Moss, T.E. v. Brown, B.R. & Anor [1983] FCA 40

BETWEEN: THOMAS ERVIN MOSS Applicant AND : BRUCE RAYMOND BROWN First Respondent PETER LAMB

On the 31st March, 1978, the applicant, Thomas Exvin Moss, a medical practitioner, was charged on the information of the second respondent, Peter Lamb, with an offence under S.86(1)(e) of the Commonwealth Crimes Act. The committal proceedings were presided over by the first respondent, Bruce Raymond Brown,

Stipendary Magistrate, who, on the 29th November, 1982

held that the evidence adduced disclosed a prima facie case against the applicant of an offence of conspiracy under that section, but the number of persons with whom he was alleged to have conspired was reduced. On the 2nd December, 1982, counsel appearing for the applicant in those committal proceedings submitted to the first respondent that certain witnesses should be recalled for further cross-examination and that the committal proceedings against the applicant be stayed. Both these applications were refused and, on the 20th December, 1982, application for an order of review under the Administrative Decisions (Judicial Review) Act 1977 ("the Act") was filed in this court in respect to the following decisions or conduct of the first

"1. The applicant not be discharged as to an information alleging an offence

2. A prima facie case had been made out against the applicant in respect of an offence under Section 86(1) (e)

3. The first respondent proceed to deal with the applicant pursuant to Section 41(4) of the Justices Act, 1902 (N.S.W.) in respect of an offence under Section 86(1) (e) of the Crimes Act, 1914.

"4. An application on behalf of the applicant that certain witnesses be recalled for further cross-examination by Counsel for the applicant be refused. 5. An application on behalf of the applicant for a stay of committal proceedings against the applicant in respect of an offence under Section

The committal proceedings were conducted in accordance with the Justices Act, 1902 (N.S.W.) which regulates, inter alia, the procedure before justices for the prosecution of indictable offences in Part IV of that Act and, in particular, Section 41 sets out the procedure to be followed at the conclusion of the prosecution evidence. Section 41(2) of that section provides that after all the evidence for the prosecution has been taken, the justice shall, if he is of the opinion that such evidence is not sufficient to warrant the defendant being put upon his trial forth- with order the defendant, if in custody, to be discharged as to the information then under enquiry, or, under sub- section (4) of that section, where the justice is of the opinion that a prima facie case is established, he shall proceed to ask the defendant whether he has anything to say in answer to the charge and warn him of

the consequences if he does say anything. The defendant

On the 30th December, 1982, by notice of motion, the second respondent objected to the competency of this court on the grounds that the decisions and conduct of the first respondent

"a. they are not decisions of an administrative character made under an enactment as defined or included in any of the classes of decisions set out in Schedule 1 of the Act, and

b. the decisions made and the conduct of the respondent are not decisions

made or conduct of an officer of the Commonwealth."

The first respondent appeared on the application for review and the notice of motion and indicated to the court that he would submit to such order as the court thought fit, and was excused from further attendance. No further steps in the proceedings

were taken before the application for review was filed.

the court is incompetent may be summarised as follows:-

1. The first respondent, in making the decisions was not acting pursuant to an enactment of the Commonwealth within the meaning of Section 3 of the Act, but was rather acting pursuant to the New South

2. That the decisions made by the first respondent were not decisions "of an administrative character" but were judicial

By Section 3 of the Act, unless the contrary intention appears "'decision in which this Act applies' means a decision of an administrative character made ..... under an enactment, other than a decision by the Governor-General or a decision included in any of the classes of decisions set out in Schedule 1" to the Act, and "'enactment' means -~

cations of Laws) Act 1970 or the Northern Territory (Self-Government) Act 1978;" and certain ordinances, instruments and regulations which need not be

a decision" is expanded in meaning, and by Section 4, it is provided that the Act has an effect notwithstanding anything contained in any

The words "a decision of an administrative character" have already received some judicial attention, to which I will later refer, but it seems to me that the proper starting point for consideration of what is meant by "administrative" is the definition in the Shorter Oxford Dictionary which is "pertaining to management; executive". Added to this must be the case law in which the functions of a justice of the peace in committal proceedings are considered with a view to determining whether they were specifi- cally "administrative" or "judicial". The argument before me centred around this categorisation, there

being no suggestion that the function fell into any

Many judgments, in which courts have addressed themselves to the question of best describing those functions,;have been cited in argument. Differences

The role of the committing magistrate was examined by Gibbs, J. (as he then was) in Ammann

"The first proposition" (that a committing magistrate is performing a ministerial and not judicial function) "is supported by

a considerable body of authority. In Cox v. Coleridge ((1822) 1B. & C. 37 (107 E.R. 15)), it was held that a preliminary inquiry before a magistrate as to whether there was sufficient ground to commit a prisoner for trial was not a judicial inquiry. Holroyd, J. went further; he said ((1822) 1B. & C., at pp. 51-52 (107 E.R., at p. 20)):

"AR magistrate, in cases like the present, does not act as a Court of Justice; he is only an officer deputed by the law to

enter into a preliminary enquiry .....'. Notwithstanding the reforms made since the time of that decision by Sir John Jervis' Act ((1848) 11 & 12 Vict., c. 42) and by the Colonial and State statutes that followed its provisions, it has been held that the nature of the inquiry has not

been altered and that a magistrate in conducting such an inquiry is exercising

an executive or ministerial and not a judicial function: Reg. v. Nicholl ((1862) 1Q.S.C.R. 42); In re Mercantile Bank;

at p. 539); Huddart, Parker & Co. Pty. Ltd. v. Moorehead ((1908) 8 C.L.R. 330 at p. 357); Ex parte Cousens; Re Blacket ((1946) 47 S.R. {(N.S.W.) 145); Ex parte Coffey; Re Evans ((1971) 1 N.S.W.L.R. 434). A different view was suggested in Reg. v. Schwarten;

Ex parte Wildschut ((1965) Qd.R. 276), but in that case the actual decision was that prohibition lay to a magistrate conducting preliminary proceedings whether or not he was performing a ministerial function -- a question which does not here concern us.

It may therefore be accepted that a preliminary inquiry with a view to deciding whether an accused person should be committed for trial is not a judicial proceeding."

"There has been a long standing controversy as to the availability of common law prohibition and certiorari to a magistrate hearing committal proceedings."

His Honour then quoted the relevant cases and continued:-

"Tn this conflict of authority my preference is for the view that prohibition will lie

to a committing magistrate to correct for want or excess of jurisdiction. Although

it has been said that committal Proceedings are ministerial (Ammann v. Wegener (1072-73) 129 C.L.R. 415 at 435-436)) 1s should now be recognized affirmatively that a magistrate hearing committal proceedings has, within the meaning of Atkin L.J.'s observations in R. v. Electricity Commissioners; Ex parte London Electricity Joint Committee Co. (1920) Ltd. ((1924) 1 K.B. 171 at p. 205)) authority to determine questions affecting the rights of subjects and that he has a duty to act judicially. It is his function to determine whether there is a prima facie case against the defendant sufficient to warrant his being put upon trial. That determination is one which materially affects the defendant because it exposes him to trial upon indict- ment and to a deprivation of his liberty pending trial. There can be no doubt that in arriving at his decision the magistrate is bound to act judicially in the sense that he must observe certain standards of fairness appropriate to be applied by a judicial officer. It would be quite unacceptable to say that a committing Magistrate is not under a duty to act judicially or that he is entirely free from supervision by a superior court, even when acting without jurisdiction or in excess of his jurisdiction."

In that case, the application was one for declaratory relief concerning what was ultimately held to be a wrongful exclusion of evidence on a mistaken view of the law relating to Crown privilege. However, there was emphasis that it was only in exceptional circumstances that the remedy sought

I think the pertinent observation to make about the case law relating to the function of committing magistrates is that the ultimate question was the availability of the perogative writs of prohibition and certiorari, or of statutory substitutes for those

Others dealt with the availability of declaratory orders to correct error. The reasoning in those cases will be significant but not necessarily determinative of the nature of the function. The division of governmental power into three separate categories of, firstly legislative, secondly ministerial, executive or administrative, and thirdly judicial, is a concept originating in political philosophy. The relevance of that discovery by Montesquieu in his analysis of the British constitution, was the subject of a legal

and historical discursus by Windeyer, J. in The Queen

v. The Trade Practices Tribunal and Others; Ex parte

123 C.L.R. 361 at p. 388 et seq. There the question was whether certain functions of that tribunal were the exercise of judicial power in constitutional terms. At p. 394, his Honour referred to Reg. v. Davison (1954) 90 C.L.R. at 366 where Dixon C.J. and McTiernan, J. said:-

found possible to frame a definition that is at once exclusive and exhaustive."

In the same case, Kitto, J. at p. 373 quoted the phrase:-

"borderland-in which judicial and administrative functions overlap".

From Labour Relations Board of Saskatchewan v. John

East Iron Works Ltd. (1949) A.C. 134 at p. 148, his

"But I do not think that any such difficulty confronts us here. There are no traditional concepts to be applied as there were in Reg. v. Davison, and two considerations, one negative and the other positive,

appear to me when taken together to require the conclusion that the powers entrusted to the Tribunal are essentially non~judicial. The powers must, of course, be performed in a judicial manner, that is to say with judicial fairness and detachment, but the same is true of many administrative powers."

In that case, the Trade Practices Tribunal established under the Trade Practices Act 1965, if satisfied that an agreement or practice was contrary to the public interest, could make restraining orders after taking into account a number of matters specified. By Section 102 of that Act, the validity of determination of an order was made unexaminable in any proceedings except by perogative writ or injunction in the High Court. Kitto, Windeyer, Owen and Walsh, J.J. decided that the Tribunal's functions were not

judicial, but administrative; Menzies, J. dissented.

It would seem clear that the obligation to approach a function with a judicial mind or to act judicially in performing the function does not alter the essential nature of the function. In this respect, the judicial attitude accords with the legislative intention which can be gleaned from the list of grounds upon which an order for review can be sought. Those grounds include disregard of the rules of natural justice, error of law as to authority, and absence of evidence. Indeed, this section expects a large measure of the attributes of the judicial function to be present in the

ingredient of the exercise of judicial power does not change the character of the function from administrative to judicial and in considering the question of overlapping of characteristics between the two functions, it is as well to bear in mind Section 4 of the Act which is in these words:-

at the commencement of this Act." which I take to mean any law in force, whatever its origin, and would include availability of perogative writs and declaratory relief. There is at least an indication in that section that the availability of other remedies, apart from those provided by the Act, are not an indication that the decisions in respect of

which those other remedies are available, are excluded

Further, by Section 13 of the Acts Interpretation Act 1901, the Schedules to any Act are part of the Act. Included in the Schedule 1 to this Act , as a class of decision to which the Act does not apply, are decisions made under the Telecommunications (Interception) Act 1979. That Act provides for the issue of warrants allowing interception to be issued by a judge of this

It could be argued that secrecy is the dominant intention in relation to such a function and therefore warrants for other purposes are not impliedly included in the category of decisions to be reviewed. However, when one looks at Schedule 2 to the Act, which is a list of classes of decisions in respect of which Section 13 is not to apply, one finds, under the heading "Administration of Criminal Justice", decisions in connection with the issue of search warrants under a law of the Commonwealth or territory. Section 13 of the Act provides that requests for reasons for decisions May be made unless it is a decision, inter alia, included in a class set out in Schedule 2 to the Act. If it were not intended that the decision to issue a search warrant was subject to review, there would be no need to exclude requests for reasons under Section 13 of the Act. Further, it is clear that decisions in the administration of justice were considered to determine whether they should be included in Schedule

It has long been held that the issue of a warrant or summons is a function that has to be approached "judicially" or "with a judicial mind". The authorities in support of that attitude are collected in the

judgment of Keely, J. in Baker v. Campbell & Anor.,

unreported, 22nd October, 1982, where his Honour came to the conclusion that the issue of such a warrant

by a justice within the meaning of the Crimes Act 1914 (Commonwealth) was a judicial and not an administrative function within the meaning of the Act. Various expressions were used in those cases to describe a justice's function in the issue of a summons and the

Tillett; Ex Parte Newton (1969) 14 F.L.R. 101 at p. 106 refers to:- "...the judicial duty cast upon him..."

"...the justice has a judicial discretion to exercise; he has to decide on sworn information whether certain matters are established..."

Another (1970) 71 S.R.(N.S.W.) 291 at 301 said in relation to the issue of a summons that:-

It does not appear that Keely, J.'s attention was drawn to the inclusion in the Schedule J] of the Telecommunications (Interception) Act 1979, and the

inclusion of search warrants in Schedule 2, nor were

in argument. In these circumstances, I respectfully express the view that I cannot find Keely, J.'s

As to the decision that a prima facie case exists or does not exist, there has been no case cited to me, or discovered in my own research, in which it has been held to be judicial in character in the strict sense of that phrase. Because of the overlapping (referred to by Kitto, J. in The Queen

parte Tasmanian Breweries Proprietary Limited (supra) )

it is clear that the phrase "administrative character" should not be interpreted as "purely administrative

For the reasons stated, I hold that the decision of the committing magistrate is a decision of an administrative character within the meaning of the Act. In a contest as to the competency of the court, it is unnecessary, at this stage, to decide upon the

The next question is whether the first respon- dent was acting "under an enactment" within the meaning of Section 3(1) of the Act. Through counsel, the second respondent argued that it was not per- missible to look beyond the Justices Act of New South Wales to discover his statutory authority; that it was the immediate or direct source of his power in

Counsel for the applicant puts the Judiciary Act forward as the relevant enactment. Sub-sections (2) and (3) of Section 68 of that latter Act invest State or Territory magistrates, specially authorised by the Governor-General, with jurisdiction as to summary conviction or examination and commitment for trial. The effect of the Judiciary Act is to confer jurisdiction on such magistrates as the first respon-

dent. In dealing with offences against Commonwealth

The circumstance that the procedure to be followed and the decisions he is required to make are regulated by a State Act does not, in my view, prevent the decision being properly described as

Notice of motion objecting to the competency of this court is dismissed. The second respondent is ordered to pay the applicant's costs of the

I certify that this and the Smreen (1b) preceding pages are a true copy of the Reasons for Judgment herein of his Honour