Visscher v Fripp [2024] NSWIRComm 1075 | Case summary

Catchwords

[1992] HCA 64 Commissioner of Corrective Services v Liristis (2018) 98 NSWLR 113[1929] HCA 481 Likiardopoulos v The Queen (2012) 247 CLR 265[2012] HCA 37 Maxwell v The Queen (1996) 184 CLR 501[1996] HCA 46 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355[2014] NSWCA 209 Visscher v SafeWork NSW [2024] NSWIRComm 1012

Judgment (11 paragraphs)

[1]

ey Local Health District [2021] NSWCA 97 Killen v Lane [1983] 1 NSWLR 171 Le Mesurier v Connor (1929) 42 CLR 481; [1929] HCA 481 Likiardopoulos v The Queen (2012) 247 CLR 265; [2012] HCA 37 Maxwell v The Queen (1996) 184 CLR 501; [1996] HCA 46 Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 Rail Corporation of NSW v Elleray [2017] NSWSC 1726 Simpson v Hodges [2007] NSWSC 1230 Taheri v Vitek (2014) 87 NSWLR 403; [2014] NSWCA 209 Visscher v SafeWork NSW [2024] NSWIRComm 1012; 328 IR 400 Visscher v SafeWork NSW [2024] NSWIRComm 1038 Young v Cooke [2016] NSWSC 1386 Z v University of A (No 8) [2004] NSWADT 100 Texts Cited: Christopher Corns, Public Prosecutions in Australia, Law, Policy and Practice (2014, Lawbook Co Director of Public Prosecutions Bill Industrial Court Bill 1990 Industrial Relations Bill 1990 Industrial Relations Bill 1991 New South Wales Legislative Assembly Parliamentary Debates (Hansard), 17 May 1990 New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 1 December 1986 VLRC Contempt of Court Report, February 2020. Category: Procedural rulings Parties: Timothy Visscher (Applicant) Warren Fripp (Respondent) Director of Public Prosecutions (NSW) (Intervenor) Representation: Counsel: Dr D T Kell SC with A Mykkeltvedt (Respondent) J Davidson (Intervenor)

The Parties Submissions

Mr Visscher relied upon written Submission on the Separate Question filed on 30 July 2024 (AS), Submission in Reply to the Submissions of the Respondent filed on 16 September 2024 (ARS1) and Submissions in Reply to the Submissions of the DPP filed on 17 September 2024 (ARS2). In those submissions Mr Visscher sought to rely upon a statement he had filed in the proceeding on 11 June 2024, which set out matters going to the merits of the Amended Application. At the hearing of the Separate Question on 26 September 2024 Mr Visscher did not seek to tender any evidence, but at one stage during oral submissions did refer to his statement as if it were in evidence. [7] I explained to Mr Visscher that the determination of the Separate Question did not involve any consideration of the merits of the Amended Application and that there was no evidence currently before me, but that those matters would be considered if I were to answer the Separate Question in the affirmative. [8] Mr Visscher indicated his understanding of that approach and voiced no objection to it. [9]
The Respondent relied upon written Submissions filed on 19 August 2024 (RS). The Respondent had also filed and sought to tender an Affidavit of David Yang, a solicitor employed by the solicitor for the Respondent, affirmed 19 August 2024, which annexed two letters, one sent by Mr Yang to Mr Visscher and one sent by the DPP to me, unsolicited, following the DPP being notified of my orders of 22 July 2024, a copy of which I had directed the Registrar to send to Mr Yang. Both letters set out legal arguments as to why the Commission would not make an order directing the DPP to prosecute Mr Fripp for perjury. I determined to regard the two letters as submissions made by the Respondent rather than evidence.
The DPP relied upon written Submissions filed on 10 September 2024 (DPPS).
As observed at [9] above, given the words used in the chapeau of s 164(1), in order to determine whether the Commission has power to direct that a person be prosecuted for perjury by the DPP, one must establish a source of power for the Supreme Court to make such a direction. It is common ground that there is presently no statutory provision expressly conferring on the Supreme Court the ability to direct any person to bring a prosecution against someone for perjury. It is also common ground that such a provision did exist prior 25 November 1990, as I will explain in more detail below.
Mr Visscher contended that the Supreme Court has the power to direct the DPP to prosecute a person for perjury by reason of ss 22 and 23 of the Supreme Court Act 1970 (NSW) and/or the inherent jurisdiction of the Court. Sections 22 and 23 of the Supreme Court Act provide as follows: 22 Continuance The Supreme Court of New South Wales as formerly established as the superior court of record in New South Wales is hereby continued. 23 Jurisdiction generally The Court shall have all jurisdiction which may be necessary for the administration of justice in New South Wales.
Mr Visscher contends that perjury is an "administration of justice" offence. This was properly accepted by the Respondent and not disputed by the DPP. [10] Further, while the Respondent noted, by reference to the remarks of Kirby J in Batistatos v Roads and Traffic Authority of New South Wales (2006) 226 CLR 256; [2006] HCA 27; and by Beazley P in Commissioner of Corrective Services v Liristis (2018) 98 NSWLR 113; [2018] NSWCA 143, that there is a question as to whether, after 1970, the source of the Court's jurisdiction to do that which is necessary in the interests of justice is s 23 of the Supreme Court Act, rather than any separately existing 'inherent' jurisdiction and powers, that distinction in the present matter is neither here nor there as the Respondent (and the DPP) accept that the Supreme Court has the jurisdiction and the power to do that which may be "necessary" for the administration of justice in New South Wales. In circumstances where this was common ground, I do not propose to discuss further the source of this jurisdiction.
Mr Visscher submitted that it was "necessary" for the Supreme Court to have the jurisdiction to direct that a witness be prosecuted for perjury because: 1. the crime of perjury strikes at the heart of the administration of justice and the Court is "concerned that its proceedings are not brought into disrepute by perjury" [11] ; 2. there is presently an "absence of a statute law specifically conferring to [the Supreme Court] the jurisdiction to direct that a witness be prosecuted for perjury, [such that] jurisdiction is so conferred pursuant [to] the broad terms of ss 22 and 23 of the SC Act" [12] ; 3. as a matter of law "prosecutions for perjury must be done pursuant to s 338 of the Crimes Act", which restricts who may bring such a prosecution, and accordingly, the IRC, whilst exercising the functions of the Supreme Court must direct the DPP to so prosecute as permitted by s 338(1)(a) of the Crimes Act [13] ; 4. further, pursuant to s 7(1)(a) of the Director of Public Prosecutions Act 1985 (NSW) (DPP Act), one of the principal functions and responsibilities of the DPP is "to institute and conduct, on behalf of the Crown, prosecutions (whether on indictment or summarily) for indictable offences in the Supreme Court and the District Court…" and as perjury is a serious indictable offence [14] , punishable by imprisonment for up to 10 years, the direction must be made to the DPP, rather than any other person [15] ; 5. in the absence of a direction from the Court, the DPP otherwise has no obligation to commence a prosecution as the bringing of a prosecution is a matter over which the DPP otherwise has discretion, which is unsusceptible to judicial review, such that where there is admissible evidence which provides a reasonable prospect of a successful conviction (as Mr Visscher says there is in this case) it is necessary for the Court to direct that a prosecution for perjury be brought to ensure that justice is done; 6. relatedly, Mr Visscher pointed to s 9 of the DPP Act which allows the DPP to take over a prosecution instituted by a person other than the DPP and, by s 9(4)(b) may decline to proceed further in the prosecution or to carry the proceeding further. This ability he says, supports the view that where the Supreme Court (or the Commission) determines that there is a reasonable prospect of conviction, it must direct the DPP to commence (and implicitly maintain) a prosecution for perjury to ensure that it discharges its duty to ensure justice is done. [16]
In relation to the reason outlined at (5) above, Mr Visscher pointed to the fact that by reason of this proceeding the DPP has been given the information supporting his allegation of perjury against Mr Fripp, yet has not commenced to prosecute Mr Fripp. He submitted that this supported his argument that it was "necessary" for the Commission to direct the DPP to do so to ensure the proper administration of justice, otherwise the prosecution may never be brought or may be discontinued if brought by him, with leave, as a private prosecution. According to Mr Visscher: "… the administration of justice doesn't fall on the shoulders of a private individual, in this case a litigant in person. We would have a, a less-than-ideal standard of justice, if that's a word, if it fell to a private individual to enforce the law." [17]
While Mr Visscher acknowledged that the Supreme Court has a general power to direct that court documents be referred to the DPP, so that the DPP can consider whether a charge of perjury should be laid, he submitted that the wording of s 164(1)(d) of the IR Act indicated that Parliament intended that it is for the Commission, rather than the DPP, to consider whether a charge of perjury should be made and that it should direct the DPP to bring a prosecution where it has admissible evidence before it to support such a charge. In other words, s 164(1)(d) indicates that the Commission is to do something more than merely refer papers to the DPP. Mr Visscher says the legislative history with respect to s 164 of the IR Act and the now repealed version of s 340 of the Crimes Act, which I discuss below, supports this interpretation. Indeed, Mr Visscher went so far as to say that a mere referral of papers "would constitute an actual or constructive refusal to exercise the jurisdiction and power conferred under s 164(1)(d) of the IR Act" [18] , and further, questioned whether the Commission, as a create of statute, "has jurisdictional power to merely refer material to the DPP for his or her consideration of whether to prosecute." [19]
Relatedly, Mr Visscher submitted that in circumstances where the judicial officer before whom the alleged perjury took place made no finding that the alleged perjurer had lied, as is the case in this matter, there will be nothing for the Court/Commission to refer to the DPP. According to Mr Visscher in those circumstances s 164(1)(d) enables and instructs the Commission to conduct, on application, an inquiry as to whether there is a prima facie case of perjury, with reasonable prospect of success, and if it finds that there is, to direct the DPP to commence a prosecution against the putative offender.
Both the Respondent and the DPP submitted that it is not "necessary" for the administration of justice in NSW for the Supreme Court to have a power to direct prosecutions for perjury to be commenced or conducted where: 1. s 338(1) of the Crimes Act enables a prosecution for perjury to be commenced by the DPP or the Attorney General, where considered appropriate; and 2. it is an "incident of its jurisdiction" [20] for the Supreme Court - and in turn the Commission - to refer matters to the DPP (or the Attorney General) for consideration as to whether it is in the public interest that a prosecution for perjury should be brought.
Both the Respondent and the DPP submitted that the Supreme Court is not empowered, by s 338 of the Crimes Act or otherwise, to interfere with the exercise of the DPP's principal statutory function of, inter alia, instituting and conducting prosecutions for indictable offences, except where the commencement or maintenance of such proceedings would be an abuse of the Court's processes. In support of this submission the Respondent and the DPP noted that: 1. at a general level, s 23 of the Supreme Court Act does not extend "to permit an order that a government officer exercise a discretionary power in a particular way": Commissioner of Corrective Services v Liristis (2018) 98 NSWLR 113; [2018] NSWCA 143 at [63] per Basten JA; 2. the independence of the DPP is well recognised - as Gaudron and Gummow JJ in Maxwell v The Queen (1996) 184 CLR 501; [1996] HCA 46 observed at [26]: "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." Consistent with this view, in Likiardopoulos v The Queen (2012) 247 CLR 265; [2012] HCA 37 at [2] and [37] the High Court confirmed that judicial review of the exercise of prosecutorial discretion is generally unavailable.
Both the Respondent and the DPP accepted that there was a "potential inconsistency" between the limited role they contend the Supreme Court has in relation to a perjury prosecution under s 338 (1) of the Crimes Act, (namely, that it is limited to granting leave to a person to bring a prosecution pursuant to s 338(1)(c)), and the language of s 164(1)(d) of the IR Act, which appears to implicitly assume the Supreme Court has power to direct that a witness be prosecuted for perjury.
The Respondent and the DPP say that this "inconsistency" or "surplusage" [21] is explained by the legislative history of predecessors to s 338 of the Crimes Act. They submitted that while as a general principle of statutory construction "the presumption against surplusage is a valuable guide to ascertaining the legal meaning of statutes", [22] the presumption may be displaced if there is a "good reason" [23] . In this case they say, the relevant "good reason" is supplied by the legislative history of s 164(1)(d) of the IR Act and s 338 of the Crimes Act. Mr Visscher contends otherwise.
Prior to 25 November 1990, when the Crimes (Public Justice) Amendment Act 1990 (NSW) commenced, s 340 of the Crimes Act empowered judicial officers, including judges of the Supreme Court, to "direct" that a person be prosecuted for perjury. The former s 340(1) provided that: "Where any statement on oath has been made by any person in any suit, proceeding, or matter, pending in the Supreme Court, or District Court, or before any Judge of any such Court or any magistrate, the Judge or magistrate before whom the same was so made, may, if reasonable cause appears for so doing, direct such person to be prosecuted for perjury in respect thereof, and may, subject to the Bail Act 1978, commit him to take his trial at the proper court, and may require any person then present to enter into a recognizance to give evidence against the person whose prosecution is so directed. Where there is a committal by a magistrate and bail is not granted the magistrate may issue any necessary warrant."
The legislation was silent as to who the prosecutor would be in such circumstances.
The Crimes (Public Justice) Amendment Act 1990 substituted Pt 7 of the Crimes Act (of which s 340 was a part and which was titled "Perjury and like offences") and Pt 8 (titled "Conspiracy to accuse of crime") with a new Pt 7 titled "Public justice offences". Chapter 4 of Pt 7 (ss 324-339) is titled "Perjury, false statements etc". The amendments replaced the power of Courts, judges and magistrates under s 340 to direct that a person be prosecuted for perjury with s 338, which, together with s 341, imposed restrictions on prosecutions for perjury.
In the Second Reading Speech for the cognate Bill, the then-Attorney General, Mr John Dowd, relevantly stated: "…At present only specific courts are empowered to direct a prosecution for perjury. Under the bill before the House, the Director of Public Prosecutions and the Attorney General of the day may prosecute for perjury. A person who wishes to prosecute privately must first seek the leave of the judicial officer before whom the perjury is alleged to have been committed, unless this is impracticable or impossible, in which case the prosecution may be commenced with the leave of the Supreme Court." [24]
Before the Crimes (Public Justice) Amendment Act 1990 was assented to (on 18 September 1990) and before it came into force (on 25 November 1990), the Industrial Relations Bill 1990 and the Industrial Court Bill 1990 (the 1990 Bills) were introduced in the Legislative Assembly. These bills passed the Legislative Assembly on 22 May 1990, but lapsed before they were introduced in the Legislative Council. Relevantly, s 32 of the Industrial Court Bill 1990 proposed to give the Industrial Court the power to exercise certain functions of the Supreme Court as follows: "Powers of the Court as to the production of evidence 32. The Court may exercise the functions of the Supreme Court in relation to: (a) compelling the attendance of witnesses and examining them on oath or affirmation, or by use of a statutory declaration; and (b) compelling the production, discovery and inspection of books, records, documents and other papers; and (c) compelling witnesses to answer questions which the Court considers to be relevant in any proceeding before it; and (d) the apprehension, detention and punishment of persons guilty of contempt, or of disobedience to any order made by the Court, or of disobedience to any process issuing out of the Court; and (e) directing that a witness be prosecuted for perjury" (emphasis added).
This appears to be the first iteration of what is now s 164 of the IR Act. The Industrial Arbitration Act 1940 (NSW) then in force did not contain an equivalent provision giving the Industrial Commission established under that Act power to exercise the specified functions of the Supreme Court. However, s 124 of that Act provided: "Whosoever, before a committee or the commission, wilfully makes on oath any false statement knowing the same to be false shall be guilty of perjury."
The 1990 Bills were drafted on the basis of a green paper presented to the Government by Professor John Niland in 1989 and extensive public consultation. At the time the green paper was prepared, and at the time the 1990 Bills were drafted, the Supreme Court (and other courts and judicial officers) had power to direct that a witness be prosecuted for perjury under s 340 of the Crimes Act.
After the 1990 Bills lapsed, the Industrial Relations Bill 1991 was introduced in Parliament and proposed a wide-ranging reform to the industrial relations system in NSW. The reforms were also based on Professor Niland's green paper. That Bill was passed in October 1991 and was assented to on 11 November 1991 and became the Industrial Relations Act 1991 (NSW) (1991 Act). It repealed the Industrial Arbitration Act 1940 and contained an equivalent to s 32 of the Industrial Court Bill despite the Supreme Court's power to direct that a person be prosecuted having been repealed in November 1990. Section 308 of the 1991 Act provided: "Powers of the Industrial Court as to the production of evidence 308. The Industrial Court may exercise the functions of the Supreme Court in relation to: (a) compelling the attendance of witnesses and examining them on oath of affirmation, or by use of a statutory declaration; and (b) compelling the production, discovery and inspection of books, records, documents and other papers; and (c) compelling witnesses to answer questions which the Industrial Court considers to be relevant in any proceeding before it; and (d) the apprehension, detention and punishment of persons guilty of contempt, or of disobedience to any order made by the Industrial Court, or of disobedience to any process issuing out of the Industrial Court; and (e) directing that a witness be prosecuted for perjury" (emphasis added).
The current IR Act repealed the Industrial Relations Act 1991. Section 164(1) of the IR Act is in equivalent terms to s 308 of the 1991 Act, except that the enumerated powers were expressed to be exercisable by the "Commission" (not just the Industrial Court) and the sub-section did not include the power to deal with a person for contempt, as had been provided or under s 308(1)(d) of the 1991 Act. That power was instead included in s 164(2), which was repealed on 8 December 2016 by the Industrial Relations Amendment (Industrial Court) Act 2016 (NSW) and recently re-introduced on 1 July 2024 by the Industrial Relations Amendment Act 2023 (NSW). Section 164(1) of the IR Act remains in the same form as when it was enacted, 28 years ago,
Mr Visscher submitted that there was no "good reason" for the presumption against surplusage to be displaced. He says that it must be assumed that Parliament knew that s 340 of the Crimes Act had been repealed a year earlier when it enacted s 308 of the 1991 Act. Moreover, he pointed to the fact that Parliament enacted the current IR Act in 1996, that is five years after the 1991 Act, by including a term, namely s 164(1)(d), in virtually identical terms to s 308. He submitted that: "If the Parliament had any concerns about the operation and enforceability of s 164(1)(d) it has had ample opportunity to address those concerns. It has not done so." [25]
Mr Visscher further submitted that in any event, there was no "potential inconsistency" arising in respect of s 338(1) of the Crimes Act and s 164(1)(d) of the IR Act and that no issue of "surplusage" arises. Mr Visscher submitted that both provisions could be read harmoniously, namely s 164(1)(d) enables the Commission to direct that a witness be prosecuted for perjury, which direction would not offend s 338(1) if the direction was given to the DPP to bring the prosecution.
Both the Respondent and the DPP pointed out that to this point in time the power to direct that a witness be prosecuted for perjury has not been recognised as an incident of the Court's inherent jurisdiction or available under s 23 of the Supreme Court Act. No party was able to refer to a case where the Supreme Court had directed any person to be prosecuted for perjury, since the abolition of s 340 of the Crimes Act. The DPP noted that in Young v Cooke [2016] NSWSC 1386 at [18], Adamson J explained that the Court lacked power to grant leave to institute proceedings for perjury in circumstances where the judicial officer mentioned in s 338(1)(c) of the Crimes Act had refused leave. Her Honour did not suggest or consider any other statutory (or inherent) source of jurisdiction for the Supreme Court to grant leave to commence proceedings for perjury.
Mr Visscher referred to two decisions which he contended supported the view that the Supreme Court nevertheless has power to direct that a person be prosecuted for perjury. The first was another decision of her Honour Justice Adamson, in Rail Corporation of NSW v Elleray [2017] NSWSC 1726. In that matter the Prothonotary of the Supreme Court sought an order pursuant to s 23 of the Supreme Court Act that a direction made by Kite AJ in proceedings before the Industrial Court of New South Wales, be revoked. In those proceedings Kite AJ had made the following direction after delivering judgment: "I order that this matter be referred to the Industrial Registrar for the commencement of proceedings under s 180 of the Industrial Relations Act 1996 (NSW) for punishment of the respondent's contempt of the Commission."
The Industrial Registrar, in purported compliance with the direction, instructed the Crown Solicitor to give advice as to the commencement of the prosecution. Before any such proceedings had been commenced, the Industrial Relations Amendment (Industrial Court) Act 2016 (the Amending Act) came into force.
The Amending Act abolished the Industrial Court and provided that its functions be transferred to the Supreme Court. The Amending Act inserted into the Industrial Relations Act s 355B, which relevantly provided that the Supreme Court had jurisdiction over "proceedings for an offence against any industrial legislation (including proceedings for contempt of the Commission)".
As a consequence of the transfer of functions to the Supreme Court, the Prothonotary of the Supreme Court instructed the Crown Solicitor in relation to the direction made by Kite AJ. Certain advice was provided by the Crown Advocate to the Prothonotary in relation to sufficiency of evidence. There was no waiver of privilege in respect of that advice however, apparently in consequence of that advice, on 22 August 2017 the Prothonotary instructed the Crown Solicitor to file a notice of motion seeking the revocation of Kite AJ's direction.
Mr Visscher referred to the following parts of Adamson J's decision: The Prothonotary's standing to make the application 18. The first question is whether the Prothonotary has standing to make the present application. The Industrial Relations Rules 2009 (NSW) did not include an express provision by which a judicial member could direct the Industrial Registrar to commence proceedings for contempt. However, s 164(2) of the Industrial Relations Act provided for a general conferral of power on the Industrial Court to exercise the functions of the Supreme Court, relevantly in relation to the punishment of persons guilty of contempt. 19. In my view, functions in connection with punishment of persons guilty of contempt include the directing of the commencement of contempt proceedings that could result in the punishment of such persons. The functions of the Supreme Court within the meaning of s 164(2) of the Industrial Relations Act would engage the power of the Supreme Court under Pt 55 r 11(1) of the Supreme Court Rules to direct the Registrar to commence a prosecution for contempt. 20. I am satisfied that Kite AJ on 21 May 2015 relevantly had the power to direct the Prothonotary to apply by motion to commence proceedings for contempt. Accordingly, the Prothonotary has standing to apply for revocation of such a direction if appropriate. This Court's power to make the order sought 21. The next question is whether this Court has power to make the order sought to revoke the direction made by Kite AJ. I am satisfied on the basis of Mr Kell's careful submissions that while the Amending Act inserted several transitional provisions, did not make any express provision for the withdrawal of directions such as the present. Clause 61 of Sch 4 abolished the Industrial Court but otherwise confirmed the continuation of the Industrial Relations Commission. The Supreme Court now has jurisdiction in relation to proceedings for an offence of contempt of the Commission. The Supreme Court is, accordingly, the successor court to the Industrial Court in relation to such proceedings. Clause 68 of Sch 4 provides that unexercised rights to apply to the Industrial Court to exercise a function are preserved. By cl 68(3) the Supreme Court may exercise all of the functions of the Industrial Court in relation to such a right as if it had been made before abolition day. However, the express terms of the transitional provisions, including cl 68(3), do not in terms empower this Court to withdraw the direction of Kite AJ. 22. In these circumstances the question arises whether this Court's jurisdiction under s 23 of the Supreme Court Act, which provides that this Court is to have "all jurisdiction which may be necessary for the administration of justice in New South Wales", is sufficient for the order sought by the Prothonotary in the amended notice of motion to be made. 23. I am satisfied on the basis of Mr Kell's submission that no other Court or Commission has jurisdiction to make the order sought, this Court being the successor court to the Industrial Court. 24. If I were to refuse the order sought, it would be necessary for the Prothonotary, notwithstanding what I infer to be advice to the contrary, to commence proceedings for contempt which are neither sought by the ultimate beneficiary of the payments, namely RailCorp, nor by Mr Elleray who would be relieved of the obligation to answer any contempt proceedings. It is undesirable that refusing to make the order sought would mean that the Prothonotary would have no choice but to commence proceedings in this Court only to seek that they be discontinued if it were appropriate to do so or if the Prothonotary were advised, for example, that the proceedings did not have reasonable prospects of success. 25. I am satisfied on the basis of the submissions made by Mr Kell that it is necessary for the administration of justice in New South Wales that I have jurisdiction to make the order sought in the amended notice of motion filed in court on 11 December 2017. Accordingly, by reason of s 23 of the Supreme Court Act, this Court does have jurisdiction to make the order sought.
The other case relied upon by Mr Visscher was Benedek and Anor v Meng and Anor [1997] NSWSC 675. In that matter Graham AJ found that certain evidence assembled by the second plaintiff was not "authentic" and after giving judgment for the second defendant made an order directing that the impugned evidence "and the Transcript (sic) of the evidence of the second plaintiff be referred to the Director of Public Prosecutions to consider whether a charge of perjury should be laid against the second plaintiff in respect of the omission from the plaintiffs' verified List of Documents of the documents comprised within Exhibits P and Q."
According to Mr Visscher this order confirmed that the Supreme Court has a general power to "direct" matters to the DPP. He also submitted that his Honour merely directed the DPP "to consider whether a charge of perjury should be made" (rather than commence a prosecution) as his honour had only found that the evidence was "not authentic" or had been "omitted". Mr Visscher submitted that s 164(1)(d) "sets the bar much higher to 'directing that a witness be prosecuted perjury'" and that for "the exercise of the power conferred by s 164(1)(d) it must be the case that the Parliament intended the Commission to be satisfied that the admissible evidence before it to support a charge of perjury provides a reasonable prospect of a successful prosecution". Accordingly, Mr Visscher submitted: "For the exercise of the power to direct it is for the Commission, not the DPP, to consider whether a charge of perjury should be made." [26]

Consideration

Despite the lengthy discussion above, the reasons why the answer to the Separate Question is 'no' may be relatively stated briefly.
Put simply, there is no express statutory provision allowing the Supreme Court to direct the DPP to bring a prosecution for perjury and such a power is otherwise not necessary for the administration of justice in New South Wales. As the Supreme Court does not have the power to direct the DPP to bring a prosecution for perjury, neither does the Commission.
Since 1986, when the Director of Public Prosecutions Act was enacted, the DPP has been principally responsible for instituting and conducting prosecutions for serious crime on behalf of the Crown. The Supreme Court may, as an "incident of its jurisdiction" [27] , refer matters to the DPP for consideration as to whether it is in the public interest that a prosecution for perjury should be brought and, consistent with the legislative intent behind the Director of Public Prosecutions Act, the Crimes (Public Justice) Amendment Act 1990 and the separation of powers doctrine, it is appropriate that the DPP approach that task without interference from the judiciary. Moreover, given the DPP's statutory responsibility and independence, it cannot be seriously said that the DPP would not bring a prosecution for perjury where it was appropriate for it to do so.
As explained by Dr Christopher Corns in Public Prosecutions in Australia, Law, Policy and Practice: "The primary reason for the creation of the office of DPP was to create independence in prosecutions by separating prosecutorial functions from political processes." [28] … "Prior to the 1980s in Australia, there was little legal regulation and little understanding of prosecution practices. The prosecution system was basically run by the police in all the summary courts, and in the higher courts, by various Crown Law officers within the executive Government - usually in conjunction with private barristers. Courts of Appeal rarely considered prosecution-related issues. There was no dedicated legislation covering prosecutions in general, little case law and internal departmental guidance for prosecutors was scarce. All this has radically changed since the 1980s with the gradual introduction of the office of DPP supported by a large number of staff including Crown prosecutors. This has been achieved by statutes and regulations formally establishing the various components of the prosecution system and setting out their respective roles and powers." [29]
Independence in prosecutions also refers to independence from the judiciary. As also explained in Public Prosecutions in Australia, Law, Policy and Practice: "The general principle is that the DPP and other public prosecutors are independent from the judiciary. This is an aspect of the separation of powers doctrine." [30]
In his Second Reading speech for the Director of Public Prosecutions Bill and related Bills, the then Attorney-General, the Honourable Terry Sheahan stated: "Its principal features are first, the office of the Director of Public Prosecutions is to be established. This will mean that the general responsibility for the prosecution of serious criminal offences in this State will be vested in a single person, who is politically independent." [31] … "To ensure that the community will be confident that the decisions of the director will be independent from political considerations, it is provided that the director will be appointed until the age of 65 years, with similar pension entitlements as those enjoyed by judges of this State. It is intended also that the director will be paid the same salary and allowances as a Supreme Court judge. The high status of the director's position, and the security of tenure provided, will ensure that the director is freed from any suggestion or appearance that he or she is open to political pressure. There will be no reason to fear that the director may make decisions to curry favour with the Government of the day, in order to secure reappointment or advancement." [32]
I do not consider it a coincidence that the statutory provision which previously empowered judicial officers, including judges of the Supreme Court, to "direct" that a person be prosecuted for perjury was removed from the Crimes Act in November 1990 and the common law offence abolished, four years after the creation of the office of the DPP. It is certainly no coincidence that s 338 first and foremost, expressly permits the DPP to bring a prosecution for perjury.
By enacting the Director of Public Prosecutions Act the legislature empowered the DPP to decide, free from interference, whether a prosecution for indicatable offences should be brought. As explained in Public Prosecutions in Australia, Law, Policy and Practice: "In deciding whether to proceed to trial, for example, the relevant prosecutor must be satisfied that there is a reasonable prospect of conviction and the valuable resources of the courts, the relevant public prosecution department, and legal aid bodies (if applicable) are not wasted, and that the stress and possible trauma for affected persons can be justified. In other words, the prosecutor must be satisfied that prosecution is in the public interest. The DPP thus acts as a type of "gatekeeper" to the higher courts and can also influence the length of trials in terms of the number and type of charges laid (eg conspiracy), and the number of witnesses to be called. These prosecutorial decisions thus "frame" criminal trial." [33]
It is clear that in enacting the reforms to Pt 7 of the Crimes Act in November 1990 by the Crimes (Public Justice) Amendment Act 1990, the legislature intended that the DPP should be the principal prosecuting authority for the crime of perjury and in that role, act as a 'gatekeeper' to the bringing of such prosecutions. This is supported by the Second Reading Speech of Attorney General Mr John Dowd referred to at paragraph [38] above. However, it is also clear that the legislature intended there to be two other avenues by which a prosecution could be brought.
First, it provided, by s 338(1)(b) that a person could be prosecuted for perjury "at the direction of the Attorney General". This is consistent with the view that while the DPP is independent and "has taken over the vast bulk of prosecution work previously performed by the Attorney General" [34] , the Attorney General retains certain prosecution powers. As the Attorney General said his Second Reading Speech for the Director of Public Prosecutions Bill: "More recently, other statutory powers have been given to the Attorney General. One such power is the right to appeal to the Court of Criminal Appeal against the leniency of a sentence passed in the Supreme or District Courts. All these powers reside in the Attorney General because of his present position as the first law officer in the State. They derive from his historic function as the Crown's Attorney in England and later as the infant colony's grand jury. The measures in the Director of Public Prosecutions Bill will preserve the Attorney General's traditional role and the powers that go with it, but at the same time create an important new office to share responsibility for criminal prosecutions. It would defy the principles of responsible, democratic government if the Attorney General were to abdicate totally his responsibility for such an important area of government, in favour of a person who is not elected, and thus not answerable to Parliament or the community. However, it is proper, in order to facilitate a more efficient and consistent prosecution policy, and to provide for what is perceived as a more independent decision-making process, that the Government should give authority to a person to exercise these powers on a day-to-day basis. This is what is done by the provisions of the Director of Public Prosecutions Bill. In other jurisdictions, which have legislated to establish the office of Director of Public Prosecutions, the situation is more or less the same. The Attorney General retains some measure of control, and immediate responsibility, for the prosecution of serious criminal offences. Although the bill does not take away any of the Attorney General's functions or powers, it does ensure that the Attorney General is accountable to Parliament if, and when, he exercises them." [35]
Second, the Crimes (Public Justice) Amendment Act 1990 allowed, by s 338(1)(c), for a private prosecution to be brought, provided leave is obtained from the judicial officer who constituted the judicial tribunal before which the perjury is alleged to have been committed or, by s 338(2) if that is impossible or impracticable, leave of the Supreme Court. As Christopher Corn writes in Public Prosecutions in Australia, Law, Policy and Practice: "… up until the mid 19th century in England, private citizens played an important role in initiating and paying for a criminal prosecution, but this role gradually disappeared with the development of professional police forces and later, public prosecution officers. In Australia, private prosecutions were less common, but following English law, the right of citizens to commence a prosecution has always been regarded in Australia as an important civil power. The right of a private citizen to bring a criminal prosecution is still recognised in statute, …" [36]
In circumstances where the DPP is empowered to bring a prosecution for perjury, the Attorney General may direct that a prosecution be brought and where a Court may grant leave for a private prosecution, it is not "necessary for the administration of justice" for the Supreme Court to also have the power to direct the DPP (or anyone else) to bring such a prosecution. The situation is not analogous to the situation confronting Adamson J In Rail Corporation of NSW v Elleray, where her Honour had no option other than to invoke s 23 of the Supreme Court Act to achieve justice.
Indeed, I would go further and say that the canon of construction expression unius est exclusio alterius (the mention of one thing is the exclusion of another), indicates that the legislature, when it enacted the Crimes (Public Justice) Amendment Act 1990 And specifically s 338 of the Crimes Act, clearly intended that the Supreme Court should not have the power to direct that a prosecution for perjury be brought. Had the legislature intended the Supreme Court - or any Court or judicial officer - to have the power to direct that a person be prosecuted for perjury it would have included a provision in similar terms to s 338(1)(b), (referring to the Court instead of the Attorney General), but it did not. As Isaacs J said in Le Mesurier v Connor (1929) 42 CLR 481; [1929] HCA 481 at 512-513: ""It is, indeed, a principle of logic and of common sense, and not merely a technical rule of construction," to use the words of Broom's Maxims (9th ed., at p. 430), that where the framers of a document have expressed their intentions as to a given subject, it cannot be said they have left their intentions on that subject to implication. Such a position is self-contradictory."
I reject Mr Visscher's submission that where the Supreme Court considers that there is a reasonable prospect of conviction for perjury it must direct the DPP to commence a prosecution for perjury to ensure that it discharges its duty to ensure that justice is done. This submission misapprehends the nature of the Court's duty.
Undoubtedly the Court has a duty to ensure that justice is done in the judicial proceeding before it. If the Court considers that a witness has made a false statement on oath, to ensure justice is done the Court must not accept that witness' evidence and must make findings and deliver judgment consistent with the proved facts. However, directing that that witness be prosecuted for perjury is not necessary to ensure that justice is done in the matter before the Court. While the party aggrieved by the lying witness may wish for the witness to have some kind of retribution visited upon them, namely in the form of a conviction for perjury, such retribution is not necessary to resolve the justiciable matter before the Court.
The Court also has a duty to safeguard the administration of justice and consistent with that duty it should, where it believes an offence has been committed, refer the matter to the relevant authority. As Hall J said in in Simpson v Hodges [2007] NSWSC 1230: [268] A judicial officer who believes that offences have been committed is under a duty to refer the proceedings to the relevant authority: [Normandy Woodcutters Ltd v Simpson [2002] NTSC 43 at [53] per Mildren J]. Accordingly, where evidence is given in proceedings in this Court that reasonably suggests that an offence has or may have been committed in relation to proceedings conducted before it, the Court has a duty to refer the proceedings. As Mildren J observed in [Normandy Woodcutters Ltd v Simpson [2002] NTSC 43], referring the papers is not an exercise of judicial power and no findings are made and no injury to anyone's reputation arises by a mere referral. Nor, as his Honour observed, is the judicial officer required to give anyone an opportunity to be heard in such a matter. [269] In light of the evidence to which I have referred and for the above reasons, the Registrar of this Court will be directed to forward a copy of these reasons for judgment to the Director of Public Prosecutions and to make available, as may be required, the full transcript of these proceedings and the exhibits for inspection by any officers authorised in that behalf by the Director of Public Prosecutions.
Thus, if the Supreme Court (or any court) considers that a person has committed perjury (noting that this requires not only a false statement on oath, but also that the statement be "material to the proceedings" and made in the knowledge that it was false or without a belief that it was true), the Court will adequately address the matter by referring the papers to the DPP or the Attorney General. Contrary to Mr Visscher's submissions, the Court does not need to ensure that a prosecution is bought to discharge its duty. The Court may have confidence that any decision by either the DPP or the Attorney General not to bring a prosecution in respect of a complaint it has referred to them, is properly based upon a conscientious assessment by them that it would not be in the public interest for such a prosecution to be brought.
I do not accept Mr Visscher's submission that as a creature of statute the Commission does not have the power to refer papers to the DPP without an express statutory provision allowing it to do so. In Australian Building and Construction Commissioner v Parker (No 2) (2017) 270 IR 165; [2017] FCA 1082, the Federal Court, being a statutory court, indicated it would make an order referring several witnesses to the DPP. The Respondent also referred to a decision of the New South Wales Administrative Decisions Tribunal in Z v University of A (No 8) [2004] NSWADT 100, in which the reference was made (at [14]) to another case where the Tribunal had referred papers to the DPP. In my experience it is a common practice for Courts and tribunals to refer papers to the DPP and I have no doubt that this Commission may refer papers to the DPP as an "incident of its jurisdiction."
I am fortified in my view that a referral of papers to the DPP (or the Attorney General) is sufficient to ensure the administration of justice, without the need for the Court to direct that a prosecution for perjury be brought, by the fact that no case has been found, post the Crimes (Public Justice) Amendment Act 1990, whereby the Supreme Court has directed the DPP, or indeed any person, to commence a prosecution for perjury.
Further, it is entirely a matter for the Supreme Court how it might best address, consistent with its powers, any perceived interference with the administration of justice. A person has no right to apply to the Supreme Court to have the Court order the taking of a particular action by the Court itself or another authority, in respect of a perceived interference or assault upon the administration of justice. As I have already explained, a person does have a common law right (which may, as is the case with perjury, be curtailed by statute) to commence proceedings for a administration of justice offence, such as contempt: European Asian Bank AG v Wentworth (1986) 5 NSWLR 445; Director of Public Prosecutions v Australian Broadcasting Corporation (1987) 7 NSWLR 588 at 595; but they do not have the right to seek that the Court or another authority commence such proceedings.
This was explained by Moffat J in Killen v Lane [1983] 1 NSWLR 171 at 176 and 177 in the context of contempt of court: "The power of the court to commence summary proceedings, either in the most informal manner, that being where the contempt is in the face of the court or to do so in a more formal way by its officer on its direction issuing and serving some originating process, has always been recognised as a power exercisable by the court on its own motion. To accord to a person a right to make an application to the court, to be determined judicially by it, that the court so commence and maintain summary proceedings to punish for contempt of court, either by ordering the arrest and by orally charging the contemnor, or by directing an officer of the court to commence and pursue such proceedings on its behalf not only lacks the support of precedent or authority, but would be inconsistent with the nature and purpose of the power which the court has long exercised entirely on its own responsibility. … The initiation by the Crown or other constituted authority of criminal proceedings generally, or the initiation of proceedings by the court or Attorney-General to punish for criminal contempt, involves different considerations to proceedings by a person for the exercise by the court of a power to make an order which will enforce private rights. A person may allege to the Crown or authority having the power to commence criminal proceedings that a criminal offence has been committed or may allege facts which constitute such an offence, but has no right to compel the Crown or such authority or, in the case of criminal contempt, the court or the Attorney-General to commence proceedings or to seek a court order having this consequence. The right of the court to act on the allegation of some person [in respect of contempt] is and formally was as now provided in r 2 and r 11(1), so that the province of any person is to do no more than informal or allege, so as to leave the commencement of proceedings entirely a matter for the court as a ministerial decision taken of its own motion. The provision in these rules is consistent with the practice which preceded the rules."
Contempt of court is a matter that remains wholly within the purview of the courts, the common law and legislation governing the conduct of courts and tribunals (see e.g. s 180 of the IR Act, which prescribes the offence of contempt of the Commission), unlike perjury and other public justice offences which are found in and regulated by, the Crimes Act. [37] Nevertheless, it is clear that to the extent the Supreme Court has power to compel any person to commence proceedings for a public justice offence, such as contempt or perjury, it is a power exercisable only on the court's own motion. Thus, even if I am wrong, and the Supreme Court does have power, through s 23 or any residual inherent power, to direct the DPP, or any other person, to commence a prosecution for perjury, I do not consider this to be a power that the Court can be compelled to exercise upon application by a person to the Court.
I drew the decision of Killen v Lane, to the attention of the parties during submissions and provided a copy of the decision to them during the morning tea adjournment. I explained to Mr Visscher before the adjournment that the decision suggested that even if I considered that the Supreme Court did have the power to direct the DPP to commence a prosecution for perjury, this would only be something that the Court would do of its own motion, that is, it "wasn't something that someone could apply to have the Court to do." [38]
Mr Visscher submitted that this was not the case because, as in the present case, there may be nothing before the Court/Commission that would support an allegation of perjury and hence without the ability to apply and present evidence to the Court/Commission, the Court/Commission would not act of its own motion.
In my view this does not enliven some power of the Court/Commission to hear and determine applications from aggrieved persons for the Court to direct the DPP (or the Attorney General) to commence and maintain a prosecution for perjury. Aside from the fact that this would be contrary to the approach the courts have taken to its role in the initiation of public justice offences, and not supported by any authority, if someone considers there is admissible evidence that would support a prosecution, but that evidence was not presented to the court during the hearing, they may apply for leave to bring a private prosecution pursuant to s 338(1)(c) of the Crimes Act or they may provide the evidence to the DPP or the Attorney General to enable them to consider whether a prosecution should be brought. In other words, the matter is not at an end just because the Court/Commission before whom the alleged perjury is said to have been committed, is unaware of the alleged perjury and therefore will not act of its own motion to take action in respect of the alleged perjury.
I also do not accept Mr Visscher's submission that a failure by the Commission to make a direction that a person by prosecuted for perjury where there was cogent evidence that the offence had been committed would constitute a failure to exercise jurisdiction. Section 164(1) of the IR Act does not impose, in and of itself, any obligation on the Commission. It merely outlines certain functions which the Commission may, in its discretion, exercise. At the risk of repetition, to ascertain the exact nature of those functions, one must have regard to functions of the Supreme Court with respect to the matters listed in s 164(1). At present, as agreed by all the parties, there is no legislative provision that expressly gives the Supreme Court the power to direct that a witness be prosecuted for perjury and for the reasons already set out, I do not consider it to be necessary for the administration of justice that the Supreme Court have such a power. Further, for the reason set out at [66] above, s 338 of the Crimes Act does not permit of a construction which allows the Supreme Court any power to make a direction that a person be prosecuted for perjury. In short, s 164(1)(d) currently bestows no function or power upon the Commission.
While it is unusual for a statutory provision to have no work to do, and prima facie contrary to the usual approach to statutory interpretation that "a court construing a statutory provision must strive to give meaning to every word of the provision" and "that no clause, sentence, or word shall prove superfluous, void, or insignificant, if by any other construction they may all be made useful and pertinent" [39] , I do not consider there to be any "surplusage" or "potential inconsistency" with s 164(1)(d) and s 338 of the Crimes Act. As Dr Kell submitted: "The scaffolding of section 164 still exists … it's just simply not having work to do at the moment. Parliament might amend other legislation dealing with perjury in the Crimes Act in future without having to go back and then do a checklist of necessarily amending 164 because 164 would then pick it up, but it's not necessarily there's this glaring inconsistency before the Commission that has to be addressed and resolved." [40]
Or as Ms Davidson, counsel for the DPP submitted: "…the legislative history does provide an explanation of what occurred but also that section 164(1)(d), whilst it may presently be regarded as not having work to do, it is a vessel for the functions that the Supreme Court has or a conferral of functions that the Supreme Court has from time to time and the Supreme Court's functions may be the subject of legislative amendment. That then has the advantage of not requiring further amendment to the Industrial Relations Act. That is instead of there needing to be such amendment within and then affecting the powers of this Commission, it may be done by amendment to other instruments dealing with the Supreme Court's powers in respect of perjury." [41]
I agree with those submissions. Section 164(1) does not, by its terms and contrary to Mr Visscher's submissions, oblige the Commission to direct a witness to be prosecuted for perjury. The section at present has no work to do. That does not mean that the Commission would do nothing in the face of apparent perjury committed before it. In that event, as explained above, it would refer the papers to the DPP or the Attorney General.
To the extent that the continued reference in s 164(1)(d) of the IR Act to an apparent power of the Supreme Court to direct that a witness be prosecuted for perjury offends the presumption against surplusage I consider the legislative history of Part 7 of the Crimes Act and the IR Act and its predecessors, to provide a "good reason" to displace the presumption. While I accept that it is somewhat remarkable that the anomaly would remain present for over thirty years, the dearth of authority concerning s 164(1)(d) suggests either that instances of perjury before the Commission have been very rare, and/or that the Commission has understood that it has no power to direct a witness to be prosecuted for perjury and that, consistent with usual practice, it has referred instances of possible perjury to the DPP or Attorney General. Either circumstance would explain why the apparent redundancy of s 164(1)(d) has not been brought to the attention of the legislature. As Mr Visscher suggested in ARS1 [11], "apparently, this is the first occasion of the invocation of the jurisdiction and power conferred by s 164(1)(d) of the Act." If that is correct, and it appears it may be, that would readily explain why s 164(1)(d) remains in the IR Act.
In any event, even if the legislative history does not provide "good reason" to displace the presumption and the Commission were to strive to read s 338 and s 164(1)(d) harmoniously, as urged by Mr Visscher, as Ms Davidson submitted: "… reading the two provisions harmoniously … does not address the absence of power in the Supreme Court in respect of direct[ing] a prosecution for perjury. … The fact that those two provisions generally should be read harmoniously gives no content to the inherent power or the inherent jurisdiction of the Supreme Court."

Visscher v Fripp

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Judgment (11 paragraphs)

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