Johnson, Malcolm Keith v Holmes, Ralph Murray & Ors [1997] FCA 1069

FEDERAL COURT OF AUSTRALIA ADMINISTRATIVE LAW - application for judicial review of certain decisions - no time stipulated for the making of the application - whether the application was made within a reasonable time Administrative Decisions (Judicial Review) Act 1977 Companies (South Australia) Code 1981 Criminal Law Consolidation Act 1935 (SA) Crimes (Taxation Offences) Act 1980 (Cth) Duff v Freijah (1982) 62 FLR 280 applied Hunter Valley Developments Pty Ltd v Kohen (1984) 3 FCR 344 applied Newby v Moodie (1988) 83 ALR 523 applied MALCOLM KEITH JOHNSON v RALPH MURRAY HOLMES & NATIONAL CRIME AUTHORITY & THE COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS NO SG 54 OF 1997 O'LOUGHLIN J ADELAIDE 16 OCTOBER 1997

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY SG 54 of 1997

BETWEEN: MALCOLM KEITH JOHNSON

Applicant

AND: RALPH MURRAY HOLMES

First Respondent

NATIONAL CRIME AUTHORITY

Second Respondent

THE COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS

Third Respondent

JUDGE: O'LOUGHLIN J

DATE OF ORDER: 16 OCTOBER 1997

WHERE MADE: ADELAIDE

THE COURT ORDERS THAT: 1. The application by Malcolm Keith Johnson be dismissed. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY SG 54 of 1997

BETWEEN: MALCOLM KEITH JOHNSON

Applicant

AND: RALPH MURRAY HOLMES

First Respondent

NATIONAL CRIME AUTHORITY

Second Respondent

THE COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS

Third Respondent

JUDGE: O'LOUGHLIN J

DATE: 16 OCTOBER 1997

PLACE: ADELAIDE

REASONS FOR JUDGMENT Application pursuant to the provisions of the Administrative Decisions (Judicial Review) Act 1977 ("the Judicial Review Act") for an order that the Court refuse to entertain an application for an order of review in relation to certain decisions. On 25 June 1993 an information was laid in the Adelaide Magistrates Court alleging that Malcolm Keith Johnson, together with Michael John Fuller and Joseph Patrick Cummings, conspired to cheat and defraud at common law. A second information against Mr Johnson was laid out of the same Court on 22 February 1994 containing twenty eight counts. In the first fifteen counts, it was alleged that Mr Johnson, being an officer of a corporation, made improper use of his position to cause detriment to the corporation, contrary to the provisions of subs 229(4) of the Companies (South Australia) Code 1981 ("the Code"). The remaining counts allege that Mr Johnson, being a director of a public company, fraudulently applied the property of that company for a use or purpose other than the use or purpose of that company, contrary to the provisions of ss 189 and 269 of the Criminal Law Consolidation Act 1935 (SA). At the time of the laying of the two informations, Mr Johnson was residing in the United Kingdom. On 9 December 1994, whilst still a resident of that country, he was arrested under a provisional request of the Commonwealth of Australia for his extradition and on the basis of two warrants earlier issued out of the Adelaide Magistrates Court. He was granted bail on terms and has been on bail in the United Kingdom ever since. The Commonwealth's formal request for extradition was received in the United Kingdom on 20 January 1995 and on 18 July the Secretary of State for the United Kingdom authorised the institution of extradition proceedings against Mr Johnson. On 7 November 1995 the Bow Street Magistrates Court fixed 3 June 1996 as the date upon which the application for an order of extradition would commence. The matter duly came on for hearing and an order for extradition was made. Mr Johnson unsuccessfully appealed by way of writ of habeas corpus to the Divisional Court of the High Court and on 9 June 1997 the House of Lords refused Mr Johnson his petition for leave to appeal. I was told from the bar table that he is currently seeking judicial review of the Home Secretary's decision to affirm an order for extradition. This brief review of relevant facts and dates establishes that Mr Johnson became aware, no later than 9 December 1994 when he was arrested, of the existence of the criminal proceedings that had been instituted against him in Australia. However, it was not until 7 July 1997, over two and a half years later, that Mr Johnson sought judicial review in this Court of various decisions that he identified as decisions relative or incidental to the ultimate decision that criminal charges be laid against him. In his amended application for judicial review filed on 11 August 1997, he nominated eleven decisions that he claimed should be reviewed by this Court. They are as follows:- The first decision The decision of the National Crime Authority ("the NCA") to investigate and to continue to investigate the alleged offences pursuant to various References that were issued in October and November of 1991. The second decision The decision of all respondents to prosecute Mr Johnson for the alleged offence in the Information dated 25 June 1993. The third decision The decision of all respondents to issue and lay the Information dated 25 June 1993. The fourth decision The decision of the Commonwealth Director of Public Prosecutions ("the DPP") to conduct the proceedings arising out of the laying of the Information dated 25 June 1993. The fifth decision The decision of all respondents to prosecute Mr Johnson for the alleged offences in the Information dated 22 February 1994. The sixth decision The decision of all respondents to issue and lay the Information dated 22 February 1994. The seventh decision The decision of the DPP to conduct the proceedings arising out of the laying of the Information dated 22 February 1994 The eighth decision The decision of all respondents to engage in, and to continue to engage in, decisions relating to the conduct of the prosecution in regard to both Informations. The ninth decision The decision of all respondents to utilise the services of Ralph Murray Holmes, the first respondent, in his capacity as a State Police Officer. The tenth decision The decision of all respondents to seek the extradition of Mr Johnson from the United Kingdom to Australia. The eleventh decision The decision of all respondents to engage in, and to continue to engage in, conduct for the purpose of the extradition process. If the matter is to proceed for determination upon its merits, it would seem that some complex questions of law are likely to arise. For example, it is alleged that the NCA was not entitled to investigate the alleged Code and State offences in the manner in which it conducted its investigations. It will also be argued that, in any event, Mr Holmes, the first respondent, was not entitled to engage in certain decision making processes. The extent of the intended challenge may be gauged by the proposition in the amended application that the DPP "was not lawfully entitled to conduct the proceedings arising out of the decisions to charge the offences alleged ... ". There is also a challenge to the authorisation that the Commonwealth Attorney-General purported to grant to Mr Holmes on 15 February 1994 to lay charges under subs 229(4) of the Code against Mr Johnson. As to these charges, it is alleged that they were an invalid exercise of power because: "(i) the Authorisation does not specify in which capacity the first respondent was to institute the proceedings; (ii) the first respondent was not entitled, either by reason of the failure to enter into or gazette an Arrangement pursuant to Section 92 of the Corporations (South Australia) Act 1990 or, alternatively, the provisions of the National Crime Authority Act to institute the proceedings." The respondents have claimed that the application by Mr Johnson was not made to this Court within a reasonable time. They have submitted, by notice of motion filed on 16 September 1997, that this Court should "refuse to entertain" the application. It being common ground that there are no statutory or other provisions identifying the time within which an applicant may seek review of decisions such as those that are the subject of the amended application in this matter, the provisions of subs 11(4) of the Judicial Review Act apply to the respondents' notice of motion. That subsection provides, so far as is relevant, as follows: "(4) Where: (a) no period is prescribed for the making of applications for orders of review in relation to a particular decision; or (b) ... the Court may: (c) in a case to which paragraph (a) applies - refuse to entertain an application for an order of review in relation to the decision referred to in that paragraph; or (d) ... if the Court is of the opinion that the application was not made within a reasonable time after the decision was made." The provisions of subs 11(5) need also to be borne in mind. They provide, so far as is relevant as follows: "(5) In forming an opinion for the purposes of subsection (4), the Court shall have regard to: (a) the time when the applicant became aware of the making of the decision; and (b) ...; and may have regard to such other matters as it considers relevant." Counsel for Mr Johnson, submitted that in assessing any issue of alleged delay in this matter, the Court should make its calculations as from 1 May 1997. That was the day upon which Mr Johnson first instructed legal advisers in Australia to act on his behalf in relation to the charges that are the subject of the extradition proceedings. Counsel's submission included the proposition that prior to 1 May, Mr Johnson had been represented by legal advisers in the United Kingdom and that they "were not aware of, and could not reasonably be expected to be aware of, the Australian law and procedure relating to these proceedings". I do not think that this proposition completely states the picture. It may be true that Mr Johnson's legal advisers in the United Kingdom may not have known all the intricacies of the Australian legislative provisions relevant to these proceedings, including the somewhat unique cooperative scheme between the Commonwealth and the States involving the NCA, but there is evidence clearly pointing to the fact that Mr Johnson's counsel in the United Kingdom was alive to his client's rights to challenge in Australia the authorities' attempts to have him extradited. Stephen John Vorreiter was, at the time of the hearing of the extradition proceedings in the United Kingdom, a solicitor in the employ of the DPP and the person charged with the carriage of the prosecution against Messrs Johnson, Fuller and Cummings. In his affidavit of 16 September 1997 which was read on this application, Mr Vorreiter deposed that he was present during the hearing of the proceedings in the Bow Street Magistrates Court. He deposed that Mr Johnson's counsel, Mr Robert Marshall-Andrews QC referred to a "proposed challenge to the validity of the arrest warrants in Australia which were the foundation for the request for extradition". Mr Vorreiter attached to his affidavit an extract from Counsel's written submissions. So far as they are relevant to this application, the submissions were as follows: "The extradition proceedings are purport to be based upon warrants issued in Australia and exhibited to the Affidavit of Mr Ross Christoforou dated the 15th November 1994. The warrants were issued pursuant to certain information laid in the South Australia Magistrates' Court which are also exhibited to that Affidavit. The Defendant puts the Prosecution to strict proof as to the propriety of the warrants and the information upon which they are based. In particular whether the Informations were properly laid in accordance with the Constitution and properties governing Australian law."