Moore v Commonwealth Director of Public Prosecutions

Court of Appeal (NSW)|2023-03-10|Before: White JA, Chen J, Legislation Amendment J

The hearing and further submissions on jurisdiction

The application for leave to appeal was heard on 10 March 2023. Mr Moore represented himself. Mr Shariff SC appeared for the CDPP. Mr Moore made lengthy oral submissions in support of his leave application. The CDPP was generally content to rely on its outline of written submissions.
There was a lengthy exchange with the Court on the issue of the basis of the Court's jurisdiction below. This resulted in the parties being given an opportunity to file supplementary written submissions on this issue. The Court ordered that the CDPP, within 28 days, provide written submissions in relation to the jurisdiction of the Supreme Court to determine Mr Moore's First Cross-Summons, particularly having regard to ss 39B(1), (1A)(c) and (1C)(a) and (d) of the Judiciary Act 1903 (Cth) and the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act), together with a short note on costs. Mr Moore was given 14 days after the service of the CDPP's submissions to provide any submissions in response. The Court directed that the matter would then be determined on the papers, based on the parties' written and oral submissions. On 5 April 2023 the CDPP sought an extension of four weeks to provide further submissions. This extension of time was granted. On 3 May 2023 Mr Moore sought an extension of time, such that he be given 28 days after the service of the CDPP's submission to file any response. This extension of time was granted.

Jurisdiction of the Supreme Court

At PJ[75]-[77], Chen J addressed the issue of the Court's jurisdiction to determine the proceeding, having regard to the operation of some complex provisions primarily in the Judiciary Act and the Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth) (Cross-vesting Act). His Honour noted the CDPP's submission that, while its primary position was that the Supreme Court lacked jurisdiction, it was at least possible for jurisdiction to be conferred upon the Supreme Court in relation to the actions of a Commonwealth officer, via what was described as a "circuitous route" under the Cross-vesting Act. Adopting the approach urged upon him by the CDPP, his Honour concluded at PJ[77] that, because he had determined that the proceedings should summarily be dismissed, "it is unnecessary to determine whether jurisdiction could be conferred in the way the CDPP suggested".
With great respect to the primary judge, the issue of jurisdiction had to be determined at the outset. As the Court stated in Zhang v Zemin (2010) 79 NSWLR 513; [2010] NSWCA 255 at [39]-[40]: 39 The determination of whether or not it has jurisdiction has been described as the "first duty" of a court. (See Federated Engine Drivers and Firemen's Association of Australasia v Broken Hill Pty Co Ltd (1911) 12 CLR 398 at 415 per Griffith CJ.) That case involved a legislative scheme providing for a jurisdictional fact. As Isaacs J said in that context at 454: "What [the court] has to do at the outset is to satisfy its mind that it is not overstepping the bounds which Parliament has laid down for it." 40 To similar effect are the observations of Barton J when he said at 428: "Where the jurisdiction is disputed, adequate and careful inquiry is still the duty of the superior Court. On the other hand, where the jurisdiction is not contested by the party defending, very slight inquiry may be adequate, and many cases will to the mind of the tribunal be so plainly within its competence that it will rightly forego inquiry unless the objection is taken, and the objector tenders proof of facts in its support."
The issue of jurisdiction was sufficiently disputed by the CDPP below to require the issue to be determined. The issue is far from straightforward.
As noted above, the parties were invited in this Court to provide post-hearing supplementary submissions on the subject. Their submissions may be summarised as follows.

(a) CDPP's submissions on jurisdiction and costs summarised

The CDPP's written submissions dated 4 May 2023 were signed by Mr P D Herzfeld SC and Ms E S Jones. Those submissions drew a distinction between the relief sought in prayers 1 and 2 of the First Cross-Summons and the other prayers (see [11] above). I shall summarise the CDPP's submissions on jurisdiction at greater length than normal because they are persuasive and should be accepted.
As to prayers 1 and 2, the CDPP submitted that jurisdiction was conferred on the Supreme Court to determine the First Cross-Summons by the combined operation of s 39B(1) of the Judiciary Act and s 4(1) of the Cross-vesting Act. After noting that the effect of s 38(e) of the Judiciary Act is to deprive the Supreme Court of jurisdiction in matters in which the High Court has exclusive jurisdiction, the CDPP submitted that, if the Federal Court has jurisdiction, then s 4(1) of the Cross-vesting Act operated to invest the Supreme Court with federal jurisdiction in relation to the whole matter.
The CDPP submitted that the Federal Court had jurisdiction under s 39B(1) of the Judiciary Act and there is nothing in s 39B(1A)(c) which operated to displace that jurisdiction.
It is desirable to set out the relevant terms of ss 39B(1), (1A), (1B) and (1C) of the Judiciary Act, which confer original jurisdiction on the Federal Court in respect to certain matters. Section 39B Original jurisdiction of the Federal Court of Australia Scope of original jurisdiction (1) Subject to subsections (1B), (1C) and (1EA), the original jurisdiction of the Federal Court of Australia includes jurisdiction with respect to any matter in which a writ of mandamus or prohibition or an injunction is sought against an officer or officers of the Commonwealth. (1A) The original jurisdiction of the Federal Court of Australia also includes jurisdiction in any matter: (a) in which the Commonwealth is seeking an injunction or a declaration; or (b) arising under the Constitution, or involving its interpretation; or (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. Note: Paragraph (c) does not prevent other laws of the Commonwealth conferring criminal jurisdiction on the Federal Court of Australia. Jurisdiction for certain writs that relate to criminal prosecutions etc. (1B) If a decision to prosecute a person for an offence against a law of the Commonwealth, a State or a Territory has been made by an officer or officers of the Commonwealth and the prosecution is proposed to be commenced in a court of a State or Territory: (a) the Federal Court of Australia does not have jurisdiction with respect to any matter in which a person seeks a writ of mandamus or prohibition or an injunction against the officer or officers in relation to that decision; and (b) the Supreme Court of the State or Territory in which the prosecution is proposed to be commenced is invested with, or has conferred on it, jurisdiction with respect to any such matter. (1C) Subject to subsection (1D), at any time when: (a) a prosecution for an offence against a law of the Commonwealth, a State or a Territory is before a court of a State or Territory; or (b) an appeal arising out of such a prosecution is before a court of a State or Territory; the following apply: (c) the Federal Court of Australia does not have jurisdiction with respect to any matter in which the person who is or was the defendant in the prosecution seeks a writ of mandamus or prohibition or an injunction against an officer or officers of the Commonwealth in relation to a related criminal justice process decision; (d) the Supreme Court of the State or Territory in which the prosecution or appeal is before a court is invested with, or has conferred on it, jurisdiction with respect to any such matter.
The CDPP submitted that, for the following reasons, the matter which is the subject of the First Cross-Summons prima facie falls within the terms of s 39B(1) and no other part of s 39B relevantly qualifies those terms.
First, this is because even if this were "a matter in respect of which a criminal prosecution is instituted or any other criminal matter" within the meaning of the concluding words of s 39B(1A)(c), that express limitation of s 39B(1A)(c) does not limit or otherwise bear upon the conferral of jurisdiction in s 39B(1). Section 39B(1A) is a source of jurisdiction additional to and separate from s 39B(1). This is made clear by the word "also" in s 39B(1A) and by the omission of s 39B(1A) from the opening words of s 39B(1), which otherwise specify the ways in which s 39B(1) is limited by the other subsections of s 39B.
Secondly, in any event, the matter is not "a matter in respect of which a criminal prosecution is instituted" or another "criminal matter" within the meaning of the concluding words of s 39B(1A)(c).
Section 39B(1A) was enacted in 1997 without the closing words of limitation in the current form of para (c). On enactment, para (c) simply provided that the Federal Court had original jurisdiction in "any matter … arising under any laws made by the Parliament". In 1999, the words of limitation were added to the end of para (c). The explanatory memorandum for the amending legislation (the Law and Justice Legislation Amendment Act 1999 (Cth), Sch 10) recorded: The amendment to subsection 39B(1A) expressly excludes the conferral of criminal jurisdiction on the Federal Court, except where that jurisdiction is conferred upon the Court by some other Commonwealth statute. The purpose of the amendment is to ensure that a litigant cannot seek to use section 39B(1A) to bring a private prosecution before the Federal Court, or to include a criminal matter as an element of a civil case in which the Federal Court has jurisdiction.
The meaning of "criminal matter" in s 39B(1A)(c) was considered by the Full Court of the Federal Court in The Commonwealth v Lyon (2003) 133 FCR 265; [2003] FCAFC 284. The Full Court adopted a narrow construction of the phrase "in respect of" in s 39B(1)(c). The Commonwealth had sought declarations and orders to establish its entitlement to claim public interest immunity in respect of some documents which had been inadvertently disclosed in the course of committal proceedings.
Relevantly, the Full Court identified the "matter" in those proceedings as being "a real controversy between the parties as to the entitlement of the Commonwealth to protect the confidentiality of the contentious material" (at [29]). Of this matter, the Court said: "No criminal prosecution has been instituted in respect of the matter identified" (at [47]). The relatively narrow approach to the words "in respect of" is apparent.
At [48] and [50], the Full Court concluded that the matter was not "any other criminal matter" within sub-s 39B(1A)(c): The … question involves the proper construction of par 39B(1A)(c) of the Judiciary Act. There is no authority which bears directly on the meaning of the expression 'criminal matter' in par 39B(1A)(c). The traditional understanding of what constitutes a criminal matter was expressed by Viscount Simon LC in Amand v Home Secretary [1943] AC 147 at 156 where his Lordship said: '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.' … The context provided by Part VI of the Judiciary Act, which is comprised of ss 38‑39B, and the slightly more remote context provided by Part X of the Act, supports the conclusion that the expression 'criminal matter' is used in par 39B(1A)(c) with its traditional meaning. It seems clear that the legislature did not consider that the purpose intended to be achieved by rendering s 39B(1) subject to the qualifications expressed in subsections (1B) and (1C) could be achieved by simply excluding any criminal matter from the jurisdiction conferred by s 39B(1). The conclusion that the expression 'criminal matter' is used in the Judiciary Act in its traditional sense is confirmed by Part X of the Act which itself reflects a traditional understanding of what constitutes a criminal matter.
The CDPP pointed out that the Federal Court has not treated the words of limitation in s 39B(1A)(c) as excluding its jurisdiction in various matters which arise in the context of potential or actual criminal proceedings, or in relation to criminal conduct. For example, proceedings seeking review of decisions in connection with search warrants (prior to a prosecution being commenced) have been brought in reliance on s 39B(1A)(c) (see Construction, Forestry, Mining and Energy Union v Commissioner of the Australian Federal Police (No 2) [2016] FCA 833 at [9] and Kennedy v Baker (2004) 135 FCR 520; [2004] FCA 562 at [9]-[11]).
In Helicopter Resources Pty Ltd v The Commonwealth (2019) 264 FCR 174; [2019] FCAFC 25 at [29], [32], [34], the Full Court was satisfied that it had jurisdiction to entertain an application for prohibition against the Coroner's Court of the Australian Capital Territory seeking to restrain it from requiring certain persons to give evidence in an inquest prior to the finalisation of a prosecution. In Hanson v Burston [2022] FCA 1234 at [54]-[55], [88]-[89], [91], Bromwich J determined that s 39B(1A)(c) did not preclude the Court from determining a civil cause of action defined by reference to criminal conduct. His Honour referred to Lyon and concluded that there was no criminal matter because the Court was not "called upon to adjudicate upon criminal conduct, nor exercise criminal jurisdiction which it does not have, nor consider the imposition of criminal sanctions" (at [91]).
Thus even if the words of limitation in s 39B(1A)(c) were to be understood as operating to exclude jurisdiction otherwise conferred by s 39B(1), that exclusion would not operate here. The matter comprising the challenge to the CDPP's decision to decline to proceed with prosecutions did not constitute "a matter in respect of which a criminal prosecution is instituted or any other criminal matter". The matter, being the controversy between the parties as to the validity of the CDPP's decision, is not one "in respect of which" a criminal prosecution had been instituted. That is so even though the decisions factually rose out of criminal prosecutions. Nor is the challenge to the CDPP's decision "any other criminal matter". The Supreme Court (as opposed to the Local Court) was not asked to adjudicate criminal liability or to impose punishment for criminal conduct.
Thirdly, the jurisdiction conferred on the Federal Court by s 39B(1) to determine the First Cross-Summons was not excluded by s 39B(1B) or (1C).
Those provisions were enacted in 2000 (Jurisdiction of Courts Legislation Amendment Act 2000 (Cth), Sch 2), with the object - explained in the second reading speech - of avoiding "the use of unmeritorious delaying tactics in the criminal justice process by removing the 'collateral' access of defendants to federal administrative law procedures and remedies" in the Federal Court. The second reading speech continued: defendants in State and Territory courts will not be able to rely on section 39B of the Judiciary Act to bring an application in the Federal Court to review decisions of Commonwealth officers made in the prosecution process. The 39B jurisdiction will in that case be removed from the Federal Court and conferred on State and Territory Supreme Courts. … If the 39B jurisdiction in relation to prosecutions in state and territory courts were not removed from the Federal Court, and conferred instead on State and Territory Supreme Courts, the opportunity to disrupt and delay those prosecutions by repeated, unmeritorious applications to a different court system - in this case the Federal Court system - would remain.
Section 39B(1B) has no application here because, in the CDPP's submission, there was no "prosecution … proposed to be commenced in a court of a State or Territory" in light of the CDPP's decision not to prosecute. The chapeau makes clear that s 39B(1B) is concerned with writs brought in connection with forthcoming prosecutions, as opposed to prosecutions which have been discontinued.
In Phong v Attorney-General of the Commonwealth (2001) 114 FCR 75; [2001] FCA 1241 at [67]-[68], Hely J (with whom Black CJ agreed) said: On a literal reading, s 39B(1B) is capable of being confined in its operation to the period in which a prosecution in a court of a State or Territory "is proposed to be commenced", such that the operation of the section is spent on the commencement of the prosecution. But such a construction of the section would not promote the purpose or object underlying the Act as expressed so clearly in the Second Reading Speech in the extracts quoted above. Rather the section should be construed on the basis that once a decision to prosecute has been made by an officer of the Commonwealth and the prosecution is proposed to be commenced in a court of a State or Territory, then thereafter the jurisdiction referred to in s 39B(1B)(a) is conferred on the Supreme Court of the State or Territory in which the prosecution is proposed to be commenced to the exclusion of what would otherwise have been the jurisdiction of the Federal Court in that regard. That position continues notwithstanding the institution of the prosecution in the State or Territory concerned.
Nothing in those reasons or in the terms of s 39B(1B) supports the view that the limitation on jurisdiction continues after a prosecution in a State or Territory court is terminated. It is also well to bear in mind the general proposition that a conferral of jurisdiction on a court is not readily to be cut down, so submitted the CDPP.
In addition, the CDPP submitted that the phrase "a decision to prosecute" refers only to an affirmative decision to bring or institute a prosecution. The concluding words of s 39B(1B)(a) refer back to that decision. The "matter" referred to in that sub-paragraph, with respect to which the Federal Court is deprived of jurisdiction, is thus one in which there is a challenge to "a decision to prosecute" and it is to that kind of matter that the concluding words of s 39(1B)(b) refer. It is only where a person seeks a writ of mandamus or prohibition, or an injunction, in relation to an affirmative decision to prosecute that the Federal Court is deprived of jurisdiction and the Supreme Court is invested with jurisdiction. The words "a decision to prosecute" do not comprehend a decision not to prosecute. A prosecution could not be "proposed to be commenced" in circumstances where a decision to decline to prosecute "has been made" as is the case here.
To sum up, the CDPP's position (which should be accepted) was that s 39B(1B) did not apply here for two reasons: 1. there was, at the time of the proceedings before the Supreme Court, no prosecution "proposed to be commenced in a court of a State or Territory"; and 2. there was no challenge by the applicant to a "decision to prosecute" made by a Commonwealth officer.
The CDPP then submitted that nor did s 39B(1C) apply. When the First Cross-Summons was determined, no prosecution, nor appeal arising out of a prosecution, was extant for the purposes of s 39B(1C)(a) and (b). In any event, the First Cross-Summons was not brought by a "person who is or was the defendant in the prosecution" in the terms of s 39B(1C)(c). The applicant was the initial prosecutor in the proceedings in respect of which the impugned decisions were made. While the applicant was the defendant in a previous prosecution, those proceedings were finalised well before the First Cross-Summons was filed. The proceedings for judicial review could not be considered an appeal in relation to the prosecution of the applicant. Because the controversy raised by the First Cross-Summons did not answer the description of the "matter" outlined in s 39B(1C)(c), the Federal Court was not deprived of jurisdiction by that paragraph. Nor was the Supreme Court invested with jurisdiction, for the "matter" referred to in s 39B(1C)(d) must be the "matter" described in s 39B(1C)(c).

Jurisdiction with respect to the remaining prayers

Once it is concluded that the Federal Court had jurisdiction with respect to prayers 1 and 2 of the First Cross-Summons, and that the Supreme Court was invested with equivalent jurisdiction by s 4(1) of the Cross-vesting Act, the CDPP submitted (correctly) that the Supreme Court's jurisdiction with respect to prayers 3-6 in the First Cross-Summons readily follows. Each claim was evidently part of the one "matter" (see Fencott v Muller (1983) 152 CLR 570; [1983] HCA 12 at 608 per Mason, Murphy, Brennan and Deane JJ; Re Wakim; Ex parte McNally (1999) 198 CLR 511; [1999] HCA 27 at [140] per Gummow and Hayne JJ). None engaged any of the limitations canvassed above.

Special federal matter

As the Supreme Court was invested with jurisdiction by s 4(1) of the Cross-vesting Act, the CDPP submitted (correctly) that the matter was a "special federal matter" within the meaning of s 3(1) of that Act. That is because it was a matter within the original jurisdiction of the Federal Court by reason of s 39B of the Judiciary Act, in respect of which the Supreme Court would not, apart from the Cross-vesting Act, have jurisdiction.
Section 6 of the Cross-vesting Act makes clear that the Supreme Court has jurisdiction to determine a special federal matter, albeit that the Supreme Court is obliged, by ss 6(1) and (3), to consider whether to transfer the proceedings to the Federal Court and, by s 6(4), to provide notice to the relevant Attorneys-General if proposing to determine the matter (see, eg, Hardwick v Federal Commissioner of Taxation [2015] NSWSC 1557 at [61]-[63]). The primary judge did not, and was not asked to, take those steps.
However, s 6(9) makes clear that the fact that the primary judge did not make such an order under s 6(3) or give notice under s 6(4) does not invalidate his Honour's decision (see Truthful Endeavour Pty Ltd v Condon (2015) 233 FCR 174; [2015] FCAFC 70 at [23]; Penson v Palmer [2018] FCA 1202 at [19]).
It follows that the failure to take the steps required by ss 6(3) and 6(4) of the Cross-vesting Act did not deprive the Supreme Court of jurisdiction by operation of s 4(1) of the Cross-vesting Act.

ADJR Act

Turning to the ADJR Act, the CDPP accepted that, if jurisdiction was conferred on the Federal Court by ss 5 and 8 of that Act, s 4(1) of the Cross-vesting Act would have invested the Supreme Court with like jurisdiction. The matter would have been a special federal matter and the submissions above by the CDPP on that topic would apply. However, for the following reasons, the CDPP submitted (correctly) that jurisdiction was not conferred on the Federal Court by the ADJR Act.
Schedule 1 to the ADJR Act specifies certain classes of decision to which the Act does not apply. Paragraph (xa) of Sch 1 specifies: (xa) decisions to prosecute persons for any offence against a law of the Commonwealth, a State or a Territory Note: An application under this Act in relation to other criminal justice process decisions cannot be heard or determined in certain circumstances: see section 9A.
Section 9A relevantly provides: (1) Subject to subsection (2), at any time when: (a) a prosecution for an offence against a law of the Commonwealth, a State or a Territory is before any court; or (b) an appeal arising out of such a prosecution is before any court; no court has jurisdiction to hear, continue to hear or determine an application under this Act, by the person who is or was the defendant in the prosecution, in relation to a related criminal justice process decision. (2) Subsection (1) does not apply if an applicant has commenced an application under this Act before the commencement of a prosecution for an offence against a law of the Commonwealth, or of a State or a Territory. … (4) In this section: appeal includes an application for a new trial and a proceeding to review or call in question the proceedings, decision or jurisdiction of a court or judge. related criminal justice process decision, in relation to an offence, means: (a) a decision (other than a decision to prosecute) made in the criminal justice process in relation to the offence, including: (i) a decision in connection with the investigation, committal for trial or prosecution of the defendant; and (ii) a decision in connection with the appointment of investigators or inspectors for the purposes of such an investigation; and (iii) a decision in connection with the issue of a warrant, including a search warrant or a seizure warrant; and (iv) a decision requiring the production of documents, the giving of information or the summoning of persons as witnesses; and (v) a decision in connection with an appeal arising out of the prosecution; or (b) a decision of the Attorney-General to give a certificate under section 26 or 28 of the National Security Information (Criminal and Civil Proceedings) Act 2004 before or during a federal criminal proceeding (within the meaning of that Act) in relation to the offence.
The CDPP submitted that s 9A did not apply to the First Cross-Summons because: 1. at the time the Supreme Court proceedings were commenced, there was no prosecution for an offence before any court (s 9A(1)(a)); and 2. the application was not made "by the person who is or was the defendant in the prosecution" (s 9A(1)).
Accordingly, s 9A did not exclude any jurisdiction arising under the ADJR Act.
However, for the following reasons, the CDPP submitted (correctly) that jurisdiction was excluded by para (xa) of Sch 1. The reference therein to "decisions to prosecute" should be understood to include decisions whether to prosecute.
First, para (xa) of Sch 1 and s 9A of the ADJR Act were introduced in 2000, at the same time as ss 39B(1B) and (1C) of the Judiciary Act (see Jurisdiction of Courts Legislation Amendment Act 2000 (Cth), Sch 2). There were earlier authorities to support the availability of review under the ADJR Act in respect of decisions to institute a prosecution, although it remained open to courts to decline to review such decisions in the exercise of their discretion.
Notwithstanding that "a decision to prosecute" in the context of a prosecution "proposed to be commenced" in s 39B(1B) of the Judiciary Act ought to be construed as referring only to an affirmative decision to initiate the prosecution (see [40]-[46]), the CDPP submitted that para (xa) of Sch 1 to the ADJR Act should be understood more broadly as extending to decisions whether to prosecute. The context for the use of the words "decisions to prosecute" in para (xa) is significantly different. There are no temporally limited words, such as "proposed to be commenced", which support a narrower construction. Conversely, if "decisions to prosecute" in para (xa) does not encompass decisions relating to charge selection (which are in substance decisions to prosecute for one offence rather than another) and/or declining to proceed with some or all charges, the exclusion in para (xa) could be rendered ineffective or arbitrary. For example, if review could be sought (subject to s 9A) of a decision to decline to proceed with a particular charge, the exclusion of review in respect of the decision to proceed with another charge would be of limited or no utility. Such a distinction is also unlikely in light of the apparent legislative intention to restrict review of decisions made in the criminal justice process.
The CDPP submitted that this construction is not displaced even though s 9A(4) defines the expression "related criminal justice process decision" in an even broader way. The critical point is that "a decision to prosecute" is carved out of the ADJR Act entirely by para (xa) of Sch 1.
To exclude review of decisions to decline to prosecute, along with decisions to institute a prosecution, would also be more consistent with the position at common law which the 2000 amendments were intending to replicate. In Maxwell v The Queen (1996) 284 CLR 501; [1996] HCA 46 at 534, Gaudron and Gummow JJ explained that position in the following way (citations omitted; emphasis added): The power of the Attorney-General and of the Director of Public Prosecutions to enter a nolle prosequi and that of a prosecutor to decline to offer evidence are aspects of what is commonly referred to as "the prosecutorial discretion". … It ought now be accepted, in our view, that certain decisions involved in the prosecution process are, of their nature, insusceptible of judicial review. They include decisions whether or not to prosecute, to enter a nolle prosequi, to proceed ex officio, whether or not to present evidence and, which is usually an aspect of one or other of those decisions, decisions as to the particular charge to be laid or prosecuted. The integrity of the judicial process - particularly, its independence and impartiality and the public perception thereof - would be compromised if the courts were to decide or were to be in any way concerned with decisions as to who is to be prosecuted and for what.
The reasoning in the passage extracted above was applied by Gummow, Hayne, Crennan, Kiefel and Bell JJ in Likiardopoulos v The Queen (2012) 247 CLR 265; [2012] HCA 37 at [37].
The CDPP's decisions that were challenged in the First Cross-Summons were decisions to decline to proceed with certain prosecutions. That kind of decision is encompassed within the reference in para (xa) of Sch 1 to "decisions to prosecute" which, by virtue of that paragraph, are decisions that are not reviewable under the ADJR Act. Accordingly, jurisdiction to determine the First Cross-Summons was not conferred by the ADJR Act.

Costs

The CDPP submitted that the application for leave to appeal should be dismissed with costs, save as to those costs relating to the issue of the Supreme Court's jurisdiction. Each party should bear its own costs of that issue.

(b) The applicant's submissions on jurisdiction and costs summarised

Mr Moore provided post-hearing submissions dated 24 May 2023 on jurisdiction and on costs, together with a document headed "Index of Applicant's (additional) submissions document in support". The submissions set out a long list of Commonwealth legislation, only some of which were relevant to the issue of jurisdiction. In large part, the submissions reiterated background factual matters and repeated the applicant's substantive claims against the police. The submissions had little, if anything, to say about the Supreme Court's jurisdiction to determine the First Cross-Summons.
This may well reflect the fact that, as noted, Mr Moore is an unrepresented litigant and the issues concerning jurisdiction are complex and technical. On the issue of costs, Mr Moore submitted that he should be awarded costs.
By an email sent on Sunday 18 June 2023, Mr Moore provided a document entitled "Index to list of authorities on jurisdiction", which he said he also sent to the CDPP. He provided a lengthy list of primary and secondary legislation, together with a four-page document which contained extracts from various cases under the following topics "Jurisdiction: S 69 Supreme Court Act 1970 (NSW)"; "Laws; binding on all courts"; Federal Judiciary; Public interest/Trespass/Leave to appeal; Procedural fairness/Contempt of court/Summons", together with numerous other topics relating to substantive legal principles as opposed to jurisdiction.
In his covering email dated 18 June 2023, Mr Moore asked when the hearing of his summons seeking leave to appeal would take place.
He was reminded on 19 June 2023 that, as directed at the hearing on 10 March 2023, the matter was to be determined on the papers, based on the parties' written and oral submissions and without a further oral hearing (see at [16] above).
On 20 June Mr Moore stated that order 3 made on 10 March 2023 (which provided that the matter would be determined on the papers) was not part of the directions given to the parties. However, the transcript of the proceedings on 10 March 2023 shows clearly that the order was made in the course of the proceedings, in the presence of both parties.
I have taken into account the materials provided by Mr Moore on 18 June 2023, notwithstanding that they were provided outside the timetable described at [16] above.

Consideration and determination

It is convenient to address the following three matters in turn: 1. Jurisdiction of the Supreme Court; 2. Whether Mr Moore should have leave to appeal; and 3. Costs.

(a) Jurisdiction of the Supreme Court

I accept the CDPP's submissions (which are comprehensively summarised above) as to why the Supreme Court had jurisdiction to determine the First Cross-Summons. Consequently, this Court also has jurisdiction to hear and determine Mr Moore's application for leave to appeal. In brief, and for the reasons advanced by the CDPP: 1. The Supreme Court had jurisdiction to determine prayers 1 and 2 of the First Cross-Summons because of the combined operation of s 39B(1) of the Judiciary Act and s 4(1) of the Cross-vesting Act. 2. The jurisdiction conferred on the Federal Court by s 39B(1) of the Judiciary Act (and cross-vested to the Supreme Court under s 4(1) of the Cross-vesting Act) was not displaced by the words of limitation in s 39B(1A)(c) of the Judiciary Act, nor by the operation of ss 39B(1B) or (1C) of that Act. 3. Having jurisdiction to determine prayers 1 and 2 of the First Cross-Summons, the Supreme Court also had jurisdiction to determine Mr Moore's other claims raised in the First Cross-Summons because his claims were all part of the one "matter" in the sense explained in Fencott v Muller. 4. Because the Federal Court would not have had jurisdiction under the ADJR Act to determine the matter, s 4(1) of the Cross-vesting Act could not operate to vest jurisdiction in the Supreme Court under that potentially alternative route. 5. The matter, in which jurisdiction was vested in the Supreme Court via s 39B(1) of the Judiciary Act and s 4(1) of the Cross-vesting Act, is a "special federal matter" within the meaning of s 6(1) of the latter Act. Therefore, ss 6(3) and (4) of that Act are also engaged. Consistently with this Court's decision in Hopkins v Governor-General of Australia [2013] NSWCA 365; (2013) 280 FLR 49, even if the requirements in ss 6(3) and (4) were not fulfilled in the Court below that did not invalidate Chen J's decision (see 6(9) of the Cross-vesting Act). This Court however can and should ensure that those requirements are met, following the approach in Hopkins. 6. As to the requirement in s 6(3) of the Cross-vesting Act, there are special reasons for the matter to be determined by the Supreme Court because (as will shortly emerge) the claims made by Mr Moore under the First Cross-Summons are baseless, the claims relate to matters arising from the prosecution of charges in a State court and it is in the interests of justice that the claims be dismissed as soon as practicable. 7. Notification should now be given to the Commonwealth and State Attorneys-General as required by s 6(4) of the Cross-vesting Act.

(b) Should Mr Moore have leave to appeal?

I turn now to consider whether Mr Moore's proposed grounds of appeal have sufficient prospects to warrant the grant of leave. The proposed grounds are as follows: 1. His Honour erred in law as Mr Moore was denied procedural fairness. 2. His Honour erred in law as costs cannot be awarded to a party where one party (Mr Moore) has been denied procedural fairness. 3. His Honour erred in law by giving legal advice to the other party which amounted to bias against Mr Moore. 4. His Honour erred in law as his Honour stated that the decision to withdraw the Commonwealth offences was made by the CDPP and not by the Magistrate.
It is well settled that leave to appeal will ordinarily only be granted where there is an issue of principle, a question of general public importance or where it is reasonably clear that there has been an injustice in the sense of going beyond it being reasonably arguable that the primary judge erred (see, for example, Carolan v AMF Bowling Pty Ltd (t/as Bennetts Green Bowl) [1995] NSWCA 69 and Lee v New South Wales Crime Commission (2012) 224 A Crim R 94; [2012] NSWCA 262 at [12] per Bathurst CJ).
For the following reasons, none of the proposed grounds of appeal has sufficient prospects to warrant a grant of leave.

Ground 1: Procedural fairness/natural justice

The procedural fairness ground of appeal relates to the filing (or not filing) of a Court Book and a list of authorities. The Registrar in the Common Law Division had directed that the Court books were to be filed by 18 September 2022.

Failure to file application book

In July, the CDPP informed Mr Moore that it had been ordered to file and serve the application folder. Mr Moore filed his Court Books, Chronology and Book of Authorities on 4 August 2022. On 9 September the CDPP informed Mr Moore that, as he had filed a court book, it did not propose to file an application book. The CDPP notified the Court of this.
No unfairness arose from the CDPP not preparing an application folder. The CDPP's evidence consisted of an affidavit sworn 31 March 2022 by Christina Choi and Exhibit CDC-1. Both of these documents were included in the Court Book which the applicant prepared. Thus Mr Moore was not denied an opportunity to respond to the CDPP's evidence. He was given an opportunity by the primary judge to object to this material and no objection was made.

List of authorities

Mr Moore submits that he did not receive the CDPP's list of authorities, which amounted to a breach of procedural fairness and an "ambush".
The CDPP claims that it provided Mr Moore with a copy of its bundle of authorities before the hearing. In any event, Mr Moore did not complain about late, or electronic service of the list of authorities, during the proceedings before the primary judge.

Reference to ADJR Act

Mr Moore appears to submit that the ADJR Act was relied upon by the primary judge but that Mr Moore did not have any information or prior knowledge of it.
It is evident from the transcript that some reference was made by the primary judge to the ADJR Act. Significantly, however, there is no reference to that legislation in the primary judgment. There is no basis for the claim that the legislation played any role in his Honour's reasoning. Accordingly, there was no procedural unfairness.

Ground 2: Costs

Mr Moore submits that the CDPP failed to comply with its obligations in ss 56(3) and (4) of the Civil Procedure Act 2005 (NSW), namely to comply with directions and orders of the Court and to further the overriding purpose of civil proceedings.
Consequently, Mr Moore contends that the Court should have exercised its discretion as to costs, given the CDPP's non-compliance.
The primary judge's decision as to costs was made in the exercise of his discretion. Accordingly, Mr Moore must identify an error of the kind identified in House v The King (1936) 55 CLR 499; [1936] HCA 40. No such error has been identified. The proposed ground lacks arguable substance.

Ground 3: Actual or apprehended bias

The chambers of Chen J wrote to the CDPP on 21 September 2022 (and included Mr Moore on the email) noting that an affidavit which purported to have an exhibit attached did not contain the exhibit. The tipstaff to Chen J requested that the exhibit be provided to the Court.
Mr Moore submits that it was the parties' obligation to ensure that their documents were filed in compliance with the Registrar's orders, and that it was not the Court's function to provide administrative assistance and legal services.
Mr Moore has not presented an arguable case of actual or apprehended bias arising from these matters. Justice Chen's chambers were simply involved in a routine communication which was directed to facilitating the efficient conduct of the forthcoming hearing. The request to provide the exhibit played no role in the primary judge's reasoning.

Ground 4: Decision by the Magistrate or the CDPP

Mr Moore submits that the Magistrate erred in law as the CDPP had not effectively taken over all of the Commonwealth charges (in particular, the charges pursuant to s 41(1) of the Crimes Act 1914). Accordingly, Mr Moore submits, the prosecution of the s 41 charges remained with Mr Moore. He submits that when the Magistrate formally dismissed the charges concerning s 41 of the Crimes Act 1914, this was a decision of the Magistrate and not the CDPP because Mr Moore claims that the CDPP had not taken over those charges.
The transcript from the Local Court on 28 January 2022 records the following: CHOI: … The Director takes over the proceedings pursuant to s 9(5) of the Director of Public Prosecutions Act. HIS HONOUR: When you say, "the proceedings", is that each of the proceedings against each of the accused, Matthew Bolton, Kylie Endemi, Michelle McAlister, and Matthew Pawsey? CHOI: Only in relation to the Commonwealth offences under the Director of Public Prosecutions Act. The Commonwealth Director has power to take over the Commonwealth charges. The State DPP has been informed of these offences and Mr Moore was advised of the Senior PP's position. It will be a matter for Mr Moore to request the State DPP to take over the State charges and in the meantime, the CDPP has forwarded them a copy of the briefs of evidence in relation to Ms Endemi and Ms McAlister.
The letter dated 22 January 2022 from the CDPP to Mr Moore notes: Accordingly, I have made a decision pursuant to s 9(5) of the Director of Public Prosecutions Act 1983 (Cth), to take over and discontinue the prosecutions instituted by you against Kylie Endemi, Matthew Bolton, Matthew Pawsey and Michelle McAlister for the Commonwealth charges.
It is significant to note that Mr Moore was informed that the CDPP had taken over all the prosecutions instituted by him against the four officers in relation to the Commonwealth charges.
There are two fundamental difficulties with this proposed ground of appeal. First, contrary to Mr Moore's summary of argument, it is clear from the CDPP's letter dated 27 January 2022 that the CDPP had taken over all Commonwealth charges in relation to the four police officers, which necessarily includes the charge relating to s 41. The prosecution of that charge did not remain with Mr Moore.
Secondly, this ground proceeds on the false premise that the Magistrate's decision dismissing the charges was a decision which itself was amenable to judicial review, as opposed to the decision of the CDPP to withdraw the charges. Given that the relevant charges were all laid under the Crimes Act 1914, an Act of the Commonwealth, section 79(1) of the Judiciary Act operates to pick up the laws of NSW relating to "procedure, evidence, and the competency of witnesses", and accordingly the Criminal Procedure Act 1986 (NSW) applies.
Section 208 of the Criminal Procedure Act provides the following (emphasis added): 208 Dismissal of matter if matter withdrawn (1) If a matter is withdrawn by the prosecutor, the matter is taken to be dismissed and the accused person is taken to be discharged in relation to the offences concerned (2) The dismissal of a matter because of its withdrawal by the prosecutor does not prevent any later proceedings in any court for the same matter against the same person.
In AB v Director of Public Prosecutions (NSW) [2008] NSWCA 91; (2009) 184 A Crim R 183, in considering whether a deemed dismissal under s 208 amounted to "an order of dismissal" (such that an accused person had a right to a certificate under s 205(2)), Handley AJA (Giles and Campbell JJA agreeing) stated at [10]-[13] (emphasis added): 10 This indicates the nature of the order of dismissal referred to in s 205(1). In the present case the Children's Court did not make "an order of dismissal" and did not "decide to dismiss the matter". There was no trial, no evidence and no adjudication. 11 A dismissal under s 208 does not flow from any order or decision of the court. It takes effect automatically on the withdrawal of the case by the prosecutor. This was ultimately accepted by Mr Walsh who appeared for the appellant. His submission, relevantly, was that after a dismissal under s 208, the accused could ask the court for an order of dismissal. Section 205(2) required the court to make that order which would create a right to a certificate. 12 This submission does not reflect the true construction and operation of these sections. Section 205(2) refers to an order of dismissal of the kind provided for in s 202(2) and 205(1), that is an order of dismissal consequent upon an adjudication by the court. In my judgment an accused person who has been the beneficiary of a dismissal under s 208 has no right to a certificate under s 205(2). 13 An automatic dismissal following withdrawal by the prosecutor was not an actual or deemed decision which attracts an entitlement to a certificate under s 205.
Accordingly, no formal order of the Court is required when the prosecutor declines to offer any evidence or withdraws the charges because the legislation operates to deem a dismissal decision to have been made. The proposed ground of appeal lacks sufficient prospects to warrant a grant of leave.

Having regard to the proposed dismissal of Mr Moore's application for leave to appeal, costs should follow the event, save that there should be no order as to costs regarding the issue of jurisdiction. As the CDPP accepted, each party should bear their own costs in relation to that issue.

Conclusion

For all these reasons, I propose that the summons seeking leave to appeal should be dismissed, with costs (save that there should be no order for costs concerning the issue of jurisdiction such that each party should bear their own costs on that issue).
The CDPP should be directed promptly to notify the Commonwealth Attorney-General and the NSW Attorney-General, if not already notified, pursuant to s 6(4) of the Cross-vesting Act, of these reasons for judgment, the orders and reasons of Chen J at first instance. The Commonwealth Attorney-General and/or the NSW Attorney-General should have liberty to apply within 28 days hereof if either wishes, in relation to the operation of s 6(3) of that Act in these proceedings if either so wishes.

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: 05 July 2023

Jurisdiction of Courts Legislation Amendment Act 2000(Cth)

(NSW), Law and Justice Legislation Amendment Act 1999(Cth)

Transport Security Act 2004(Cth)

Law and Justice Legislation Amendment Act 1999(Cth)

(Jurisdiction of Courts Legislation Amendment Act 2000(Cth)

(2021) 391 ALR 336 Penson v Palmer [2018] FCA 1202 Phong v Attorney-General of the Commonwealth (2001) 114 FCR 75; [2001] FCA 1241 Re Wakim; Ex parte McNally (1999) 198 CLR 511; [1999] HCA 27 The Commonwealth v Lyon (2003) 133 FCR 265; [2003] FCAFC 284 Truthful Endeavour Pty Ltd v Condon (2015) 233 FCR 174; [2015] FCAFC 70 Zhang v Zemin (2010) 79 NSWLR 513; [2010] NSWCA 255 Category: Principal judgment Parties: Ian Moore (Applicant) Commonwealth Director of Public Prosecutions (Respondent) Representation: I Moore (litigant-in-person)

Solicitors: Office of the Commonwealth Director of Public Prosecutions (Respondent) File Number(s): 2022/361525 Publication restriction: Nil Decision under appeal Court or tribunal: Supreme Court of NSW Jurisdiction: Common Law Citation: [2022] NSWSC 1458 Date of Decision: 26 October 2022 Before: Chen J File Number(s): 2021/00320939

HEADNOTE [This headnote is not to be read as part of the judgment] In 2020, Mr Moore brought a series of private prosecutions against members of the NSW Police Force, alleging that they committed State and Commonwealth offences in connection with their previous prosecution of him in 2019. The Commonwealth Director of Public Prosecutions had informed Mr Moore that they would take over and discontinue the prosecutions that he had instituted. The Commonwealth charges against the NSW Police Force officers were withdrawn and dismissed in the Local Court. Mr Moore then commenced proceedings in the Supreme Court seeking, inter alia, writs in relation to the Local Court's decision to dismiss the prosecutions and orders that the CDPP provide Mr Moore written reasons for the decision to discontinue the prosecutions against the NSW Police Force officers. The primary judge dismissed those proceedings (Mr Moore's "First Cross-Summons") and noted that it was unnecessary to determine whether jurisdiction had in fact been conferred on the Supreme Court to determine the proceedings which Mr Moore had brought against a Commonwealth officer. Mr Moore sought leave to appeal against the dismissal decision. The Court (Griffiths AJA, White JA agreeing) dismissed the application for leave to appeal. As to whether the Supreme Court had jurisdiction to determine the matter

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