Tabcorp Holdings Limited v Fitzsimons & Ors

Tabcorp Holdings Limited v Fitzsimons & Ors - [2007] NSWSC 836 - NSWSC 2007 case summary — Zoe

[29]

9 The plaintiff's argument before her Honour and before me was that the first defendant would have the right to commence the prosecutions as a common informer under the Act unless the proviso in s 14 had been enlivened. The plaintiff argued that the effect of s 14 is that the first defendant would not have the right to institute a prosecution if the Act expressly conferred the right to institute a prosecution on a specified person or class of persons. 10 The first defendant is not an inspector or a police officer. No regulations to the Act have prescribed any other person, or person of a class, as persons who may institute proceedings. 11 The plaintiff argued that the right to institute a prosecution is expressly conferred by the Act "on a specified person or a class of persons" within the meaning of s 14 of the Criminal Procedure Act. That is because "an inspector" and "a police officer" are each a class of persons. Further, the conferral of power upon "any other person, or person of the class, prescribed by the regulations" also constitutes an express conferral on a specified person or class of persons. In the present case "class of persons" are those defined as "any other person, or person of a class, prescribed by the regulations". If the regulations prescribed that a person or person of a class may bring proceedings, then that would constitute an express conferral by the Act on a specified person or class of persons. The plaintiff argued that her Honour's conclusion that "by any stretch of the imagination nobody could interpret [s 102(c) of the Act] to mean a specific class of persons who are empowered by this section to initiate proceedings for an event under this Act" is wrong. According to the plaintiff, s 102(c) confers the right to institute proceedings on "a specified person or class of persons". 12 The plaintiff relied upon White v Phipps (supra). That case was concerned with s 4 off the Fines and Penalties Act 1901, which is the predecessor of s 14 of the Criminal Procedure Act. Section 4 provided: -

[60]

"So, your Honour, if s102(c) was better framed, if there was a regulation, or if it had been repealed, or removed, or was never there, I wouldn't be here." 30 Mr Garling's response to this was as follows. The first defendant accepts that if s102(c) were not present, he would not be entitled to bring the prosecution. He also accepts that with s102(c) present, if a regulation had been made which nominated a person or class of persons, but no-one else, he would also, similarly, not be entitled to bring the prosecution. The first defendant seeks to argue, however, that because there is a possibility that a regulation might be made - in other words, because it is a provision to make a regulation, and a regulation has not been made - that there is thereby no restriction on who might prosecute. 31 Mr Garling submitted that that reasoning is flawed for two reasons. First, the use of the word "or" between (a), (b) and (c) in s 102 makes it plain that they are disjunctive, so that, unless there is a regulation made and a person, or class of persons, is nominated, s102(c) has no work to do. In other words, that is the equivalent of only (a) or (b) being present. Secondly, even if (c) is present, and no regulation is made, that doesn't mean that s 102 is open-ended. Rather, it is closed only to (a) and (b). 32 In fairness to the first defendant, it should be noted that his written submissions did not deal with the principal or threshold point upon which the plaintiff relied. Instead, they emphasised s 53(3)(b) of the Crimes (Appeal and Review) Act 2001, to the terms of which I shall shortly refer. Accordingly, I have also had regard to her Honour's analysis of the s 102 point, as set out earlier in these reasons, in order that the first defendant may have the benefit of that analysis on this issue. Consideration 33 Notwithstanding this assistance, in my opinion the first defendant's argument fails. Section 102 of the Act is clear. Proceedings for an offence under the Act or the regulations may be brought by an inspector or a police officer and none other unless they can claim to be a person, or a person of a class, prescribed by the regulations. The first defendant cannot make such a claim. To my mind, the fact that no person, or person of a class, has been prescribed by the regulations cannot be distinguished from a situation where s102(c) had not been enacted. The categories set forth in s102(a) and (b) would in such a case continue to cover the field. The first defendant quite properly concedes that he would be "out of court" in those circumstances. The fact that no regulations have been promulgated, which prescribe a person, or a person of a class, for the purposes of s 102, does not mean that some form of vacuum has been created which someone like the first defendant is entitled to fill as a common informer until they are. I agree, with respect, with the words of Street CJ in White v Phipps (supra) that "though the words are permissive only, the provisions of the section would have been nugatory if it had not been intended to take away the right of a common informer to sue". 34 As I have indicated, the first defendant's written submissions concentrated upon the procedural aspects of the plaintiff's claim in this Court, and in particular upon s 53(3)(b) of the Crimes (Appeal and Review) Act 2001. They did not direct attention to the plaintiff's claim to be entitled to relief pursuant to s 69 of the Supreme Court Act 1970. I raised this with the first defendant in the course of oral submissions. The possible reason for the absence of a reference to this in his written submissions then became apparent, as the following passage reveals: -

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Your Honour, the prohibition must flow from the right, the appeal being successful, or unsuccessful. We can't say, well, I get up and magistrate didn't make an error of law and by the same token, the proceedings, there is prohibition. You can't have one without the other. The section 69 prohibition stands or falls on the merits of the leave application and the error determination." 35 The plaintiff submitted that this Court has power to make an order under s 69 of the Supreme Court Act 1970 in the nature of prohibition which would prevent the Local Court from dealing further with the prosecutions. The plaintiff submitted that if the first defendant had no right to institute the prosecutions it would follow that the proceedings were not validly constituted before the Local Court and that the Local Court had no jurisdiction to hear them. On this analysis, any judgment or order would be void. The plaintiff submitted that that would give rise to the type of circumstances in which a writ of prohibition was formerly available: see Parisienne Basket Shoes Pty Ltd v Whyte (1938) 59 CLR 369 at 391-392 per Dixon J. 36 There is authority that where this Court has appellate jurisdiction, it may be more appropriate to bring an appeal rather than to seek an order in the nature of prerogative relief: see Meagher v Stephenson (1993) 30 NSWLR 736 at 738-739; Hill v King (1993) 31 NSWLR 654 at 656, 658-659; ASIC v Farley (2001) 51 NSWLR 494 at 500. These cases do not, however, stand for the proposition that it is more appropriate to proceed by way of an appeal where, as in the present case, the error goes to an absence of jurisdiction. 37 In the plaintiff's submission, no impediment exists to the making of an order of the type sought in paragraph 1 of the Summons. 38 Alternatively, the plaintiff submitted that, if this were a case in which it was appropriate to proceed by way of appeal only, this is a case where the application for leave and the substantive appeal should be determined at the same time. 39 Section 53(3) of the Crimes (Appeal and Review) Act provides relevantly as follows: -

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"[55] In R v Bozatsis . . . this Court (Gleeson CJ, Meagher J A and Bruce J) dealt with an appeal under s 5F against an order of a trial judge which had effectively brought an end to a prosecution by excluding "all prosecution evidence" as being illegally obtained. If the ruling had been merely a ruling on the admissibility of evidence, no appeal would have lain under s 5F: R v Steffan (1993) 30 NSWLR 633. However, the trial judge had also made an order permanently staying the proceedings, which is an order traditionally characterised as an interlocutory order. On the other hand, the permanent stay could be seen merely as consequential to a ruling on evidence and such a ruling was not to be treated as a judgment or order because it lacked the relevant degree of finality. Gleeson CJ concluded that this was not merely a decision with respect to the admissibility of a particular piece of evidence but a discretionary decision not to receive any evidence tending to prove the guilt of those charged. His Honour looked at the effect "in substance" of the order, rather than its form (at 304)." 42 In dealing with the question of what was an "interlocutory judgment or order" under s 5F of the Criminal Appeal Act 1912, Basten JA also referred at par [57] to authorities dealing with that section in which "it was held s 5F did not permit such an appeal, not by reference to a definition of the words "judgment" and "order", but by looking to the substance and effect of the decision made by the trial judge, as viewed in the context of the Criminal Appeal Act". 43 The plaintiff submitted before me that the application, which it brought before her Honour, was an application that the prosecutions be summarily dismissed, struck out or permanently stayed. That application was dismissed. The plaintiff submitted that that order did not finally dispose of all the rights of the parties in respect of the prosecutions and was therefore not a final order that disposed of the proceedings. In that sense, so the plaintiff submitted, the decision was interlocutory rather than final. 44 The plaintiff relied upon R v Bozatsis (supra) in support of the proposition that if her Honour had accepted the plaintiff's argument, and had stayed the proceedings, that would have been an interlocutory order. The plaintiff then argued, in a way that was said to be consistent with that approach, that her Honour's decision to reject the argument and dismiss the application was also an interlocutory order. This argument, it seems to me, places emphasis upon the nature of the application in response to which the judgment or order is pronounced or made, rather than upon the substance and effect of the judgment or order itself. 45 In the present case, however, the distinction is one without a difference. The substance and effect of her Honour's order was not one that finally concluded or disposed of the substantive rights of the parties to the proceedings. In Hall v Nominal Defendant (1966) 117 CLR 423 Taylor, Windeyer and Owen JJ, Barwick CJ dissenting, held that an order made under s 65A(3) of the Traffic Act 1925 (Tas) refusing an application for an extension of time within which to institute proceedings against the nominal defendant is not a final order within the meaning of s 35(1)(a) of the Judiciary Act 1903-1960 (Cth) so that no appeal lay from such an order as of right to the High Court. By way of contrast, Barwick CJ, Taylor and Owen JJ expressing no opinion, and Windeyer J contra, expressed the opinion that an order granting an extension of time under the same section was a final order for the purposes of s 35(1)(a). 46 Taylor J in that case at 439-440 expressed the opinion of the majority as follows: -

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