Kirsch v Dolman [2001] VSC 234

111. In Amand v Home Secretary (1943) AC 147, the House of Lords was concerned with a case where a Netherlands subject was arrested in England as an absentee, without leave, from the Netherlands Army. A divisional court refused his application for a writ of habeas corpus, and the Court of Appeal held that it had no jurisdiction to hear an appeal from this decision. The statute concerning appeals excluded an appeal from "a criminal cause or matter". So, the question was whether the application for a writ of habeas corpus was a criminal cause or matter.

"It is the nature and character of the proceeding in which habeas corpus is sought which provides the test. If the matter is one the direct outcome of which may be trial of the applicant and his possible punishment for an alleged offence by a court claiming jurisdiction to do so, the matter is criminal."

118. Applying that test, the House of Lords held that the appellant's application for the writ of habeas corpus and the refusal was "in a criminal cause or matter", and accordingly, there was no right of appeal.

121. In R v Watt; ex parte Slade [1912] VicLawRp 43; (1912) VLR 225, the Full Court was concerned with the question whether there was a right of appeal where an application had been made for the issue of a writ of mandamus. The Court, at first instance, refused to issue the writ. At p.241, Cussen J noted that in some cases, the nature of the proceeding was equivocal as to whether it was criminal or civil. He went on to say this -

"Such are cases of habeas corpus, mandamus, certiorari, and matters of that kind. In these cases you may have to look back to see whether the matter directly under consideration is not merely subordinate or ancillary to some prior and more substantial matter, and where the decision one way or the other, in the matter directly under consideration, does or does not affect the proceedings on, or in connection with, the other and more substantial matter. If you find it does affect the prior matter, whether a proceeding in court or not, which itself is criminal, then it may be held, and it has been held in many cases, that the proceeding directly under consideration is a criminal matter. There are numerous examples of that class of case in the books, and I think it is that class of case which gives rise to the most difficulty. In both classes it is the substance and not the form which determines the ultimate decision. If, for example, you have an application for habeas corpus, you cannot determine straight off, simply on learning that fact, whether the matter is criminal or not. If you find that that habeas corpus relates to the imprisonment of some person who is imprisoned for some offence, then it would probably be held that it is a criminal matter, and if it relates to the custody of a child, apart from any question of imprisonment in the ordinary sense, it may be held to be a civil matter. The same considerations will determine cases in connection with many applications for mandamus, certiorari, and so on." (Emphases added).

125. Although these cases were concerned with the question of appeals in relation to prerogative writ applications, the reasoning provides a practical test to determine the nature of the proceeding.

128. The Court must consider the substance of the matter which is the underlying proceeding in respect of which judicial review is applied.

131. Applying that test, it is my opinion that the judicial review was in respect of a matter which was criminal in nature, and that this was the underlying proceeding which was the subject of the exercise of the judicial review jurisdiction of this Court. Hence, the exercise of the common law jurisdiction of this Court was in respect of a matter which was a criminal matter.

134. It follows that s.4(1) of the Appeal Costs Act does not apply to this judicial review and accordingly, Mr Dolman is not entitled to an indemnity certificate under that sub-section.

138. In light of my conclusion on the nature of the judicial review, it is unnecessary to consider the other two issues. However, they do raise matters of some importance and I will briefly consider them.

141. The authorities are clear, judicial review is not the exercise of an appellate jurisdiction. See Craig's case, supra, at p.175.

144. The word "appeal" is defined by s.3(1) of the Appeal Costs Act and extends its normal meaning. The section provides -

"(1) In this Act - 'appeal' includes an appeal by way of re-hearing, an application for a new trial and any proceeding in the nature of an appeal, but does not include a case stated;" (Emphasis added).

148. The question is whether judicial review is a proceeding "in the nature of an appeal".

151. Fullagar J in R v Marshall, ex parte Baronor Nominees Pty Ltd [1984] VicRp 17; (1984) VR 211 at pp.227-8 held that the old Appeal Costs Fund Act 1964 applied to judicial review. The definition of "appeal" included "any other proceedings in the nature of an appeal", and His Honour held that the provisions of the Act should be liberally construed. He held that an application for a prerogative writ was in the nature of an appeal, and granted a certificate. There is no difference in the relevant wording in the present Act, and I respectfully agree and adopt His Honour's reasoning.

154. If the proceeding had been a civil proceeding, it would have been open to the Court to grant a certificate under s.4(1) of the present Act.

"38. A court must not grant an indemnity certificate in favour of the Crown or any person representing the Crown."

162. Was the defendant, Mr Dolman, a person representing the Crown at the time when the order was made or, as a defendant in the proceeding in this Court? As a general proposition, prerogative remedies are not available against the Crown. The proper procedure against the Crown is a declaratory judgment. See Administrative Law by H.W.R. Wade, 6th ed, at p.644.

165. Further, in this State, many prerogative-type orders have been made in relation to proceedings involving a member of the police force. These propositions strongly suggest that Mr Dolman is neither the Crown nor a person representing the Crown in the present proceeding.

168. In any event, a member of the force who is investigating a crime, is not acting in any capacity as the Crown or representing the Crown. It is not until the filing of a presentment that the Crown becomes involved in any prosecution.

171. In Munday v Gill [1930] HCA 20; (1930) 44 CLR 38 at 86, Dixon J said -

"There is, however, a great distinction in history, in substance and in present practice between summary proceedings and trial upon indictment. Proceedings upon indictment, presentment or ex officio information are pleas of the Crown. The prosecution for an offence punishable summarily is a proceeding between subject and subject."

See also McEwen v Siley (1972) 21 FLR 131 at 134.

176. It is clear law that when a police officer lays a charge, he is not acting for or on behalf of the Crown but acting purely and simply on his own decision. In my view, a member of the force, when investigating a crime and applying for a statutory order that a suspect provide a sample, is not acting as the Crown or representing the Crown.

179. In my opinion, s.38 has no application to the present matter and would not have precluded the grant of a certificate.

183. The plaintiff submitted that, given the circumstances of what was a blatant breach of the law, Mr Dolman should not have a certificate in the exercise of the discretion of the Court. There is no doubt that the Court does have a discretion, and in an appropriate case, may refuse a certificate for good cause. However, because Mr Dolman is not entitled in any event to a certificate because the proceeding is a criminal proceeding, it is unnecessary for me to make any findings in respect of the question of discretion.

186. An error caused by a submission of a party to a court which should not have been made, may be a ground for refusing the granting of a certificate. See Di Battista v Motton [1971] VicRp 68; (1971) VR 565.

190. In my opinion, Mr Dolman is not entitled to a certificate under the Appeal Costs Act 1998 because this judicial review is concerned with a matter which is not a "civil proceeding" within the meaning of s.4(1) of the Act.

(i) That the order of the Magistrates' Court of Victoria made at Melbourne on 4 May 2001 in which Jason K. Dolman is the applicant and Helmut Kirsch is the respondent, be quashed.

(ii) That the first defendant Jason Kenneth Dolman pay the plaintiff's costs of the proceeding including reserved costs.

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