicially, there was no capacity to enforce the subpoena in any event and as a consequence he made the decision to discharge it.

2 The application is for the learned Magistrate to show cause before the Full Court why a writ of certiorari should not be issued, quashing the decision made by his Worship on 6 January 2000 to discharge the subpoena. The application is made on the ground that the learned Magistrate erred in the purported exercise of his jurisdiction under the Mining Act 1978 by finding that he did not have power to issue a subpoena because he was not exercising the powers of a warden in the Warden's Court and that he did not have power to discharge the subpoena.

3 In order to understand the way in which this application is brought, it is necessary to examine some of the background to the application.

4 In an earlier application for a writ of certiorari, Re His Worship Mr Calder SM; ex parte Gardner [1999] WASCA 28, the Full Court had occasion to examine the issue as to whether an order for discovery of documents was appropriate in the Warden's Court. In that case, Ipp J (with whom Pidgeon J agreed) held that the Warden, when sitting in open court, was acting in an administrative capacity when dealing with applications of the type which excite the exercise of recommendatory powers. As a consequence, the court was of the view that there was no power to make an order for discovery of documents.

5 The matter was relisted before the Warden and the applicant sought to obtain the same documents by way of a subpoena duces tecum to compel production of the documents which the application for discovery of documents had sought to uncover.

6 When the subpoena was returned in the Warden's Court, it seems from the transcript of 6 January 2000 that an application was made to set the subpoena aside. In his decision on that issue, the Warden held:

"The only provision within the Mining Act or regulations as to the issue of subpoenas is within reg 127. In my view the provisions of Part VII of the regulations specifically refer to the Warden's Court as opposed to the Warden in open court. The effect of these proceedings being in the open is the Warden's (sic) powers of enforcement are limited, there is no power of contempt of court, in my view, in the event of a failure to comply no power to compel questioning, questions to be answered.

Whilst the issue of the subpoena is an administrative function, in my view it (sic) requires administrative foundation which simply in my view does not exist in the present legislation. Whilst I may well appreciate the plaintiff's frustration at that fact, to allow the subpoena to remain, which there is simply no power to issue in my view, is inappropriate. Whilst I have said inherent jurisdiction is a last resort, it is appropriate now in my view to determine the issue to prevent the unfortunate situation with Mr Elias being put in an almost impossible position come the trial date.

Given my view there is simply no compunction on him to comply for better or for worse in my view it's better - - appropriate for this Court in this jurisdiction to discharge the subpoena".

7 As can be seen from the terms of the application set out earlier in these reasons, senior counsel for the applicant seeks to challenge the decision of the Warden in the Full Court. Senior counsel for the respondent, on the other hand, argues that this is an abuse of process in that the applicant, being dissatisfied with the earlier decision of the Full Court, wishes to re-argue the point in order to have the matter determined afresh.

8 In State Rail Authority of New South Wales v Codelfa Construction Pty Ltd [1982] HCA 51; (1981) 150 CLR 29, the court had occasion to consider a similar matter where an earlier decision was under challenge and held in the judgment of Mason and Wilson JJ at 38:

"Nevertheless, it is a power to be exercised with great caution. There may be little difficulty in a case where the orders have not been perfected and some mistake or misprision is disclosed. But in other cases it will be a case of weighing what would otherwise be irremediable injustice against the public interest in maintaining the finality of litigation. The circumstances that will justify a rehearing must be quite exceptional."

"Although this Court can no longer be constituted as it was constituted when its orders were made, there is, in my opinion, jurisdiction to recall the order remitting the relevant issues if appropriate grounds are shown. That jurisdiction inheres in this Court as a final court of appeal to prevent irremediable injustice being done by a Court of last resort, but the occasions of its exercise must be rare indeed."

10 There have been many decisions to the effect that it is improper to use the process of subpoena to replace that of discovery (Commissioner for Railways v Small (1938) 38 SR (NSW) 564 at 575). Further, in Finnie v Dalglish (1982) 1 NSWLR 400, Rath J held at 405:

"It will be noticed that a subpoena used for the purpose of discovery will be set aside, whether it is addressed to a stranger or a party. In either case the ground for setting the subpoena aside is oppressiveness, but the oppression arises in different ways."

11 His Honour went on to consider the different ways in which that oppression could arise and referred to the use of the subpoena duces tecum for that purpose.

12 It is not necessary to examine the authorities in greater detail at this stage of these proceedings. This is an application for an order nisi and if granted the matter will be fully argued when the order nisi, is returned before the Full Court.

13 Whilst I consider that it is arguable that the approach to the case adopted by the applicant is an abuse of process of the Warden's Court and it is also arguable that the applicant is seeking to challenge the earlier decision of the Full Court in relation to the question of discovery, nonetheless I am unable to conclude that the applicant does not have an arguable case: Re Capobianco; ex parte Castelli, unreported; SCt of WA (Parker J); Library No 980567; 25 September 1998; Perpetual Trustees WA Ltd v City of Joondalup, unreported; SCt of WA (McKechnie J); Library No 990195; 16 April 1999 and the other authorities referred by Seaman J in "Civil Procedure Western Australia" under the commentary on O 56 r 1.1.

14 If it be the case that the application is without merit and if it is held to be an abuse of the process of the court, no doubt the Full Court can remedy the situation by an appropriate order for costs. That is not, however, a matter that falls for determination at this stage of these proceedings.

15 As I have already said, whether the Warden was acting in an administrative capacity or judicially in my view would not necessarily determine whether a subpoena could issue from the court, nor whether when a subpoena has issued, it could be set aside. That, as a separate question, may also need to be resolved in this application.

16 It follows, in my opinion that the applicant has established an arguable case so that the order nisi should issue.

17 I will hear the parties as to any consequential orders particularly in relation to the proceedings now pending in the Warden's Court so as to give effect to these reasons.