Huynh v Attorney General

[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:

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)

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

[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.]

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].

JUDGMENT

1. BELL CJ: The proceedings before the Court have a long and complex procedural history.
2. 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).
3. 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.
4. 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.
5. 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…"

Special federal matter

1. 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."
2. 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.
3. 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).
4. 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."

Special reasons for the proceedings to be dealt with by this Court

1. 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."
2. 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."
3. "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.

Orders

1. 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.
2. KIRK JA: I agree with Bell CJ.
3. 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.

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