fe amma CATCHWORODS Administrative Law - Application to review the decision of a magistrate in the course of committal proceedings - no grounds established which demonstrated that the magistrate failed to address the correct question of law - no failure to exercise jurisdiction sufficient to warrant review - observations with respect to filing of ex officio indictment. Administrative Decisions (Judicial Review) Act 1977 Crimes Act 1914 dustices Act 1902 (W.A.) No. WAG 51 of 1987 WARREN CLIVE WOODS v. DAVID WILFORD WALSH, MALCOLM DAVID STEINBERG & IVAN HAROLD WILTSHIRE FORSTER, J. PERTH 10 DECEMBER, 1987 Sea rae eonee way ToT epee at ' Sean eer ger CONES TO pe cinco Gyale hn Oren TO Zt. he SOs a) ' t- t . oe ee IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT No. WAG 51 of 1987 ) ) ) ) REGISTRY ) ) ) GENERAL DIVISION BETWEEN: WARREN CLIVE WOODS Applicant ~ and - DAVID WILFORD WALSH First Respondent - and - MALCOLM DAVID STEINBERG Second Respondent - and - IVAN HAROLD WILTSHIRE Third Respondent MINUTE OF ORDERS JUDGE MAKING ORDER FORSTER J. ery WHERE MADE PERTH DATE OF ORDER 10 DECEMBER, 1987 THE COURT ORDERS THAT: 1. The application is dismissed. 2. The applicant pay the costs of the second and third respondents to be taxed. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. f. ashen vt a AT PTA "om ' ' a is AT me ee eee Len cere ereememrnt Ei . ' ras reoegperer pre TT ace nar IN THE FEDERAL COURT OF AUSTRALIA WESTERN AUSTRALIA DISTRICT REGISTRY No. WAG 51 of 1987 wwe ee ww GENERAL DIVISION BETWEEN: WARREN CLIVE WOODS Applicant - and - DAVID WILFORD WALSH First Respondent - and - MALCOLM DAVID STEINBERG Second Respondent - and - IVAN HAROLD WILTSHIRE Third Respondent REASONS FOR JUDGMENT CORAM: Forster, J. : This is an application to review the decision made by the first respondent David Wilford Walsh, a stipendiary magistrate ("the magistrate") in the course of proceedings being a preliminary hearing pursuant to the provisions of the Justices Act 1902 (W.A.) in respect of complaints for indictable offences contrary to the Crimes Act 1914. The second respondent Maicolm David Steinberg ("Steinberg") and the third respondent Ivan Harold Wiltshire ("Wiltshire") had each been charged by the applicant Warren Clive Woods as complainant with conspiring to SS Re pee Lnigee reee SIP TE re re rt itn y a oe et avec we geen ry 2. defraud the Commonwealth and conspiring to prevent or defeat the execution or enforcement of a law of the Commonwealth. The conspiracies charged concern a scheme to avoid payment of sales tax by a group of companies called the Leisure and Allied Industries Group ("LAI"). After lengthy committal proceedings the magistrate decided that there was insufficient evidence to put Steinberg and Wiltshire on trial and they were discharged. When the matter first came on for hearing the second and third respondents moved the court for an order striking out the application on the basis that no reasonable grounds for the application had been disclosed. After hearing submissions on the motion I was not satisfied that the application for review was so unlikely to succeed as to warrant it being struck out and so I declined to make the order sought. I did not think it appropriate to express any further reasons for that decision prior to the full hearing of the application and did not do so. It is clear on the authority of Lamb v. Moss (1983) 49 A.L.R. 533 that a magistrate presiding over committal proceedings is exercising an administrative function and his decision is one of an administrative character sufficient to attract jurisdiction pursuant to the Administrative Decisions (Judicial Review) Act 1977. However this power to review should be exercised only in most exceptional cases and I respectfully agree with the observations of Fox J. in Q''Donovan v. Vereker (unreported decision 15 October, 1987) that the exercise of this power "is apt to provide an undue and unsatisfactory interference with the administrative and judicial process". "po 3. The application specified various grounds in support of an order of review. The grounds which I consider to be of greatest weight are those which if established would demonstrate that the magistrate failed to address the correct question of law arising in the committal proceedings so that there has been no proper exercise of jurisdiction. During the hearing of the motion counsel for the applicant made submissions which tended to establish the existence of grounds of this nature. I considered these grounds to be of sufficient substance to require further investigation and on this basis dismissed the motion brought on behalf of the second and third respondents. The major ground advanced by the applicant is that the only conspiracy considered by the magistrate was one between Steinberg and Baker, the promoter of the scheme to avoid sales tax, and that he failed to consider a separate conspiracy involving Steinberg and Wiltshire. The only other ground of substance is whether in reaching the decision that Wiltshire was not a co-conspirator the magistrate relied on irrelevant considerations. Counsel for the applicant did not identify any other failure to take into account a relevant finding or reliance on an irrelevant finding which was so apparent and of sufficient substance to justify an order of review. Each of these grounds would require a detailed examination and assessment of the evidence put before the magistrate and Ido not consider this appropriate in an application of this nature. 4. The only grounds which I do consider are proper are those which if established would amount to a failure to exercise jurisdiction. The first of these is whether the only conspiracy considered by the magistrate was one involving Steinberg and Baker. The failure to advert to the possibility of any other relevant conspiracy involving Steinberg and Wiltshire may well amount to a failure to exercise jurisdiction sufficient to warrant review. It is apparent from the transcript and from the reasons expressed by the magistrate that the most obvious conspiratorial agreement arising on the evidence was one between Steinberg and Baker and that Wiltshire could not be implicated in that conspiracy. However, the finding that Wiltshire was not involved in a conspiracy with Baker and Steinberg does not necessarily mean that there was no consideration given to the possibility of another conspiracy between Steinberg and Wiltshire. If the magistrate had specifically stated that the only conspiracy he was required to consider was one between Baker, Steinberg and Wiltshire and none other then he would have misdirected himself and thus failed to exercise the jurisdiction entrusted to him. The magistrate stated in his reasons, "It cannot be said that Wiltshire and Steinberg had a common purpose, which is an essential ingredient to the offence of conspiracy". The applicant submits that this finding was only with respect to a conspiracy involving Baker. The respondents say this is a general finding with respect to any possible conspiracy involving Steinberg and Wiltshire. While it is by no means clear from the expressed findings of the magistrate, on balance I am not satisfled that the magistrate failed to consider a conspiracy which did not involve Baker. I rely in large part on the 5. finding of the magistrate plainly stated that Wiltshire and Steinberg had no common purpose. As it stands the statement is unequivocal and it is not qualified in any obvious way by the context in which it appears. The other ground of substance was the alleged reliance by the magistrate on irrelevant considerations in deciding that Wiltshire was not a co-conspirator. The relevant passage in the ruling of the magistrate is as follows - "Wiltshire must be considered inva different light to Steinberg. Of importance, Steinberg was the chief executive and policy maker. Wiltshire, though second in charge, played a_ subservient position to Steinberg. Steinberg had a proprietary interest in the LAI group; Wiltshire did not. There is no evidence of any monetary award over and above his normal salary being paid to Wiltshire. It is clear from the evidence that Wiltshire as an employee merely assisted Steinberg in the avoidance of sales tax. It cannot be said that Wiltshire and Steinberg had a common purpose, which is an essential ingredient to the offence of conspiracy." Counsel for the applicant submitted that the existence or otherwise of any or all of these factors does not preclude the finding at law of a conspiracy involving Wiltshire. He then extrapolates from this premise the submission that the critical finding of no common purpose was based on irrelevant considerations and as such constituted an improper exercise of power by the magistrate. I accept the possibility of a conspiracy irrespective of the factors identified by the magistrate. Not one of these matters is of necessity fatal to — tare 6. the finding of a conspiracy. However one cannot conclude as a matter of logic that the identification of these factors means that the decision was based on irrelevant considerations. In the particular circumstances of this case the finding on the evidence with respect to these factors made it logically less probable to find that the.e was an agreement, conspiratcrial in nature, between Steinberg and Wiltshire. Put in another way, if the opposite of any of the factors mentioned in the passage quoted above could be positively established these would be relevant matters to take into account when deciding whether or not there was evidence of any common purpose. If this be so it seems to me logically inescapable that the matters mentioned although not individually or collectively compelling are relevant to be considered. The prosecution made submissions with respect to these factors during the course of the committal proceedings in support of the allegation that Wiltshire was part of a conspiratorial agreement. However, the evidence did not support the contentions advanced by the prosecution. The findings of the magistrate on the evidence with respect to these matters tended to refute the case put forward by the prosecution. The importance of these findings is not that they positively and necessarily rebut the allegation of conspiracy against Wiltshire but rather that they tend to contradict the case against hin. The only significance of these particular factors is as part of the overall ruling of the magistrate that there was insufficient evidence to put Wiltshire or Steinberg on trial. semen ' ' ' yee pose gee a ee as a aioe sf 7. I mention as a relevant factor weighing against granting an order for review of the magistrate's decision not to commit for trial that if the case against Steinberg and Wiltshire is as strong as is submitted the Attorney-General of Australia could still file an ex officio indictment against Steinberg and Wiltshire. There has been a full committal hearing so that what was said in Barton v. The Queen (1980) 147 C.L.R. 75 that to proceed by ex officio indictment is unfair and otherwise undesirable because the accused is deprived of an opportunity to hear and test the evidence against him at committal has no force in this case. The applicant has not established any ground on which he is entitled to succeed in his application for an order of review. The application is dismissed with costs. I certify that this and the 6 preceding pages are a true copy of the Reasons for Judgment of Mr Justice Forster. va) Associate Mechel fel . Dated: to "Yeunkes 19S F Counsel for the applicant : Mr E.M. Heenan Q.C. with Mr S.W. O'Sullivan Australian Government Solicitors for the applicant Solicitor Mr H. McLernon Counsel for the respondents Solicitors for the respondents : Robinson Cox 14, 15 October, 1987 " Dates of hearing es aot t wet cr a eee _ per ter ee bap meng ae ee een ees