[2020] FCAFC 180
Baker v The Queen (2004) 223 CLR 513
[2004] HCA 45
Buttrose v Attorney General (NSW) (2015) 324 ALR 562
Source
Original judgment source is linked above.
Catchwords
[2017] NSWCA 17
Attorney-General (Cth) v Huynh (2023) 97 ALJR 298[2023] HCA 13
Attorney-General (Cth) v Ogawa (2020) 281 FCR 1[2020] FCAFC 180
Baker v The Queen (2004) 223 CLR 513[2004] HCA 45
Buttrose v Attorney General (NSW) (2015) 324 ALR 562[2015] NSWCA 221
Clark v Attorney General (NSW) [2020] NSWCA 70
Cranney v RHuynh v R (2017) 269 A Crim R 449[2017] NSWCCA 234
Eastman v Besanko (2010) 244 FLR 262[2010] ACTCA 15
GAR v Attorney General (NSW) (No 2) [2017] NSWCA 314
Griffith University v Tang (2005) 221 CLR 99[2005] HCA 7
Henry v Hancock [2016] NSWSC 71
Holzinger v Attorney-General (Qld) (2020) 5 QR 314[2020] QCA 165
Hopkins v Governor-General of Australia (2013) 280 FLR 49[2013] NSWCA 365
Huynh v Attorney General (NSW) (2021) 107 NSWLR 75[1983] FCA 254
Lodhi v Attorney General (NSW) (2013) 241 A Crim R 477[2013] NSWCA 433
Martens v The Commonwealth (2009) 174 FCR 114[2009] FCA 207
ML v Australian Securities and Investments Commission (2013) 276 FLR 14[2008] HCA 14
Patsalis v Attorney General (NSW) (2013) 85 NSWLR 463
[2013] NSWCA 343
R v Cranney
R v Huynh [2015] NSWDC 276
R v Gee (2003) 212 CLR 230
[2003] HCA 12
R v Murray and Cormie (1916) 22 CLR 437
[1916] HCA 58
Re Grinter
Ex parte Hall (2004) 28 WAR 427
Judgment (10 paragraphs)
[1]
[2013] NSWCA 365
Huynh v Attorney General (NSW) (2021) 107 NSWLR 75; [2021] NSWCA 297
Huynh v R [2022] NSWCCA 45
Huynh v The Queen [2019] HCASL 6
Jin Niu Investments Pty Ltd v Wang [2019] NSWSC 1697
Lamb v Moss (1983) 49 ALR 533; [1983] FCA 254
Lodhi v Attorney General (NSW) (2013) 241 A Crim R 477; [2013] NSWCA 433
Martens v The Commonwealth (2009) 174 FCR 114; [2009] FCA 207
ML v Australian Securities and Investments Commission (2013) 276 FLR 14; [2013] NSWCA 109
Montgomery v Porter [2019] NSWSC 1524
Moore v Commonwealth Director of Public Prosecutions [2023] NSWCA 153
O'Donoghue v Ireland (2008) 234 CLR 599; [2008] HCA 14
Patsalis v Attorney General (NSW) (2013) 85 NSWLR 463; [2013] NSWCA 343
R v Cranney; R v Huynh [2015] NSWDC 276
R v Gee (2003) 212 CLR 230; [2003] HCA 12
R v Murray and Cormie (1916) 22 CLR 437; [1916] HCA 58
Re Grinter; Ex parte Hall (2004) 28 WAR 427; [2004] WASCA 79
Sallway (in their capacity as liquidators of MB Australia Pty Ltd) v Citadel Group Properties Pty Ltd [2021] NSWSC 709
Sinkovich v Attorney General (NSW) (2013) 85 NSWLR 783; [2013] NSWCA 383
Varley v Attorney General (NSW) (1987) 8 NSWLR 30
Category: Procedural rulings
Parties: Mr Huy Huynh (Applicant)
Attorney General of New South Wales (First Respondent)
Attorney-General of the Commonwealth of Australia (Second Respondent)
Supreme Court of New South Wales (Third Respondent)
Representation: Counsel:
[2]
Self-represented (Applicant)
Z C F Heger with S Gerber (First Respondent)
C Horan KC with T Glover (Second Respondent)
K P Tang (Amicus Curiae)
[3]
Crown Solicitor's Office (NSW) (First Respondent)
Australian Government Solicitor (Second Respondent)
File Number(s): 2021/15614
Publication restriction: N/A
Decision under review Court or tribunal: Supreme Court of New South Wales
Jurisdiction: Common Law - Criminal
Citation: [2020] NSWSC 1356
Date of Decision: 13 October 2020
Before: Garling J
File Number(s): 2020/86959
[4]
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
[5]
HEADNOTE
[This headnote is not to be read as part of the judgment]
On 9 June 2015, following a jury trial in the District Court, Mr Huy Huynh (the Applicant) was convicted of an offence of conspiracy to import a commercial quantity of a border-controlled precursor (pseudoephedrine) with the intention that the substance would be used to manufacture a controlled drug, pursuant to ss 11.5(1) and 307.11(1) of the Criminal Code Act 1995 (Cth).
After exhausting all other available avenues for appeal, the Applicant lodged an application for a post-appeal inquiry pursuant to ss 78 and 79 of the Crimes (Appeal and Review) Act 2001 (NSW) (CAR Act). On 13 October 2020, Garling J dismissed that application. The Applicant then commenced proceedings in the Court Appeal under s 69 of the Supreme Court Act 1970 (NSW) (Supreme Court Act) seeking an order quashing the primary judge's decision and a declaration that it was affected by errors of law and jurisdiction. He later filed a Further Amended Summons seeking relief pursuant to either the inherent jurisdiction of the Court, ss 65, 69 or 101 of the Supreme Court Act, s 39(2) of the Judiciary Act 1903 (Cth) (Judiciary Act) or s 5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act). This application was dismissed with a majority holding that ss 78 and 79 of the CAR Act did not apply to federal offences: Huynh v Attorney General (NSW) (2021) 107 NSWLR 75.
On appeal, a majority of the High Court, held that ss 78(1) and 79(1)(b) (but not s 79(1)(a)) of the CAR Act were "picked up" and applied as surrogate federal laws by s 68(1) of the Judiciary Act. It followed that the primary judge's decision to dismiss Mr Huynh's application for a post-appeal inquiry was made under a law of the Commonwealth. The High Court then made orders remitting the matter to the Court of Appeal for determination of the substance of the Applicant's application for judicial review: Attorney-General (Cth) v Huynh [2023] 97 ALJR 298.
On 14 June 2023, the Applicant filed an Amended Summons seeking that the decision of the primary judge be quashed, a declaration that the primary judge's decision was affected by jurisdictional error and that the matter, pursuant to s 78(1)(b) of the CAR Act, be referred to the CCA. The Applicant no longer sought relief under the ADJR Act.
On remittal, a threshold jurisdictional issue arose concerning whether:
1. the remitted judicial review proceedings involved a "special federal matter" within the meaning of the Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth) (Cross-vesting Act), such that they were, subject to s 6(3), required to be transferred to the Federal Court (the special federal matter issue); and
2. if so, whether pursuant to s 6(3) of the Cross-vesting Act, there were "special reasons" to make an order that the proceedings be determined by the Court of Appeal (the special reasons issue).
A special federal matter is defined by s 3(1) of the Cross-vesting Act as including:
"(c) a matter arising under the [ADJR Act]; or
(e) a matter that is within the original jurisdiction of the Federal Court by virtue of section 39B of the [Judiciary Act].
being a matter in respect of which the Supreme Court of a State or Territory would not, apart from this Act, have jurisdiction."
Pursuant to s 39B(1A)(c) of the Judiciary Act, matters that are within the original jurisdiction of the Federal Court include matters "arising under any laws made by the Parliament".
The Court held (Bell CJ, Kirk JA and Simpson AJA agreeing) that, pursuant to s 6(3) of the Cross-vesting Act, the application for judicial review should be determined by the Court of Appeal and not transferred to the Federal Court:
As to the special federal matter issue
1. Two issues are raised by the definition "special federal matter": whether the matter falls within one of the categories relied upon and, if so, whether the Supreme Court would only have jurisdiction under the Cross-Vesting Act. The first issue can readily be addressed by reference to s 3(1)(e), which was satisfied here as jurisdiction arose under a law made by the federal Parliament, namely s 68 of the Judiciary Act: [18]-[21], [37].
Attorney-General (Cth) v Huynh [2023] 97 ALJR 298, applied.
1. As to the second issue, although, pursuant to s 39(2) of the Judiciary Act, the Supreme Court would ordinarily have jurisdiction to deal with a matter arising under s 68(1) of that Act, s 9(1) of the ADJR Act deprives the Supreme Court of jurisdiction to review decisions to which the ADJR Act applies, namely decisions of an administrative character made under an enactment, and vests that jurisdiction solely in the Federal Court. If s 9(1) applies, then it is only by way of s 4(1) of the Cross-vesting Act that jurisdiction to review such decisions is reinvested in the Supreme Court: [21]-[22], [33]-[36].
ML v Australian Securities and Investments Commission (2013) 276 FLR 14, Hopkins v Governor-General of Australia (2013) 280 FLR 49, Anglo American Investments Pty Ltd v Deputy Commissioner of Taxation (2017) 347 ALR 134, applied.
1. Garling J's decision was made pursuant to State legislation picked up by the Judiciary Act and applied as surrogate federal law and was thus, made "under an enactment": [24].
Attorney-General (Cth) v Huynh [2023] 97 ALJR 298, Lamb v Moss (1983) 49 ALR 533, Re Grinter; Ex parte Hall (2004) 28 WAR 427, applied.
1. Garling J's decision did not involve an exercise of judicial power which, while not determinative, supported characterisation of his decision as being of an "administrative character": [26].
Eastman v Besanko (2010) 244 FLR 262, Varley v Attorney General (NSW) (1987) 8 NSWLR 30; Sinkovich v Attorney General (NSW) (2013) 85 NSWLR 783; Patsalis v Attorney General (NSW) (2013) 85 NSWLR 463; Lodhi v Attorney General (NSW) (2013) 241 A Crim R 477; Buttrose v Attorney General (NSW) (2015) 324 ALR 562; GAR v Attorney General (NSW) (No 2) [2017] NSWCA 314; Clark v Attorney General (NSW) [2020] NSWCA 70, applied.
1. Garling J's decision was of an administrative character and thus engaged s 9 of the ADJR Act: [27]-[32]. Thus the jurisdiction of this Court only arose under the Cross-vesting Act, and the second requirement of being a "special federal matter" was also satisfied.
Holzinger v Attorney-General (Qld) (2020) 5 QR 314, Attorney-General (Cth) v Ogawa (2020) 281 FCR 1, distinguished.
Attorney-General (Cth) v Huynh [2023] 97 ALJR 298, Huynh v Attorney General (NSW) (2021) 107 NSWLR 75, Griffith University v Tang (2005) 221 CLR 99, applied.
Martens v the Commonwealth (2009) 174 FCR 114, considered.
As to the special reasons issue:
1. "Special reasons" in the context of s 6(3) of the Cross-vesting Act do not require exceptionality. The reasons will take their character as special from the context of the proceeding and may include issues of costs and delay which are not purely matters of convenience to the parties: [39]-[44].
Baker v the Queen (2004) 223 CLR 513, Henry v Hancock [2016] NSWSC 71, Montgomery v Porter [2019] NSWSC 1524, Jin Niu Investments Pty Ltd v Wang [2019] NSWSC 1697, Sallway (in their capacity as liquidators of MB Australia Pty Ltd) v Citadel Group Properties Pty Ltd [2021] NSWSC 709, applied.
1. There were several special reasons why an order pursuant to s 6(3) of the Cross-vesting Act should be made, notwithstanding the general rule that special federal matters should be heard by the Federal Court: [45], [53].
2. Keeping the proceedings in the Court of Appeal was consistent with the Commonwealth's scheme for territorially, rather than nationally, uniform criminal procedure: [46].
R v Gee (2003) 212 CLR 230, considered.
1. The proceedings concerned a State law, albeit applied as a surrogate federal law, that conferred functions on a State Supreme Court judge, albeit acting persona designata, with respect to the review of a conviction entered in a State court (albeit one exercising federal jurisdiction): [47]-[48].
Moore v Commonwealth Director of Public Prosecutions [2023] NSWCA 153, R v Murray and Cormie (1916) 22 CLR 437, O'Donoghue v Ireland (2008) 234 CLR 599, applied.
Sallway (in their capacity as liquidators of MB Australia Pty Ltd) v Citadel Group Properties Pty Ltd [2021] NSWSC 709, compared.
1. The Court of Appeal had greater familiarity than the Federal Court with the lengthy procedural history of the proceedings as well as with the CAR Act generally: [49]-[50].
[6]
JUDGMENT
BELL CJ: The proceedings before the Court have a long and complex procedural history.
On 9 June 2015, following a jury trial in the District Court of New South Wales presided over by his Honour, Judge Whitford SC, Mr Huy Huynh (the Applicant) was convicted of an offence of conspiracy to import a commercial quantity of a border-controlled precursor (pseudoephedrine) with the intention that the substance would be used to manufacture a controlled drug, pursuant to ss 11.5(1) and 307.11(1) of the Criminal Code Act 1995 (Cth).
On 20 November 2015, the Applicant was sentenced to 12 years imprisonment with a non-parole period of 8 years commencing on 1 August 2014 and expiring on 31 July 2022: R v Cranney; R v Huynh [2015] NSWDC 276. Following a successful appeal against sentence in the Court of Criminal Appeal (CCA), the Applicant was resentenced to 12 years imprisonment with a non-parole period of 8 years which commenced on 20 June 2014 and expired on 19 June 2022: Huynh v R [2022] NSWCCA 45.
On 29 September 2017, the CCA dismissed an appeal lodged by the Applicant together with his alleged co-conspirator, Mr Christopher Cranney, from their convictions: Cranney v R; Huynh v R (2017) 269 A Crim R 449; [2017] NSWCCA 234. Leave to appeal to the High Court of Australia was refused: Huynh v The Queen [2019] HCASL 6.
Having exhausted other available avenues for appeal, the Applicant then lodged an application for a post-appeal inquiry pursuant to ss 78 and 79 of the Crimes (Appeal and Review) Act 2001 (NSW) (CAR Act). Those sections provide:
"78 Applications to Supreme Court
(1) An application for an inquiry into a conviction or sentence may be made to the Supreme Court by the convicted person or by another person on behalf of the convicted person…
79 Consideration of applications
(1) After considering an application under section 78 or on its own motion -
(a) the Supreme Court may direct that an inquiry be conducted by a judicial officer into the conviction or sentence, or
(b) the Supreme Court may refer the whole case to the Court of Criminal Appeal, to be dealt with as an appeal under the Criminal Appeal Act 1912.
(2) Action under subsection (1) may only be taken if it appears that there is a doubt or question as to the convicted person's guilt, as to any mitigating circumstances in the case or as to any part of the evidence in the case.
(3) The Supreme Court may refuse to consider or otherwise deal with an application. Without limiting the foregoing, the Supreme Court may refuse to consider or otherwise deal with an application if -
(a) it appears that the matter -
(i) has been fully dealt with in the proceedings giving rise to the conviction or sentence (or in any proceedings on appeal from the conviction or sentence), or
(ii) has previously been dealt with under this Part or under the previous review provisions, or
(iii) has been the subject of a right of appeal (or a right to apply for leave to appeal) by the convicted person but no such appeal or application has been made, or
(iv) has been the subject of appeal proceedings commenced by or on behalf of the convicted person (including proceedings on an application for leave to appeal) where the appeal or application has been withdrawn or the proceedings have been allowed to lapse, and
(b) the Supreme Court is not satisfied that there are special facts or special circumstances that justify the taking of further action.
(3A) The Supreme Court may defer consideration of an application under section 78 if -
(a) the time within which an appeal may be made against the conviction or sentence (including an application for leave to appeal) is yet to expire, or
(b) the conviction or sentence is the subject of appeal proceedings (including proceedings on an application for leave to appeal) that are yet to be finally determined, or
(c) the application fails to disclose sufficient information to enable the conviction or sentence to be properly considered.
…
(4) Proceedings under this section are not judicial proceedings. However, the Supreme Court may consider any written submissions made by the Crown with respect to an application…"
[7]
Special federal matter
A "special federal matter" is, relevantly for present purposes, defined by s 3(1) of the Cross-vesting Act as including:
"(c) a matter arising under the Administrative Decisions (Judicial Review) Act 1977; or
(e) a matter that is within the original jurisdiction of the Federal Court by virtue of section 39B of the Judiciary Act 1903;
being a matter in respect of which the Supreme Court of a State or Territory would not, apart from this Act, have jurisdiction."
The Attorney-General (Cth) submitted that an application for judicial review of the primary judge's decision is a "special federal matter" falling within the scope of either s 3(1)(c) or (e) of the Cross-vesting Act. It may be noted that s 3(1)(c) employs the language of "arising under" while s 3(1)(e) speaks of a matter "within" the original jurisdiction of the Federal Court.
Two issues are raised by the definition: whether the matter falls within one of the categories relied upon and, if so, whether the Supreme Court would only have jurisdiction under the Cross-Vesting Act. The first issue can readily be addressed by reference to s 3(1)(e). The original jurisdiction of the Federal Court under s 39B(1A) of the Judiciary Act includes:
"jurisdiction in any matter: …
(c) arising under any laws made by the Parliament, other than a matter in respect of which a criminal prosecution is instituted or any other criminal matter."
Although this case relates to a criminal conviction, it is not a criminal prosecution, and neither any party nor the contradictor suggested that it should otherwise be regarded as a "criminal matter", recalling that this case involves an application for judicial review. As will be explained presently, jurisdiction also arose under a law made by the federal Parliament, namely s 68 of the Judiciary Act. The matter can thus be regarded as falling within category (e) of the definition of "special federal matter". It is not necessary to determine whether the matter also meets the description of a "special federal matter" within the meaning of s 3(1)(c) of the Cross-vesting Act which was the alternative statutory "hook" for the argument of the Attorney-General (Cth).
The question then is whether the Supreme Court would have jurisdiction only under the Cross-Vesting Act. The parties all accepted, and the contradictor did not dispute, that subject to the ADJR Act, the Supreme Court would have jurisdiction in this matter by virtue of s 39(2) of the Judiciary Act (in circumstances where the exclusions in s 38 of that Act did not apply). Such jurisdiction will, however, be removed from the Supreme Court in the event that s 9(1) of the ADJR Act is engaged. That section provides:
"(1) Notwithstanding anything contained in any Act other than this Act, a court of a State does not have jurisdiction to review:
(a) a decision to which this section applies that is made after the commencement of this Act;
(b) conduct that has been, is being, or is proposed to be, engaged in for the purpose of making a decision to which this section applies;
(c) a failure to make a decision to which this section applies; or
(d) any other decision given, or any order made, by an officer of the Commonwealth or any other conduct that has been, is being, or is proposed to be, engaged in by an officer of the Commonwealth, including a decision, order or conduct given, made or engaged in, as the case may be, in the exercise of judicial power.
Note: This subsection has effect subject to the Jurisdiction of Courts (Cross-vesting) Act 1987 and to subsection 1337B(3) of the Corporations Act 2001.
(2) In this section:
decision to which this section applies means:
(a) a decision that is a decision to which this Act applies; or
(b) a decision of an administrative character that is included in any of the classes of decisions set out in Schedule 1."
[8]
Special reasons for the proceedings to be dealt with by this Court
Neither the High Court nor any intermediate appellate court has provided any authoritative guidance as to the construction of the phrase "special reasons" in the specific context of s 6(3) of the Cross-vesting Act. Cognate expressions have, however, been considered. Thus, in relation to s 13A(3A) of the Sentencing Act 1989 (NSW) for example, in Baker v The Queen (2004) 223 CLR 513; [2004] HCA 45 at [13], Gleeson CJ reasoned that:
"There is nothing unusual about legislation that requires courts to find "special reasons" or "special circumstances" as a condition of the exercise of a power. This is a verbal formula that is commonly used where it is intended that judicial discretion should not be confined by precise definition, or where the circumstances of potential relevance are so various as to defy precise definition. That which makes reasons or circumstances special in a particular case might flow from their weight as well as their quality, and from a combination of factors."
Callinan J, in the same decision, said the following:
"[173] … Legislative requirements that a judicial determination depend upon the demonstration of exceptional or special matters, events, circumstances, or reasons, are far from unique and have been the subject of much judicial deliberation. Regularly this Court is called upon to decide whether special leave to appeal should be granted. Speaking of the expression "exceptional circumstances" in s 2 of the Crime (Sentences) Act 1997 (UK) required for a decision not to impose a sentence of life imprisonment, Lord Bingham of Cornhill CJ said in R v Kelly (Edward) [2000] QB 198 at 208:
"We must construe 'exceptional' as an ordinary, familiar English adjective, and not as a term of art. It describes a circumstance which is such as to form an exception, which is out of the ordinary course, or unusual, or special, or uncommon. To be exceptional a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered."
[174] "Special reasons" in my opinion share those characteristics."
"Special reasons" are not synonymous with "exceptional circumstances" although the existence of "exceptional circumstances" would no doubt satisfy a requirement for there to be "special reasons". Moreover s 6(3) of the Cross-vesting Act requires that "special reasons" are considered "in the particular circumstances of the proceeding". That is not to say that they must be unique, but they will take their character as "special" from the proceeding.
[9]
Orders
The Court should order that pursuant to s 6(3) of the Cross-vesting Act, the application for judicial review should be determined by this Court. The proceedings should be listed before the Registrar for the making of directions for written submissions in relation to the application and the setting of a further date for its hearing if the parties do not otherwise consent to the application being determined on the papers.
KIRK JA: I agree with Bell CJ.
SIMPSON AJA: I have read in draft the judgment of the Chief Justice. I agree with the orders proposed by his Honour and his reasons therefor.
[10]
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: 16 August 2023
On 13 October 2020, Garling J (the primary judge) dismissed Mr Huynh's application for a post-appeal inquiry under Pt 7 of the CAR Act: Application of Huy Huynh under Part 7 of the Crimes (Appeal and Review) Act 2001 for an Inquiry [2020] NSWSC 1356. His Honour's decision did not involve an exercise of judicial power: Varley v Attorney General (NSW) (1987) 8 NSWLR 30 at 48-49; Sinkovich v Attorney General (NSW) (2013) 85 NSWLR 783; [2013] NSWCA 383 at [12]; Patsalis v Attorney General (NSW) (2013) 85 NSWLR 463; [2013] NSWCA 343 at [22]; Lodhi v Attorney General (NSW) (2013) 241 A Crim R 477; [2013] NSWCA 433 at [22]; Buttrose v Attorney General (NSW) (2015) 324 ALR 562; [2015] NSWCA 221 at [4]; GAR v Attorney General (NSW) (No 2) [2017] NSWCA 314 at [140]; Clark v Attorney General (NSW) [2020] NSWCA 70 at [12].
By way of a summons filed on 18 January 2021, the Applicant commenced proceedings in the Court of Appeal under s 69 of the Supreme Court Act 1970 (NSW) (Supreme Court Act) seeking an order quashing the primary judge's (non-judicial) decision and a declaration that it was affected by errors of law and jurisdiction. The Applicant filed a Further Amended Summons on 19 August 2021 seeking relief pursuant to either the inherent jurisdiction of the Court, ss 65, 69 or 101 of the Supreme Court Act, s 39(2) of the Judiciary Act 1903 (Cth) (Judiciary Act) or s 5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act).
Although the Attorney General for New South Wales was originally named as the respondent in those proceedings, the Supreme Court of New South Wales and the Attorney-General for the Commonwealth were later joined to the proceedings.
In the course of determining the Further Amended Summons, a jurisdictional issue emerged concerning whether the post-appeal inquiry procedures in the CAR Act to review convictions for Commonwealth offences were available as laws of the State and, if not, whether they could be "picked up" and applied as surrogate federal laws by way of s 68 of the Judiciary Act.
On 8 December 2021, a majority of a five judge Court of Appeal bench held that the primary judge's decision which purported to determine the application lodged by the Applicant under s 78 of the CAR Act was void and of no effect on the basis that an inquiry pursuant to s 79 was not available in respect of a Commonwealth offence: Huynh v Attorney General (NSW) (2021) 107 NSWLR 75; [2021] NSWCA 297 (Huynh (NSW)).
On appeal, a majority of the High Court held that, by virtue of s 68(1) of the Judiciary Act, ss 78(1) and 79(1)(b) (but not s 79(1)(a)) of the CAR Act are picked up and applied as surrogate federal laws in circumstances where a person is convicted in a New South Wales court of a Commonwealth offence: Attorney-General (Cth) v Huynh (2023) 97 ALJR 298; [2023] HCA 13 (Huynh (HC)). At [77], Kiefel CJ, Gageler and Gleeson JJ (who, with Jagot J, formed the majority) concluded that:
"the texts of ss 78(1) and 79(1)(b) of the CAR Act are applied as Commonwealth laws by force of s 68(1) of the Judiciary Act on the basis that they are laws respecting the procedure for the hearing of appeals in the 'like jurisdiction' to that conferred under s 86 of the CAR Act…"
It followed that the (non-judicial) decision of Garling J to dismiss Mr Huynh's application for a post-appeal inquiry was made under a law of the Commonwealth, namely s 68(1) of the Judiciary Act. The significance of this point is explored later in these reasons.
The High Court made orders on 10 May 2023 remitting the matter to this Court for the hearing and determination of the substance of the application for judicial review in accordance with its judgment.
On 14 June 2023, the Applicant filed an Amended Summons seeking orders that the decision of the primary judge be quashed, a declaration that the primary judge's decision is affected by an error of jurisdiction and law and that the matter, pursuant to s 78(1)(b) of the CAR Act, be referred to the CCA. No relief continued to be sought under the ADJR Act. The Amended Summons sets out two Grounds of Review:
"1. Error of jurisdiction on the part of Garling J as his Honour exercised a power that was not open to him by determining the outcome of legal questions that were submitted in the applicant's section 78 application as his Honour was performing an administrative task and was not acting in a judicial capacity as per s 79(4).
2. Error of law as Garling J's reasons for decision did not apply the relevant principles with respect to the applicant's defence not being put to the jury and his honour also did not apply the relevant principles as to how a conspiratorial agreement is properly proven when addressing the issues the applicant raised in the s 78 application."
On the remitter, a threshold jurisdictional issue has arisen in this Court, namely whether the remitted judicial review proceedings involve a "special federal matter" within the meaning of s 3 of the Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth) (Cross-vesting Act), such that they must be transferred to the Federal Court of Australia unless, pursuant to s 6(3) of the Cross-vesting Act, there are "special reasons" to make an order that the proceedings be determined by this Court.
The Registrar of the Court of Appeal ordered that this issue be determined prior to any consideration of the merits of the judicial review application. That was a logical and sensible course given the possibility that the proceedings may have needed to be transferred to the Federal Court.
All parties to the proceedings, namely the Applicant, the Attorney-General (Cth) and the Attorney General (NSW), contended that the proceedings did involve a "special federal matter", but each also contended that special reasons existed justifying the retention of proceedings in this Court rather than being referred to the Federal Court pursuant to s 6(1) of the Cross-vesting Act. Mr Tang of counsel appeared as amicus to advance any submissions to the Court for a contrary outcome in the absence of a party contradictor.
It is necessary first for the Court to satisfy itself that the parties' joint position, namely that the judicial review application is a "special federal matter", is correct. For the following reasons, I am satisfied that it is.
Section 9(1) will be engaged if the decision of Garling J was "a decision to which the [ADJR Act] applies", namely a decision of an administrative character made under an enactment: s 3 of the ADJR Act.
Garling J's decision was plainly made under an enactment, namely the Judiciary Act. This was the burden of the High Court's decision in Huynh (HC). As put in the submissions of the Attorney General (NSW):
"[s]uch a decision is properly considered to be 'made under' the Judiciary Act in the sense that it is not possible to identify the legal authority for the decision without recourse to that Act."
State legislation picked up by the Judiciary Act and applied as surrogate federal law has been held to be an "enactment" for the purposes of the ADJR Act: see Lamb v Moss (1983) 49 ALR 533 at 559-560; [1983] FCA 254; Re Grinter; Ex parte Hall (2004) 28 WAR 427; [2004] WASCA 79 at [74], [135]-[141], [156].
That leaves the question whether Garling J's decision was of an "administrative character" within the meaning of the ADJR Act.
As a matter of State law, Garling J's decision was not a judicial decision: see [6] above. That points strongly towards it being of an "administrative character", although it is not determinative cf., for example, Eastman v Besanko (2010) 244 FLR 262; [2010] ACTCA 15 (Eastman) at [90] (Dowsett J).
In Huynh (HC), Jagot J at [265] referred to the functions of the Supreme Court under ss 78 and 79 of the CAR Act as "administrative"; see also Gordon and Steward JJ at [132]. In Huynh (NSW), Basten JA (with whom Bathurst CJ and Gleeson JA agreed) characterised the functions exercised by Garling J as administrative in character (see [39]-[47]). Leeming JA (at [149]) and Payne JA (at [265]) were of the same view. The characterisation of the functions performed by Garling J under s 78 of the CAR Act by various members of this Court in Huynh (NSW) were not called into question by the High Court nor suggested in submissions in the present case to be wrong, albeit they were not in terms made for the purposes of determining whether or not the decision of Garling J was one which would fall within the meaning of a decision of an administrative character for the purposes of the ADJR Act.
Reference was made, in the course of argument, to the decision of the Queensland Court of Appeal in Holzinger v Attorney-General (Qld) (2020) 5 QR 314; [2020] QCA 165 (Holzinger) where it was held that the Attorney-General's refusal to refer whole or part of the Applicant's case to the Court of Appeal was not a decision of an administrative character made under an enactment: see especially at [52]. Holzinger was followed by the Full Court of the Federal Court in Attorney-General (Cth) v Ogawa (2020) 281 FCR 1; [2020] FCAFC 180.
Holzinger may readily be distinguished from the present case for a number of reasons. First, it concerned the actions of the Attorney General which were regarded at [50] as analogous to a:
"decision by the Attorney-General to present an ex officio indictment or to enter a nolle prosequi or, indeed, to instruct that civil proceedings be commenced."
The decision by Garling J in the present case was in no way analogous to these functions.
Second, it was noted at [52] that:
"[t]hese are steps that the Attorney-General may take or not as she chooses, unconstrained by any accompanying duty."
By way of contrast, the Supreme Court at the very least had a duty to consider an application duly made under s 78 of the CAR Act.
Thirdly, the decision to refer or not to refer the matter to the CCA had "the capacity to affect legal rights" (Griffith University v Tang (2005) 221 CLR 99; [2005] HCA 7 at [80]) insofar as it could ultimately result, if a reference were made and an appeal were successful, in the quashing of Mr Huynh's conviction; see also in this context, Eastman at [93] (Dowsett J). Moreover, as Mr Horan KC for the Attorney-General (Cth) submitted, the decisions within State (as opposed to federal) jurisdiction referred to in [6] above necessarily contemplated the affectation of at least procedural rights in the context of an application under ss 78 and 79 of the CAR Act.
Accepting that the various references in Huynh (NSW) to the administrative nature of the task undertaken by Garling J noted at [27] above were not made in the context of the ADJR Act, they nonetheless lend strong support to the conclusion that Garling J's decision was one of an administrative character made under an enactment, so as to warrant the description of a "decision to which this Act applies" within the meaning of s 9(2) of the ADJR Act. The same conclusion is supported by the decision of Logan J in Martens v The Commonwealth (2009) 174 FCR 114; [2009] FCA 207 at [25]. In my view, that is the correct characterisation.
It follows that, irrespective of the fact that Mr Huynh no longer apparently seeks relief pursuant to the ADJR Act (as he did prior to the most recent amendments to his Summons), s 9(1) of that Act operates to deprive this Court of jurisdiction under s 39(2) of the Judiciary Act with the consequence that, in the language of s 3(1) of the Cross-vesting Act, the matter is one "in respect of which this Court would not, apart from the Cross-vesting Act, have jurisdiction": see ML v Australian Securities and Investments Commission (2013) 276 FLR 14; [2013] NSWCA 109 at [5], [12]-[13]. As such, the matter is a "special federal matter" within the meaning of that Act.
Notwithstanding the denial of jurisdiction by s 9 of the ADJR Act, as the Note to s 9(1) states, that subsection is subject to the Cross-vesting Act, a later Act in time. (The Note forms part of the Act by virtue of s 13 of the Acts Interpretation Act 1901 (Cth)).
The Cross-vesting Act, by s 4, had the effect of reinvesting the Supreme Court of NSW with (cross-vested) jurisdiction so as to be able to entertain an application for judicial review, whether under the ADJR Act or by way of certiorari or mandamus; see also Hopkins v Governor-General of Australia (2013) 280 FLR 49; [2013] NSWCA 365 (Hopkins) at [24]-[25]; Anglo American Investments Pty Ltd v Deputy Commissioner of Taxation (2017) 347 ALR 134; [2017] NSWCA 17 at [75]. Section 4(1) of the Cross-vesting Act provides that:
"(1) Where:
(a) the Federal Court or the Federal Circuit and Family Court of Australia (Division 1) has jurisdiction with respect to a civil matter, whether that jurisdiction was or is conferred before or after the commencement of this Act; and
(b) the Supreme Court of a State or Territory would not, apart from this section, have jurisdiction with respect to that matter;
then:
(c) in the case of the Supreme Court of a State (other than the Supreme Court of the Australian Capital Territory and the Supreme Court of the Norther Territory) - that court is invested with federal jurisdiction with respect to that matter…"
The jurisdiction so reinvested and conferred upon this Court by s 4(1) of the Cross-vesting Act is, however, subject to the "special federal matters" regime set out in s 6 of the Cross-vesting Act. That section relevantly provides that:
"(1) If -
(a) a matter for determination in a proceeding that is pending in the Supreme Court is a special federal matter, and
(b) the court does not make an order under subsection (3) in respect of the matter,
the court must transfer the proceeding in accordance with this section to the Federal Court or a court mentioned in subsection (2)(b).
(1A) …
(2) ….
(3) The Supreme Court may order that the proceeding be determined by that court if it is satisfied that there are special reasons for doing so in the particular circumstances of the proceeding other than reasons relevant to the convenience of the parties.
(4) …
(5) …
(6) In considering whether there are special reasons for the purposes of subsection (3), the court must -
(a) have regard to the general rule that special federal matters should be heard by the Federal Court or a court mentioned in subsection (2)(b), whichever is appropriate in the particular case, and
(b) take into account any submission made in relation to the proceeding by an Attorney-General mentioned in subsection (4)."
By this regrettably but unavoidably complex route, the matter is a "special federal matter" within the meaning of the Cross-vesting Act such that special reasons must be identified for it not to be transferred to the Federal Court.
If, contrary to my view but by analogy with Holzinger and Eastman, the decision of Garling J was not of "an administrative character" within the meaning of the definition of a "decision to which this Act applies" in the ADJR Act, that Act (including s 9) would not apply and no question of a special federal matter would arise nor would any question of transfer to the Federal Court, subject to special reasons pointing away from this course.
The meaning of "special reasons" in the context of s 6(3) of the Cross-vesting Act has been considered in a number of first instance decisions of this Court. In Henry v Hancock [2016] NSWSC 71 at [60], Brereton J (as his Honour then was) said:
"The use of the formula "special circumstances" reflects an intention that judicial discretion not be confined by a list of relevant factors, by capturing circumstances of potential relevance which are so various as to defy precise definition. Circumstances are special if they are unusual, uncommon or exceptional in character, quality or degree; if they differ from the ordinary or the usual; or if they are particular or individual; but they need not be unique. Circumstances may be special by reason of their weight as well as their quality, and because of a combination of factors. The terms of s 28(5) indicate that property not vesting in interest, incapacity, and circumstances analogous thereto, may constitute special circumstances; but special circumstances are not limited to those suggested by the terms of the section or closely analogous to them. Factors that contribute to a decision to extend time under s 16 can also contribute to a finding of "special circumstances"; however, more is required to establish special circumstances under s 28(5)(d) than to justify an extension of time under s 16."
Ward CJ in Eq (as her Honour then was) recognised that issues of costs and delay are not purely matters of convenience to the parties and can amount to special reasons: Montgomery v Porter [2019] NSWSC 1524 at [60], [65], see also Jin Niu Investments Pty Ltd v Wang [2019] NSWSC 1697 at [26]-[32].
In Sallway (in their capacity as liquidators of MB Australia Pty Ltd) v Citadel Group Properties Pty Ltd [2021] NSWSC 709 at [20] (Sallway), Hammerschlag J (as his Honour then was) observed that:
"[s]pecial reasons do not require that the circumstances must be extraordinary or unique. It is sufficient if they are unusual or uncommon in character equality or degree, if they differ from the ordinary or usual, or if they are particular or individual, but they need not be unique."
There are a number of special reasons why this Court should order that the proceeding be determined in this jurisdiction pursuant to s 6(3) of the Cross-vesting Act.
First, keeping the proceedings in the Court of Appeal is consistent with the Commonwealth's legislative scheme for criminal procedure which favours territorial uniformity, rather than national uniformity in respect of Commonwealth offences. Reference may be made in this regard to the observations of Gleeson CJ in R v Gee (2003) 212 CLR 230; [2003] HCA 12 at [7].
Second, the proceedings concern a State law, albeit one picked up and applied as a surrogate federal law. The relevant State law is one which confers functions on a State Supreme Court judge, albeit acting persona designata, with respect to the review of a conviction entered in a State court (albeit one exercising federal jurisdiction): Moore v Commonwealth Director of Public Prosecutions [2023] NSWCA 153 at [69(6)]. That review, moreover, is to be conducted in the CCA if the matter is referred: compare Sallway at [20] where emphasis was placed on the need for consideration of a question concerning the Real Property Act 1900 (NSW) as supplying a special reason for the retention of the special federal matter in the Supreme Court of NSW.
Third, even though ss 78 and 79 of the CAR Act were picked up as surrogate federal law, Garling J was not acting as an officer of the Commonwealth in discharging his function pursuant to that surrogate federal law: R v Murray and Cormie (1916) 22 CLR 437 at 452; [1916] HCA 58; see also, O'Donoghue v Ireland (2008) 234 CLR 599; [2008] HCA 14 at [32].
Fourth, the particular proceedings have a lengthy history within this Court and, for that reason, it may be expected that they will be able to be dealt with more promptly because of that familiarity than if they were transferred to the Federal Court which has no familiarity with the particular case and its history. There is also the fact that Mr Huynh is self-represented. This is not a matter of convenience so much as a consideration that he has familiarity with this Court's practice and procedure which it may be expected will assist in facilitating the expeditious resolution of his case.
Fifth, it was argued that review of a decision made under Pt 7 of the CAR Act is not a class of proceedings which falls within the specialist expertise of the Federal Court. Whilst this is correct, the preferable way of expressing this argument is to note that members of the Common Law Division of this Court and of the Court of Appeal have practical familiarity with both Pt 7 of the CAR Act and that Act more generally in a way in which judges of the Federal Court do not, both in relation to Pt 7 and criminal matters more generally, noting the extremely limited criminal jurisdiction conferred on, still less exercised in, that Court.
It should be noted that the Attorney-General (Cth) submitted that a further reason for retaining the proceedings in the Supreme Court of NSW was that the underlying judicial review proceedings lacked any real prospects of success such that they should be determined as promptly as possible by this Court, an approach which was endorsed in Hopkins at [27]. In circumstances where, by order of the Registrar of the Court of Appeal, the hearing before this Court was confined to the question of jurisdiction and the underlying merits of the application for judicial review would not arise unless and until this Court determined that special reasons existed for not transferring the proceedings, it was premature and would have been inappropriate to engage with the merits of the underlying application for judicial review in the present case.
Mr Tang submitted, somewhat faintly, that there were no special reasons for the judicial review proceedings to be determined by this Court but did not engage with the arguments strongly connecting the matter to New South Wales by reason of its history and the underlying nature of the application.
Notwithstanding the general rule to which regard must be had, namely that special federal matters should be heard by the Federal Court, the special reasons advanced on behalf of the Attorney-General (Cth) and articulated above are cogent and point to the retention of proceedings in this Court pursuant to s 6(3) of the Cross Vesting Act.