Jurisdiction
49 The issue of jurisdiction is, in the circumstances of the present case, a difficult one. First, it is clear, that the Magistrate is not an "officer of the Commonwealth" so that s 39B of the Judiciary Act 1903, when it refers to remedies of mandamus, prohibition or injunction against such an officer can not be invoked directly against him: R v Murray & Cormie (1916) 22 CLR 437, Coward v Allen (1983-4) 52 ALR 320 at 325.
50 It is clear that the Officer is an officer of the Commonwealth to whom s 39B can apply. However, it is submitted that prohibition can not lie against her because she fulfilled her function in relation to the relevant proceeding in December 1996 when the information on which the prosecution was based was sworn. Prohibition lies only where there is something left to prohibit: Ex parte Malouf; Re Gee (1943) 43 SR(NSW) 195.
51 While it is true that the Officer's involvement in the prosecution ceased in 1996, the order sought against her is not sought directly in relation to her swearing the information. It is sought against her to prevent her taking any steps consequent upon the conviction, that is to say recovering the money which the Magistrate ordered Mrs Klewer to repay. I see no reason why that could not be treated as a sufficient continuing involvement to support an order of prohibition. Were Mrs Klewer, for example, to default in payment under the order, there seems no reason why an informant could not take proceedings for contempt, even though the obligation to repay is, as in the present case, an obligation in favour of a third party, that is to say, the Commonwealth. I was told from the bar table that, for the moment, no steps are being taken to enforce payment by Mrs Klewer of the amount the Magistrate ordered her to repay. In these circumstances, the making of an order in the nature of prohibition will not be futile. To the contrary, it has indeed a continuing operation. Even if I were wrong on this question, I do not think, for reasons which I will set out, that it matters whether the order of prohibition could properly be made. What does matter is that it was properly applied for by Mrs Klewer, thus founding jurisdiction on this Court.
52 It is submitted, however, for the respondents that what Mrs Klewer really seeks is not an order of prohibition but an order of certiorari, that is to say, an order quashing her conviction. But, it is then said, this Court does not have jurisdiction to grant an order in the nature of certiorari - the relief provided for in s 39B of the Judiciary Act is mandamus, prohibition and injunction, not certiorari. In Re Minister for Immigration & Multicultural Affairs; ex parte Durairajasingham (2000) 168 ALR 407 at 415, McHugh J noted that it had not yet been decided whether s 75(v) of the Constitution conferred jurisdiction upon the High Court to issue a writ of certiorari. Immediately after this comment, McHugh J noted that the High Court (and the same is true in this Court) would have jurisdiction to grant certiorari in the course of exercising its "accrued jurisdiction" to deal with the entire matter before it. It is important to set out precisely what his Honour there said at 415:
"… in my opinion, it is clear that the court has no jurisdiction to grant certiorari in a s 75(v) matter otherwise than as an incident of its accrued or expressly conferred jurisdiction. The Constitution confers no express power to grant certiorari. As Brennan CJ has pointed out, because the power to grant certiorari is merely ancillary to the jurisdiction conferred by s 75(v) of the Constitution, it does 'not expand the occasions where a writ of mandamus or prohibition would issue' under that paragraph of the Constitution. The ancillary nature of the power to grant certiorari means that the power can be exercised only when it is necessary to effectuate the grant of some other aspect of the court's jurisdiction conferred by or pursuant to ss 75 and 76 of the Constitution. Accordingly, unless the prosecutor can demonstrate that he is entitled to obtain an injunction, mandamus or prohibition against the respondents or one or more of them, the court has no power to grant certiorari quashing the decision of the tribunal."
53 This Court has conferred on it jurisdiction to determine a matter arising under any law made by the Commonwealth Parliament. In the present case jurisdiction is conferred upon this Court under s 39B of the Judiciary Act 1903 to issue writs of mandamus and prohibition to officers of the Commonwealth. It may well be that just as the conferral of jurisdiction on the High Court to issue writs of mandamus and prohibition implied the conferral of an ancillary jurisdiction to grant certiorari (see Pitfield v Franki (1970) 123 CLR 448 and the cases referred to in Re Jarman; ex parte Cook (1997) 188 CLR 595 at 604ff per Brennan CJ but see R v Dunphy; ex parte Maynes (1978) 139 CLR 482, where Barwick CJ questioned the Court's power to order certiorari) so too the conferral of jurisdiction on this Court to issue writs of mandamus and prohibition may imply the conferral on this Court of ancillary jurisdiction to grant certiorari. For an interesting discussion of the jurisdiction to grant a writ of certiorari, see L Katz "Aspects of the High Court's jurisdiction to grant prerogative writs under s 75(iii) and s 75(v) of the Constitution" (1976) 5 TasLR 188.
54 It is no doubt also the case that once the Court has jurisdiction conferred upon it by the Commonwealth Parliament (as here under s 39B of the Judiciary Act 1903) that jurisdiction extends beyond the determination of the whole controversy between the parties of which the federal claim forms part: Stack v Coast Securities (No 9) Pty Ltd (1983) 154 CLR 261. Hence, even if s 39B did not carry with it, by inference, jurisdiction in this Court to issue a writ of certiorari, the accrued jurisdiction of this Court would, where the Commonwealth jurisdiction was initially attracted by the application for a writ of prohibition, extend to the grant of certiorari. In principle, the fact that the application for the writ of prohibition was unsuccessful would not prevent the Court from exercising its accrued jurisdiction, so long as so to do would involve the Court determining the whole controversy or matter: Burgundy Royale Investments Pty Ltd v Westpac Banking Corporation (1987) 76 ALR 173. There may be a qualification to this principle where the claim for federal relief is but colourable, but it is not necessary to consider that qualification here: cf New South Wales Aboriginal Land Council v Aboriginal and Torres Strait Islander Commission (1995) 131 ALR 559 at 572.
55 It is not at all clear to me what both Brennan CJ and McHugh J meant when they referred to certiorari as being "ancillary". While often prohibition and certiorari will run in tandem in the sense that it will often be the case that the two forms of prerogative writs are applied for at the same time, strictly prohibition will lie only where there is something left to prohibit, whereas certiorari will lie only where something has been done which is to be quashed. Where both writs are sought in the one application it will usually be on the basis that certiorari is sought to quash the decision of a tribunal made in excess of jurisdiction and prohibition is sought to prevent that tribunal from continuing to exceed its jurisdiction. I see no reason in principle why certiorari could not be granted by the Court in exercising its accrued jurisdiction provided that it does so in the resolution of a matter in respect of which jurisdiction is conferred upon it by the Commonwealth Parliament.
56 The question is probably academic in the present case. Here, there is a case where a writ of prohibition should issue against the Officer restraining her from giving effect to the decision of the Magistrate. To the extent that certiorari is ancillary to a writ of prohibition, certiorari should be granted to quash the order of the Magistrate. It is necessary that the order be quashed because it will be appropriate that Mrs Klewer be tried again for the offence which is alleged against her. The outcome of this case is not that Mrs Klewer has been acquitted of that offence, it is merely that the order made by the Magistrate was infected with error by reason of the failure of the Magistrate to disqualify himself.