PLAINTIFF: It's very kind of you, your Honour. I apologise for the misunderstanding."
7 After hearing submissions from the plaintiff, the first defendant refused to vary the determination made by the Registrar. His reasons were stated as follows:
"Let me say that your approach to the matter that I have to decide in this case is appropriate and you put the matter very succinctly and very properly, setting out all your facts and then the reason why you say the notice should issue, but in my view, and I have not only heard you tell me what the facts are, I read them in your statement that was handed to the Registrar, the two issues that are raised by the facts that you put before the Registrar and now the Court are firstly, the admissibility or otherwise of evidence in the criminal trial, and that has been had. And secondly, the veracity or otherwise of that conviction. These are not matters in my view which would substantiate the issue of a court attendance notice, information as it was before 7 July but a court attendance notice to bring the person Laidlaw before the Court to answer the charge. In my view the application is vexatious and certainly would have no reasonable prospect of success if brought before the Court. I refuse to issue your court attendance notice."
8 The plaintiff appears to have prepared his summons without the assistance of legal representation. At the commencement of the hearing Mr Spartalis, who appeared on behalf of the second defendant, sought clarification of whether the plaintiff was seeking to bring an appeal against the first defendant's determination or whether he was claiming orders in the nature of prerogative relief.
9 It is not asserted that the proceedings are an appeal under the Crimes (Local Court Appeals and Review) Act 2001 or otherwise. Rather, the plaintiff asserted that he was seeking relief in the nature of certiorari and mandamus. He claims orders pursuant to the powers conferred on the Court by s 69 of the Supreme Court Act 1970.
10 I have been assisted by written submissions prepared by Mr Spartalis, touching on the circumstances in which the Court in the exercise of discretion would grant relief in the nature of certiorari and mandamus. In the view I take of the matter it is not necessary to consider the principles at any length.
11 In written submissions the plaintiff relied on two submissions identified as argument 1 and argument 2. The first can be dealt with briefly in the light of a concession made by the plaintiff. It is necessary to return to the correspondence, Exhibit B. The letter dated 3 July 2003 states that the author seeks to bring charges against certain individuals under s 319 of the Crimes Act 1900 and that he was preparing a statement of facts. This was to be sent to the Court by facsimile later in the week.
12 The second letter transmitted on 4 July 2003 states "I enclose a detailed indictment for consideration by you as soon as possible. I am in a position to shortly prepare a brief of evidence against the offender and submit the same for the consideration of the Court."
13 The mechanism for commencing criminal proceedings charging an indictable offence in the Local Court changed following the repeal of the Justices Act 1902 and the consequential amendments to the Criminal Procedure Act 1986 (the CPA) and the introduction of the Rule. The date of commencement of the new scheme was 7 July 2003.
14 Prior to that date the procedure for a private informant to commence proceedings alleging the commission of an indictable offence, was to lay an information in accordance with the provisions of s 22 of the Justices Act.
15 Section 174 of the CPA provides that if a person other than a police officer or public officer is authorised to commence proceedings for an offence against a person, the person may commence the proceedings by issuing a court attendance notice signed by a Registrar, and filing the notice in accordance with the provisions of Div 1 Pt 2 of that Act.
16 Pursuant to s 174(2) of the CPA a Registrar must not sign a court attendance notice if he or she is of the opinion that it does not disclose grounds for the proceedings or it is not in the form required by the Act or that a ground for refusal set out in the Rules applies to it.
17 Clause 57 of the Rule requires the Registrar not to sign a court attendance notice, in proceedings commenced by a person other than a police officer or a public officer, if he or she is of the opinion that the proceedings are frivolous, vexatious, without substance or have no reasonable prospects of success.
18 It is the plaintiff's submission that by sending the document "MHP1" by facsimile addressed to the Chamber Magistrate, Downing Centre Local Court, he had laid an information pursuant to the provisions of the Justices Act. In his submission the first defendant misconceived the nature of his jurisdiction in that he wrongly considered that he was reviewing the determination not to sign a court attendance notice under the Rule. In the plaintiff's submission the correct analysis was that the first defendant was reviewing the failure of the Registrar to receive and act upon an information duly laid in accordance with the provisions of the Justices Act.
19 There seem to me to be a number of difficulties with this contention, not the least of which is that the proceedings before the first defendant were a review brought under cl 61 of the Rule. In oral submissions the plaintiff sought to contend that there was a right of review under the Justices Act with respect to the failure of a Chamber Magistrate to take action upon an information being laid before him or her. No provision of the Justices Act conferring such a right of review was identified.
20 I am not persuaded that the transmission of the document "MHP1" by facsimile to the Local Court constituted laying an information before a justice within the meaning of the Justices Act (as it then stood): Electronic Rentals Pty Ltd v Anderson [1970-1971] 124 CLR 27 per Windeyer J (with whom Barwick CJ agreed) at 39.
21 The plaintiff realistically conceded in the course of oral submissions that the evidence fell short of establishing that any document that may have been transmitted to the Local Court on 4 July 2003 was in fact received by the Chamber Magistrate or Registrar of the Court. To my mind that disposes of the first contention.
22 I turn now to the second argument upon which the plaintiff relied. There are two aspects to it. Firstly, the plaintiff submitted that procedural fairness required that when the matter was called on for hearing on 15 July 2003 the first defendant adjourn the hearing in order to afford him an opportunity to place further evidence before the Court. The plaintiff pointed to the circumstance that Magistrate Orchiston had stood over his application for review for a fortnight but that in the event it had proceeded on 15 July 2003 before the first defendant.
23 I have set out the transcript of the exchange between the plaintiff and the first defendant which explains the circumstances in which the review came on for hearing. The plaintiff made no application that the proceedings be adjourned.
24 The plaintiff submitted that it had been incumbent on the first defendant to stand the proceedings over for a period when it became clear to him that the evidence was insufficient to justify the issue of a court attendance notice. The contention that there was an obligation on the first defendant to identify the need for further evidence in the plaintiff's case and to adjourn the proceedings for the evidence to be obtained is to misunderstand the nature of the first defendant's role. It was not his Honour's function to decide whether the plaintiff's application would be improved by further or other evidence.
25 There is in my view no basis for the contention that the plaintiff was denied procedural fairness by reason of the review being heard and determined on 15 July 2003.
26 The second aspect of the challenge is that the first defendant did not properly apply himself to the question that he was required to determine. The plaintiff relied on Saffron v DPP (1989) 16 NSWLR 397 per Priestley JA (with whom Samuels JA agreed) summarising the approach of Jordan CJ in Ex parte Hebbern at 418:
"However, as I commented earlier, it may not matter whether or not I agree with the magistrate's conclusions on the DPP's circumstantial case. This is because of the nature of the proceedings in which Carruthers J reviewed what the magistrate had done. As Carruthers J mentioned, the appropriate form of relief in such proceedings, if relief were to be granted, would be an order in the nature of mandamus pursuant to the Justices Act, s 134. As also pointed out by Carruthers J such relief could only be granted if it appeared that the magistrate had not really performed the duty imposed upon him by the statutory provision under which he was acting, in this case the Justices Act, s 41(6). In a decision which has been many times followed in this Court, Ex parte Hebburn Ltd; Re Kearsley Shire Council (1947) 47 SR (NSW) 416; 64 WN (NSW) 107, Jordan CJ illustrated the difference between a real, although possibly mistaken, performance by a magistrate of the duty imposed on him and a performance of that duty which was not relevantly real, called by him a constructive failure to exercise jurisdiction. He made two principal points (at 420; 109).
1. A magistrate may make a mistake of law, even as to the proper construction of a statute without constructively failing to exercise jurisdiction.
2. A mistake of law as to the proper construction of the statute investing a magistrate with jurisdiction which leads the magistrate to misunderstand the nature of the jurisdiction so that (i) he applies a wrong and inadmissible test or (ii) misconceives his duty or (iii) does not apply himself to the question which the law prescribes or (iv) misunderstands the nature of the opinion he must form, will make the magistrate's decision one given in a purported and not a real exercise of jurisdiction."
27 The plaintiff submitted that the first defendant wrongly took into account the circumstance that he had been convicted of offences arising out of the matters set out under the heading "Full facts" in "MHP1". In this respect he drew attention the first defendant's remarks that I have set out at [7] above and in particular to the observation, "the veracity or otherwise of that conviction."
28 The plaintiff submitted that "MPH1" alleges the commission of a serious indictable offence contrary to s 319 of the Crimes Act 1900 and contained a statement of the particulars of the offence that, if true, could not be said to be a prosecution that was frivolous, vexatious, without substance or having no reasonable prospect of success.
29 The scheme for the commencement of private prosecutions under s 174 of the CPA and cl 57 of the Rule is such as to require that a Registrar give consideration to whether the proceedings are frivolous, vexatious, without substance or having no reasonable prospect of success. The Registrar is constrained not to sign a court attendance notice if of the opinion that the proceedings answer any of those descriptions. The Registrar is to have regard to the information that is before him in the court attendance notice in making a determination whether to sign it.
30 The Magistrate was exercising a power conferred by cl 61 of the Rule to review the Registrar's action in declining to sign the court attendance notice. Accepting for present purposes that "MHP1" constituted a court attendance notice for the purposes of s 175 of the CPA, I am not persuaded that his Honour applied any wrong principle in taking into account the particulars of the alleged offence set out in "MHP1".
31 I am not persuaded that the plaintiff has shown that the first defendant misunderstood the nature of his jurisdiction in any of the ways identified in Saffron in the passage to which I have referred.
32 I consider that the plaintiff has not made good a claim for relief in the nature of mandamus certiorari or otherwise. For these reasons I dismiss the plaintiff's amended summons. I direct that the plaintiff is to pay the defendant's costs.
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