Plaintiff v Defendants

"(3) The Court shall not extend the time fixed by paragraph (1) except in special circumstances."

Proceeding out of time

15 As the impugned orders were made on 20 January 2005 the period of 60 days within which to commence the proceeding for judicial review had long since expired when the originating motion was filed on 24 October 2005. Hence the proceeding must be dismissed unless the plaintiff can establish the existence of special circumstances which warrant the time for commencement being extended to the date of filing, and I determine that the time should be so extended.

Submissions on special circumstances

16 In submitting that special circumstances existed the plaintiff relied on the following matters. He had been pursuing the matter since the orders were made on 20 January 2005. In that respect he referred, without elaboration, to subsequent hearings in the Magistrates' Court which he described as a continuation of his private prosecution of the Director and Mr Rapke. At these hearings, and it may be at other times, he sought the transcript of the hearing on 20 January 2005. He told me that he did not receive the transcript until around May or June 2005. I note that counsel for the Director did not dispute that the plaintiff received the transcript in that period. The transcript is an exhibit to the plaintiff's affidavit.

17 Further to relying on the delay in obtaining the transcript as a cause of delay in commencing the proceeding, the plaintiff relied on his lack of legal assistance in preparing the application. He said that he was not able to obtain counsel.

18 The plaintiff further said that he had procedural difficulty in getting the documents into order. In that respect there is the originating motion and the affidavit which he forwarded to the Prothonotary "for procedural format checking and registering" on 18 October 2005 and which were received by the Prothonotary on 21 October 2005. The plaintiff said that he had kept the Prothonotary informed of problems in obtaining the transcript and acknowledged having received procedural advice from the Prothonotary.

19 Counsel for the Director submitted that special circumstances were not established. Even though the plaintiff did not then have the transcript of the hearing, he could have filed an originating motion within the period of 60 days. He could also have sworn and filed an affidavit in support in which he could have referred to the delay in obtaining the transcript and otherwise deposed to relevant matters and exhibited such documents as he wanted to rely on including the certified extracts of the orders made by the Magistrates' Court. It is to be noted that the certified extracts in fact exhibited to his affidavit are dated 9 March 2005 which was, of course, within the 60 day period.

20 Furthermore, even if a delay in the receipt of the transcript to May/June could have justified the delay in commencing the proceeding, or constituted special circumstances, the proceeding was not commenced until October.

21 In these circumstances the Director submitted that special circumstances had not been established, that the time for commencing the proceeding should not be extended, and that the proceeding should be dismissed.

The Prosecutions Act

22 It is now convenient to refer to relevant provisions of this Act. In Part 2 it is provided, among other things, that the Director is responsible to the Attorney-General for the due performance of his or her functions and exercise of his or her powers[2]. The Director may appear in person or be represented by a legal practitioner in any proceedings conducted by him[3]. In Part 3 provision is made for the appointment of a Chief Crown Prosecutor[4] who is responsible to the Director for the due performance of his or her functions and exercise of his or her powers[5]. Then, the functions and powers of the Director are set out in Part 4. In Part 5 provision is made for the appointment of Crown Prosecutors[6]. A Crown Prosecutor is responsible to the Director for the due exercise of his or her functions[7].

23 Turning more specifically to Part 4, the following provisions are to be noted:

"22. Functions of Director

(1) The functions of the Director are -

(a) ...

(b) if he or she considers it desirable to do so -

(i) ...

(ii) to take over and conduct any proceedings in respect of any summary or indictable offence, other than proceedings in respect of an indictable offence that are consequent on a finding of a grand jury under section 354 of the Crimes Act 1958;".

24 Then there is s 24 to which, the plaintiff submitted, the Director should have had regard when considering whether or not to prosecute the charges, and s 29 which the plaintiff submitted the Director should have acted under.

25 Section 24 provides that:

"In the performance of his or her functions the Director must have regard to -

(a) considerations of justice and fairness; and

(b) the need to conduct prosecutions in an effective, economic and efficient manner; and

(c) the need to ensure that the prosecutorial system gives appropriate consideration to the concerns of the victims of crime."

26 Finally, s 29(1) provides that:

"The Director may request the Attorney-General to perform certain functions or exercise certain powers of the Director... if the Director considers it desirable in the interests of justice that he or she should not perform those functions or exercise those powers whether because of the existence or possible existence of a conflict of interest or for any other reason."

Sub-section (2) provides that if the Attorney-General agrees to such a request he or she may perform the functions or exercise the powers in question or request the Chief Crown Prosecutor or a Crown Prosecutor to do so.

27 It is to be noted that Part 3 relating to the Chief Crown Prosecutor includes a provision similar to s 29(1) under which the Director may, following a report to the Director by the Chief Crown Prosecutor, request a Crown Prosecutor to perform the functions or exercise the powers of the Chief Crown Prosecutor in question[8].

Charges Against the Director and Other Persons

28 In addition to bringing charges against Mr Rapke, the plaintiff had also charged the Director and two other persons with offences. These charges were also before the Magistrate on 20 January 2005. It seems evident that these other charges were related to or arose out of the prosecution of the plaintiff. The charges against the Director and the other persons are not the subject of the present application for judicial review, and are not in evidence. However, they are part of the context and I mention their disposition as it appears in the transcript of the proceeding in the Magistrates' Court.

29 The charges against the Director were struck out as they had not been filed within the time required by s 30(2)(a) of the Magistrates' Court Act 1989. In that circumstance s 30(3) required that "the Court must strike out the charge", which the Magistrate did. The charges concerning the other two persons were adjourned to allow the Director to obtain more detailed instructions concerning them.

Disposition of the Charges against Mr Rapke

30 These charges were struck out on the basis referred to earlier. The course of events before the Magistrate was as follows. On announcing his appearance for the Director, counsel stated that in relation to Mr Rapke, pursuant to s 22(1)(b)(ii) of the Prosecutions Act, the Director had considered it appropriate that he take over the conduct of the matter and had considered the matter and determined that the charges were misconceived as a matter of law and should not proceed. The Magistrate asked counsel if he was asking that the charges be struck out and counsel said that was correct. Putting aside discussion pertaining to the charges against the other persons there was discussion between the Magistrate and the plaintiff as to the power of the Director and the result. In the course of the discussion the plaintiff commented that he wondered if there was not a conflict of interest here meaning, as is apparent, a conflict of interest affecting the Director in the circumstances. The following discussion then occurred:

Magistrate: I can understand why you might have that view. All I can say is that this Court must act according to law and the position is clear under the legislation. The Director can take over the proceedings. The Director has delegated the proceedings to an appropriate officer who has indicated that the charges are to be struck out.

Walsh: He can take over proceedings even though he is involved in the proceedings?

Magistrate: I think if the Director is a party to the proceedings, that is why I am dealing only with the matter that is relevant to Mr Rapke. We will talk further in a moment about the matter concerning Mr Coghlan. That is a different issue and I think we need to keep the matter separate at this stage and I am only dealing with the matter relating to Mr Rapke, and that is the matter that Mr Coghlan has taken over, and indicated through his delegate that the charges are to be struck out.

Walsh: Your Worship, the conflict of interest that I raised is not relevant in relation to Mr Rapke. Is that how you see it?

Magistrate: Yes, and certainly again I appreciate that you might not have access to particular resources of the Court, but I could refer you to... [The Magistrate then referred to the decision of Habersberger J in Stefanovski v The Magistrates' Court of Victoria [2004] VSC 313 where the Director had taken over the conduct of informations under s 22(1)(b)(ii) of the Prosecutions Act and determined to discontinue them and on their being struck out the plaintiff who had issued the informations sought judicial review, which was refused. The Magistrate continued -] In other words, it was a matter that came before a Magistrate in similar circumstances to these, and it was indicated that the Court has no alternative but to act to strike out the charges, so that's what I intend to do for the reasons I have given in the matters concerning Mr Rapke. I will come back to the other matters in a moment, and you can be seated there and I will try to explain to you in the best way I can, that I am acting in the way that I am, you can obviously have a look at it further, but as far as the matter of Mr Rapke is concerned, the charges will be marked struck out.

A little later the plaintiff asked the Magistrate whether the Director had an overriding power to quash anything that comes before the Court, to which the Magistrate replied:

"What I am saying to you is this. That if in this Court the Director appears or through a representative appears, and indicates that pursuant to the exercise of power under section 22(1)(b)(ii) that the Director has taken over the conduct of the proceedings, then the Court must accept that decision and then act according to the decision given by the prosecuting authority."

Submissions on judicial review

31 The submissions of the plaintiff and counsel for the Director before me were short and succinct. In now referring to the submissions of the plaintiff I have regard also to his statements and contentions in the originating motion and the affidavit in support.

32 The plaintiff's submission directed itself to the "decision making process" of the Director, not merely the decision itself to take over the charges and not proceed with them. There were "unique, special and exceptional circumstances that should override the decision" and disallow the Director "from having any ability or any authority to commandeer and immediately close down a matter the likes of that before the court". This was because in acting as he did the Director was affected by a conflict of interest. The conflict arose from the fact that he, the Director, was also charged with offences, that he acted out of a desire to protect a Crown Prosecutor and out of a desire to close down the cases against them. It was said that "acting in a judicial capacity he made a biased decision that completely disregarded his unconscionable position of conflict and self-interest".

33 The plaintiff submitted that in these circumstances of conflict, and having regard to the considerations stated in s 24, the Director should have exercised his power under s 29(1) and requested the Attorney-General to perform his functions and exercise his powers in relation to considering whether to take over the charges and proceed with them. Alternatively, he could, and should, have treated these decisions as a "special decision" within the meaning of s 3 and convened a Director's Committee to consider the decision pursuant to s 23. The consequence of not acting in this way was that in effect the Director sat in judgment upon himself. This, the plaintiff submitted, involved a departure from the principle that no person should be a judge in his own cause. There was thus a denial of natural justice.

34 The plaintiff submitted further that the Magistrate erred when he allowed the Director to hold jurisdiction in the knowledge of the exceptional circumstances. This constituted "jurisdictional error". While the Magistrate had jurisdiction "to issue the end order" all he did was follow the instruction of the Director who took "all authority away from" the Magistrate. The Director came into court "as the person holding jurisdiction". The Magistrate had power to stop an abuse of the processes of the court but "did not judge the argument but instead followed the instruction of" the Director.

35 Hence, jurisdictional error was to be found in "the exceptional and self-serving circumstances involved", that is of bias and conflict of interest, and in the Magistrate subverting his discretion to the dictate of the Director. The plaintiff further submitted that the decision of the Magistrate was obtained by fraud. It was even said (in the affidavit) that the Director had fraudulently conspired with a fellow accused to obtain a material advantage by unfair means and to defeat justice by placing a biased and self-serving interpretation on the Prosecutions Act.

36 Having read and reread the originating motion and affidavit in support, and heard the plaintiff's oral submissions, the above is, I consider, a fair and reasonable summary of his contentions. If I have not mentioned some point or other it is not because I have overlooked it but have perforce had to distil the essence of the matter from all of the materials.

37 I turn then to the submissions of counsel for the Director. It was submitted first that, insofar as the proceeding sought judicial review of the Director's exercise of his powers pursuant to s 22, his decision was not amenable to judicial review. As to this, counsel referred to Maxwell v The Queen[9] and Williams v DPP[10].

38 In the second place, insofar as the proceeding sought judicial review of the decision of the Magistrate on 20 January 2005, there should be no review of that decision. There was no jurisdictional error, no non-jurisdictional error on the face of the record, no breach of the rules of procedural fairness or fraud. As to the relevant principles of law concerning judicial review in the nature of certiorari, counsel referred to the well known passages in Craig v The State of South Australia[11].

39 Finally, judicial review should be refused as a matter of discretion as the proceeding was a collateral attack upon the plaintiff's conviction.

Decision

40 The first issue for determination is whether special circumstances exist which warrant an extension of the time in which to have commenced the proceeding.

41 I considered the meaning of the phrase "special circumstances" in Mann v Medical Practitioners Board of Victoria[12]. It is not necessary to repeat that discussion in this case. It is sufficient to say that what is "special" is that which is not general in character.

42 In my view the plaintiff has not established the existence of special circumstances. In the first place, an originating motion could have been filed within the period of 60 days. The fact that the transcript was not available within that time was not a sufficient reason to not commence the proceeding within that time. The transcript could have been exhibited to a further affidavit when it became available. There is really no satisfactory explanation for the failure to commence the proceeding within time.

43 Even if, however, it were to be considered that special circumstances existed as to not commencing the proceeding within time, due to the absence of the transcript and the other circumstances mentioned by the plaintiff which he contends affected his ability to prepare the paperwork in time, it is necessary to consider the subsequent delays. In that respect there is the delay up to the May/June period when the transcript was received and, following that, the delay up to the commencement of the proceeding in October. The delay from 21 March to receipt of the transcript is in the area of two months or so. The delay from receipt of the transcript to commencement of the proceeding is even longer, being in the order of four months or so. The total delay from the expiration of the 60 days is in the order of five months.

44 Nevertheless there should also be considered the relative justice or injustice and prejudice to the parties if time is not extended. The injustice or prejudice to the plaintiff if time is not extended would be the loss of the ability to have judicial review of the Magistrate's decision and, if that review be successful, a remitter of the charges for hearing in the Magistrates' Court. The injustice or prejudice to the Director if time is extended is the loss of the benefit of the expiration of time, namely the preclusion of the plaintiff from commencing the proceeding for judicial review, and exposure to the risk of an adverse conclusion in the proceeding and a remitter for a hearing of the charges in the Magistrates' Court.

45 However on analysis the above prejudice to the plaintiff is without substance. That is for this reason. Even if the plaintiff was to be successful in this proceeding and the matter was remitted to the Magistrates' Court for determination in accordance with law, the same result of the charges being struck out must occur again unless the Director changed his mind and determined to prosecute the charges. The likelihood of that happening would seem self-evidently to be so slight as to be put to one side. That being the case, the remitter would be pointless. The likelihood is also that the Attorney-General would be of the same view if the Director referred the matter under s 29. Regarding the matter overall, the consequence is that the Director would have lost the benefit of the expiration of time and in consequence been put to further expense and bother on a matter that had no substance.

46 I would also be prepared to consider as a relevant factor whether the plaintiff has an arguable case, without deciding whether that is a factor properly to be taken into account. I considered whether that was a factor that may be taken into account in my judgment in Mann v Medical Practitioners Board of Victoria[13]. I should say, however, that in my view the plaintiff does not have an arguable case.

47 In my view none of the matters advanced by the plaintiff or to which I have referred, whether considered separately or together and in the context of all of the relevant circumstances, constitute special circumstances that would warrant time being extended to the date upon which the proceeding was commenced. What has happened is that a very long delay has occurred without evidence of factors that operated to impede the plaintiff in commencing the proceeding in time and to produce the subsequent delay and which might, regarded overall, be regarded as special circumstances. Furthermore, even if time were to be extended and the plaintiff was to succeed on the review, the remitter of the matter to the Magistrates' Court would be pointless as the charges would again be struck out.

48 For these reasons the application for an extension of time within which to commence the proceeding must be refused.

49 Strictly speaking, this conclusion makes it unnecessary to deal with the aspect of judicial review. However lest I be wrong in that conclusion, and in view of the argument, I will express my views upon the issue.

50 As stated in Craig[14] certiorari will lie for judicial error, failure to observe a requirement of procedural fairness, fraud and error of law on the face of the record. The ground of error of law on the face of the record was not suggested by the plaintiff, correctly in my view, and can immediately be put aside as a relevant ground. In his submissions the plaintiff is seen to have relied on the other three grounds upon which certiorari may lie.

51 Jurisdictional error was explained in Craig[15] as follows:

"An inferior court falls into jurisdictional error if it mistakenly asserts or denies the existence of jurisdiction or if it misapprehends or disregards the nature or limits of its functions or powers in a case where it correctly recognises that jurisdiction does exist. Such jurisdictional error can infect either a positive act or a refusal or failure to act. Since certiorari goes only to quash a decision or order, an inferior court will fall into jurisdictional error for the purposes of the writ where it makes an order or decision (including an order or decision to the effect that it lacks, or refuses to exercise, jurisdiction) which is based upon a mistaken assumption or denial of jurisdiction or a misconception or disregard of the nature or limits of jurisdiction."

52 In light of those principles it is important to identify the separate roles and powers of the Director and the Magistrate and to consider that which the Magistrate did. Merely regarding s 22(1)(b)(ii) of the Prosecutions Act, a function of the Director was, if he considered it desirable to do so, to take over and conduct any proceedings in respect of any summary or indictable offence. If he determined to take over a proceeding he could appear personally or be represented by counsel. The function of the Magistrate as the presiding judicial officer at the hearing of the proceeding being conducted by the Director was to see that the proceedings were heard and determined in accordance with the law.

53 In the present case, when the proceedings came on for hearing counsel informed the Magistrate that the Director had taken over their conduct and determined that the charges were misconceived and should not proceed. Counsel confirmed that he requested that the charges be struck out. The Magistrate did order that the charges be struck out but not before some discussion of the legal position including the Director's power. It was in the course of that discussion that the Magistrate referred to the decision of Habersberger J in Stefanovski[16]. In view of the plaintiff's submission that Stefanovski was not analogous, I should make some reference to it.

54 Stefanovski was an application for judicial review which Habersberger J heard in the Practice Court. The case concerned two private informations which Mr Stefanovski issued against two police officers and which the Director took over the conduct of pursuant to s 22(1)(b)(ii) of the Prosecutions Act. When the matter came to court counsel for the Director advised the Magistrate that the Director had decided to discontinue the proceedings as having no merit, and the Magistrate struck out the informations with costs. Mr Stefanovski sought judicial review of the orders on bases including a denial of natural justice and that the Magistrate did not consider and accept any facts or evidence by Mr Stefanovski. He also sought judicial review of the intervention of the Director and the discontinuance which denied him the right to prosecute. The matter came to the Practice Court on a reference from the Master who had dismissed the claim for review of the Director's decision and the Magistrate's decision and orders on the basis the claims were hopeless, but who had ruled that a claim to review the costs order was not hopeless. Habersberger J heard the reference as an appeal from the decisions of the Master and, after dealing with the costs aspect, considered the claim dismissed by the Master. Briefly stated, Mr Stefanovski argued that s 22(1)(b)(ii) was void for a variety of reasons including that the Director's decision can not be challenged, that it provided for arbitrary dismissal without due process, and that the Director acted as a judicial authority. In these circumstances the section contravened s 51(XXIV) of the Commonwealth Constitution. In rejecting the argument Habersberger J concluded that nothing put or any argument he could think of:

"... would indicate to me that there is any ground for saying that s.22(1)(b)(ii) of the Public Prosecutions Act 1994 infringes any section of the Constitution. Moreover, in my opinion, it is not open to the plaintiff to seek judicial review of the decision by the Director to take over the conduct of the two informations or of the decision by the Director to discontinue those proceedings. On that basis, it seems to me that the plaintiff's claim that this part of the Magistrate's decision should be quashed is hopeless. The Magistrate was clearly correct in making an order striking out both informations.[17]

55 It is true that, as the plaintiff said, Stefanovski concerned informations against two police officers as distinct from the present proceeding against the Director, the prosecutor and others and involving allegations of the nature and gravity as those made by the plaintiff in this case. I take that into account in considering the observations of Habersberger J.

56 As I have said, the Magistrate referred to the decision in Stefanovski and to the conclusion that the Magistrate had been correct in striking out the information. He added that the case had come before that Magistrate in similar circumstances to the present and that it was indicated (by Habersberger J) that the Court had no alternative but to strike out the charges. The Magistrate concluded that for the reasons he had given he intended to strike out the matters concerning Mr Rapke, which he then did.

57 In my view the Magistrate did not fall into jurisdictional error or, indeed, any error at all. The charges were properly before the Magistrate and it was within his power to order that they be struck out. It was, in fact, entirely appropriate that the charges be struck out in view of the fact that the Director had determined not to proceed with them and asked that they be struck out.

58 Further, the hearing was conducted by the Magistrate in an entirely fair and open manner. The plaintiff had previously been advised of the Director's decision by the letter dated 10 January 2005. Then, during the hearing the Director's position was clearly stated and the plaintiff was afforded every opportunity to say what he wished to say, and the Magistrate explained the legal position and why the charges would be struck out. There was no want of procedural fairness or fraud in the hearing and determination of the proceedings before the Magistrate.

59 The plaintiff sought to overcome the difficulty in attacking the Magistrate's decision by his attack on the conduct of the Director which he sought to link to the Magistrate's decision and orders. The jurisdictional error was to be established by founding it upon the conduct of the Director, motivated as I referred earlier in summarising the plaintiff's submissions and carried out in circumstances of conflict of interest, and tying the Magistrate's decision and orders to it in the sense that the Magistrate in effect permitted it to override his jurisdiction and power. It was as a part of that contention that the plaintiff made the submissions as to conflict of interest and other criticisms of the Director including fraud.

60 The difficulty with all this is that in determining whether to take over and conduct a proceeding the Director exercised an independent statutory discretion of an administrative nature. Contrary to the submission of the plaintiff, the Director did not act in a judicial capacity or as a judicial authority in making his determinations under s 22.

61 It is true that in circumstances of conflict of interest the Director may request the Attorney-General to perform the functions under s 22(1)(b)(ii) or treat the matter as a special decision. And, in this case, he might well have chosen to do so although that is not to say that he was in a situation of conflict. The Magistrate was bound to strike out the proceedings against the Director in accordance with the Magistrates' Court Act, and he duly did. Quite simply, there was no valid proceeding against the Director. If there was a conflict of interest it must therefore be found in the wider circumstances of the authority of the Director in the prosecutorial system and his relationship with the Crown Prosecutor in this case. To this must be added the Director's assumed desire to protect Mr Rapke. From these foundations spring the allegations of bias, self-serving conduct and fraud. These allegations or rather assertions are not established by evidence.

62 Putting those allegations or assertions to one side, in a general sense the submission of a conflict of interest may be understood in terms of the relationship between the Director and the Crown Prosecutor and, doubtless, the Director might have acted under s 29(1). To say these things however is not to make any particular finding as to the existence of a conflict of interest or to reflect on the manner in which the Director acted in this matter. I had no evidence as to that beyond the letter advising the Director's decision dated 10 January 2005 and what was said at the hearing before the Magistrate.

63 Counsel for the Director submitted not merely that there was no conflict of interest but, assuming that there was, the decisions of the Director were not justiciable. I should say that while it is obviously desirable, not only having regard to the provisions of the Act but also as a matter of common sense, that if there reasonably be considered to be a conflict of interest it is desirable that the Director proceed pursuant to s 29(1) or perhaps by treating the matter as a special decision, yet in the absence of facts I am not satisfied that there was such a combination of circumstances that the Director should have thus proceeded in this case.

64 In my view the submission of counsel for the Director is correct. I agree with the observation of Habersberger J in Stefanovski that a decision of the Director to take over the conduct of proceedings and a decision to discontinue the proceedings is not open to judicial review. The reason is that such decisions as the Director made here, to take over and conduct a proceeding and not to proceed with it - are decisions made in the prosecutorial process and are not susceptible of judicial review. The reason for this was more fully stated by Gaudron and Gummow JJ in their joint judgment in Maxwell v The Queen[18] as follows:

"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 (See Connelly v Director of Public Prosecutions [1964] AC 1254 at 1277; R v Humphrys [1977] AC 1 at 46; Barton v The Queen [1980] HCA 48; (1980) 147 CLR 75 at 94-95, 110), to enter a nolle prosequi (See R v Allen [1862] EngR 309; (1862) 1 B & S 850 [121 ER 929]; Barton v The Queen [1980] HCA 48; (1980) 147 CLR 75 at 90-91), to proceed ex officio (See Barton v The Queen [1980] HCA 48; (1980) 147 CLR 75 at 92-93, 104, 107, 109), whether or not to present evidence (See, eg, R v Apostilides [1984] HCA 38; (1984) 154 CLR 563 at 575) and, which is usually an aspect of one or other of those decisions, decisions as to the particular charge to be laid or prosecuted (See R v McCready (1985) 20 A Crim R 32 at 39; Chow v Director of Public Prosecutions (1992) 28 NSWLR 593 at 604-605). 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 (Barton v The Queen [1980] HCA 48; (1980) 147 CLR 75 at 94-95; Jago v District Court (NSW) [1989] HCA 46; (1989) 168 CLR 23 at 38-39, 54 per Brennan J; at 77-78 per Gaudron J; Williams v Spautz [1992] HCA 34; (1992) 174 CLR 509 at 548 per Deane J; Ridgeway v The Queen [1995] HCA 66; (1995) 184 CLR 19 at 74-75 per Gaudron J).

See too Williams v DPP[19].

65 The plaintiff's submission that the Director and his decisions in effect usurped the jurisdiction of the Magistrates' Court must be rejected. No such thing occurred. The Magistrate dealt with the case in an appropriate manner and made orders that were appropriate to be made. There was no relevant error in the hearing and determination of the matter by the Magistrate. In effect the plaintiff is seeking judicial review of the exercise by the Director of his powers under s 22(1)(b)(ii). As the decisions of the Director made in the exercise of those powers are not amenable to judicial review, and are in any event distinct from the decision and orders of the Magistrate, the application for judicial review must in any event have failed.

Order

66 The proceeding will be dismissed.

[1] Walsh [2002] VSCA 98; [2002] 131 A Crim R 299.

[2] Section 10(1).

[3] Section 11.

[4] Section 13.

[5] Section 20(1).

[6] Section 31.

[7] Section 36(4).

[8] Section 21.

[9] (1995-1996) 184 CLR 510 at 534 per Gaudron and Gummow JJ.

[10] [2004] VSC 516; (2004) 151 A Crim R 42 at 47 per Gillard J.

[11] [1995] HCA 58; (1994-1995) 184 CLR 163 at 175-183.

[12] [2004] VSCA 148 at [68]- [71].

[13] [2004] VSCA 148 at [71]. See also the cases collected at Civil Procedure - Victoria, Williams vol 1, para I 56.01.40.

[14] (1994-1995) 104 CLR 163 at 175-176.

[15] At 177.

[16] [2004] VSC 313.

[17] At [13].

[18] (1995-1996) 184 CLR 501 at 534.

[19] [2004] VSC 516; (2004) 151 A Crim R 42 at 47 [23]- [24].