O'Meara v Magistrates of the Local Courts of New South Wales [2001] FCA 1542

FEDERAL COURT OF AUSTRALIA O'Meara v Magistrates of the Local Courts of New South Wales [2001] FCA 1542

Federal Court Rules Order 20

Judiciary Act 1903 (Cth)s 39B(1A), (1B), (1C), 39B(3), s 68 Administrative Decisions Judicial Review Act 1997 (Cth) s 9A, Schedule 1 Jurisdiction of Courts Legislation Amendment Act 2000 (Cth) Director of Public Prosecutions Act 1983 (Cth) s 9

Phong v Attorney General for the Commonwealth [2001] FCA 1241 applied Sergi v Director of Public Prosecutions (Kirby P, Meagher, Handley JJA,10 September 1991, unreported) R v Murphy (1985) 158 CLR 596 KENNETH IAN O'MEARA v MAGISTRATES OF THE LOCAL COURTS OF NEW SOUTH WALES & ORS N 1338 OF 2001 HELY J 19 OCTOBER 2001 SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 1338 OF 2001

BETWEEN: KENNETH IAN O'MEARA

APPLICANT

AND: MAGISTRATES OF THE LOCAL COURTS OF NEW SOUTH WALES & ORS

RESPONDENT

JUDGE: HELY J

DATE OF ORDER: 19 OCTOBER 2001

WHERE MADE: SYDNEY

THE COURT ORDERS THAT: 1. The application is dismissed. 2. The respondent pay the costs of the third, fourth, fifth, eighth and ninth respondents of the proceedings including the motions for dismissal of the proceedings. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY N 1338 OF 2001

BETWEEN: KENNETH IAN O'MEARA

APPLICANT

AND: MAGISTRATES OF THE LOCAL COURTS OF NEW SOUTH WALES & ORS

RESPONDENT

JUDGE: HELY J

DATE: 19 OCTOBER 2001

PLACE: SYDNEY

REASONS FOR JUDGMENT 1 It is better that I should give my decision immediately, if only because it concerns criminal proceedings which have been instituted against the applicant which are listed for hearing in the near future. In those circumstances considerations of justice indicate that I should not delay in giving judgment as I have reached a firm view about the matter, even though I would have preferred some time within which to consider the best way of expressing that view. 2 The applicant has instituted proceedings in this Court in which he seeks a writ of prohibition against twelve respondents, some of whom are officers of the Commonwealth and others of whom are not. The basis upon which the writs of prohibition are sought is s 39B of the Judiciary Act 1903 (Cth) ("Judiciary Act"). The third respondent has lodged a notice of objection to the competency of the application upon the ground that the Court lacks jurisdiction to deal with it, having regard to the recent amendments to the Judiciary Act and to the Administrative Decisions Judicial Review Act 1997 (Cth) ("ADJR Act") effected by the Jurisdiction of Courts Legislation Amendment Act 2000 (Cth) which came into force on 30 May 2000. 3 In addition, the third, fourth, fifth, eighth and ninth respondents have taken out Notices of Motion seeking summary dismissal of the proceedings so far as any relief sought against those respondents is concerned. 4 I have come to the conclusion that the application for writs of prohibition under s 39B should be dismissed insofar as it seeks relief against the third, fourth, fifth, eighth and ninth respondents. I have also come to the conclusion that the application for orders of review under the ADJR Act in respect of committal orders made on 15 June 2001 and 15 August 2001 should be dismissed. In each case I have concluded that a reason for dismissal is that the Court lacks jurisdiction to entertain the claims. 5 The fourth respondent is not an officer of the Commonwealth. I have rejected the applicant's contention that the legislation which creates the New South Wales Director of Public Prosecutions is unconstitutional. Hence there is no matter arising under the Constitution or involving its interpretation which might enliven the jurisdiction of this Court in terms of s 39B(1A) and (1B) of the Judiciary Act. The Federal Court has no power to prohibit the fourth respondent from prosecuting the applicant in the courts of New South Wales for contravention of the laws of New South Wales, absent some specific conferral of jurisdiction in that respect, and there is none. Mr O'Meara submitted that jurisdiction to issue a writ against the fourth respondent arises by reason of the fact that writs of prohibition are sought in these proceedings against Commonwealth officers. However, jurisdiction does not arise in relation to the fourth respondent by reason only of the fact that writs are also sought against Commonwealth officers. 6 The third respondent, the fifth respondent and the eighth and ninth respondents are Commonwealth officers. The jurisdiction of this Court in relation to those officers would once have been enlivened by virtue of s 39B(1) of the Judiciary Act. But as a result of the Jurisdiction of Courts Legislation Amendment Act 2000 (Cth) the Federal Court lacks jurisdiction to entertain these claims either by reason of s39B(1B) or section 39B(1C) of the Act, considered in the light of the definition of "related criminal justice process decision" in s 39B(3). The decision of the Full Court of this Court in Phong v Attorney General for the Commonwealth [2001] FCA 1241 ("Phong"), supports the proposition that the jurisdiction of this Court in relation to a decision to prosecute is excluded by virtue of s 39B(1B), even though the prosecution has been instituted. 7 Once Mr O'Meara's attention was drawn to these amendments, he accepted, if I correctly understood him, that the effect of the amendments was to exclude any entitlement on his part to prohibition against Commonwealth officers. My decision in this respect is based upon my construction of the legislation, rather than acceptance of any concession which Mr O'Meara may have made, assuming that I correctly understood him to have made one. Similarly, the Court has no jurisdiction to entertain the applications under the ADJR Act, by reason of the corresponding limitations on the Court's jurisdiction under that Act, now incorporated in s 9A and Schedule 1. 8 Further, I have come to the conclusion that even if this Court did have jurisdiction to entertain the applicant's claim, the proceedings should nonetheless be dismissed under Order 20 of the Federal Court Rules on the basis the Federal Court would not in the exercise of its discretion, grant a writ of prohibition against the relevant respondents which would have the effect of staying the criminal proceedings. That is because the power to issue such a writ is discretionary and a powerful factor bearing upon the exercise of the discretion is the availability of some alternative and more suitable remedy. 9 If, as Mr O'Meara contends, there has been some irregularity, illegality or other impropriety in connection with the prosecution process, the trial judge is fully seized of the matter and has power in an appropriate case to grant a permanent stay of the prosecution. The decision of the Full Court in Phong is perhaps the latest, but only one of a number of decisions in a line of cases which have consistently warned against unnecessary and undesirable fragmentation of the criminal process. 10 If as Mr O'Meara contends the processes of the criminal courts are being abused by those who seek to invoke them, then the judge of the court in question is fully equipped to deal with that contention. It is a matter for the trial judge in the District Court, or in the case of proceedings pending in the Local Court, for the magistrate to determine whether the trial should proceed. 11 In relation to the particular decisions sought to be reviewed pursuant to the ADJR Act, even if there were jurisdiction to review the decisions of the magistrates to commit Mr O'Meara for trial, review of those decisions would be an exercise in futility, as bills of indictment have been found which overtake the magistrates' decisions. So much is established by the decision of the Court of Criminal Appeal in Sergi v Director of Public Prosecutions (Kirby P, Meagher, Handley JJA, 10 September 1991, unreported). That provides a further foundation for my conclusion that even if there were jurisdiction to review the relevant decisions, the application should nonetheless be dismissed under Order 20. 12 Mr O'Meara submitted that the Commonwealth Director of Public Prosecutions cannot prosecute in the New South Wales District Court. That contention is without substance. The power of the third respondent to prosecute by indictment derives from s 9 of the Director of Public Prosecutions Act 1983 (Cth), and the jurisdiction of a State Court to deal with such proceeding derives from s 68 of the Judiciary Act. In R v Murphy (1985) 158 CLR 596 617-618, the Court upheld the constitutional validity of s 68 to confer this jurisdiction on State Courts. 13 There is one final factor to which I advert, but which is peculiar to the position of the fifth, eighth and ninth respondents, who it might be loosely said, are police officers or officers of the Taxation Department rather than relevant decision-makers. Those respondents have no power to alter or revoke any of the decisions under challenge. That provides a further reason why the claims against them should be dismissed under Order 20, even if contrary to my basic conclusion, jurisdiction otherwise existed in this Court. 14 In the result I propose to order that the application insofar as it seeks relief against the third, fourth, fifth, eighth and ninth respondents should be dismissed. It follows that I uphold the objection to competency lodged by the third respondent. 15 The third, fourth, fifth and eighth to ninth respondents to the proceedings themselves seek orders for their costs of the proceedings and for their costs of the motions pursuant to which the proceedings were dismissed. Mr O'Meara opposes that order, essentially on two grounds. First, it is virtually, if not totally, unheard of, for the Crown to seek costs in criminal proceedings; second, he is a bankrupt and the making of an order for costs would not provide any material benefit to the successful respondents but would be detrimental to him. 16 These are not criminal proceedings. They are civil proceedings in which Mr O'Meara brought a collateral attack against the criminal proceedings in circumstances where it is the policy of Parliament and the general policy of the law to discourage such collateral attacks. I have no evidence as to Mr O'Meara's financial position but I am prepared to assume for the purpose of dealing with this application, that it is as he put to me. That does not provide a sufficient reason for not making an order for costs against him, even though it may be (and I simply do not know), that such an order might be of little or no benefit to those who have sought it. 17 Ordinarily, the successful party in civil proceedings could expect to receive its costs of those proceedings unless there was some reason for making a different order. I do not mean by that that there is any particular presumption, it is just that the exercise of the discretion which the Court has would normally be exercised in that way. In the circumstances, I think the proper order is that the third, fourth, fifth, eighth and ninth respondents should have their costs of the proceedings and of the motions which they took out, and I so order. 18 Mr O'Meara has made it perfectly clear, but politely, that he disagrees with my decision, and proposes to appeal against it. That, of course, is his right. He also recognises that the logical consequence of the decision I have made is that if I were to consider the claims which he has made against the other respondents, I would dismiss the claims. In those circumstances and so that he can, if he wishes, test my decision by an appeal as of right, he invites me without prejudice to his position to dismiss the application as a whole. In those circumstances, I dismiss the application insofar as it seeks relief against all respondents. I certify that the preceding eighteen (18) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Hely.