NEW SOUTH WALES MEAT INDUSTRY AUTHORITY v RANDALL and ANOR SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL MAHONEY AP, PRIESTLEY and CLARKE JJA 21 March 1994, 20 April 1994 [1994] NSWCA 228 PREROGATIVE RELIEF — Against order by District Court — Appeal under Justices Act 1902, s122 dismissed — Order that appellant pay costs — Order made in absence of appellant — Appellant not notified of date of hearing. PRIVATIVE CLAUSE — S146 of Justices Act 1902 — Not prevent prerogative relief where no notice given of hearing. JUSTICES ACT 1902, S122 — Notice to be given of hearing — No notice given because sent to wrong solicitor — Power of judge to proceed if s122(2C) satisfied. QUASHING ACQUITTAL — Double jeopardy — Not apply where no hearing. DISCRETION TO REFUSE RELIEF — Circumstances not warrant refusal. ORDERS 1. Certiorari granted. 2. First respondent to pay costs of applicant and second respondent and to have a certificate under the Suitors' Fund Act. Mahoney JA Brian James Randall was convicted before a magistrate of breaches of the law in respect of the sale of meat and otherwise. He was fined, ordered to pay court costs, witnesses' expenses and professional costs and was no doubt involved in the payment of professional costs to his own solicitor. He appealed to the District Court under the Justices Act 1902, s122. No notice of the hearing date was given to the Meat Industry Authority or to the officer of the Authority who laid the information upon which Mr Randall was convicted. Because of what appeared on the court papers, his Honour Judge O'Reilly QC concluded that notice had been given. Accordingly, his Honour allowed the appeal and quashed the conviction. He ordered "that the respondent pay the appellant's costs of the proceedings assessed at $1500...". The Authority has applied to this Court for relief in the nature of certiorari to quash the orders made by the learned judge. It is, in my opinion, not open to doubt but that notice of the date of the hearing of the appeal should have been given to the Authority or its inspector (I shall not distinguish between the two) and was not so given. Notification of the lodgment of the appeal was given to the Authority and the notice indicated that the appeal was "to the District Court at Bega". However, the document apparently forwarded to the Authority stated: "The appellant has been advised that a Notice of Listing advising the hearing date will be forwarded to him/her in due course". And it was, I think, to be understood that in due course notice of the date for hearing of the appeal would be notified to the Authority. This accords with the provisions of s122. No such notice was given to the Authority. A notice was sent 2 UNREPORTED JUDGMENTS by an officer of the District Court but it was sent, not to the private solicitor acting for the Authority in the matter, but to another solicitor. The application has proceeded upon the basis that the notification did not come to the attention of the Authority at any relevant time. Accordingly, prima facie the Authority is entitled to relief in the nature of certiorari to quash the orders made. The appeal to the District Court involves a hearing of the charges de novo. The charges were dismissed without notice to the Authority and the Authority was ordered to pay a substantial sum in respect of costs. In such circumstances, prima facie, certiorari should go. Certiorari is one of the remedies by which this Court in the exercise of its supervisory jurisdiction acts to correct error by (as they are conventionally described) inferior courts. The circumstances in which traditionally certiorari will go are many and varied. In the Commissioner of Police v The District Court of New South Wales and Anor (Court of Appeal, 2 September 1993, unreported) I referred to the origin and nature of the writ of certiorari and the circumstances in which it goes to correct error of inferior courts. Those circumstances include, but are not limited to, cases in which orders have been made in the absence of jurisdiction. It will go also where, for example, the requirements of natural justice have not been observed and where error of a relevant kind appears on the face of the record of the inferior court. Subject to what I shall say, it is plain that, where notice of hearing was to be given and was not given, certiorari will ordinarily go to quash orders made in the absence of the relevant party. However Mr Reynolds, for Mr Randall, submitted that the remedy should not be granted in this case. His submissions were essentially directed to four things: the effect of s146 of the Justices Act 1902; the operation of the provisions for notice in s122; the availability of certiorari in the case of an acquittal of a criminal offence; and discretion. 1. S146 OF THE JUSTICES ACT 1902: $146 provides: "146. No conviction or order of a Justice or Justices, or adjudication upon appeal of the District Court, shall be removed by any order into the Supreme Court." However, the effect of a privative clause of this kind depends upon the proper construction of it. In relation to privative clauses the courts have - subject to the terms of the particular clause - generally concluded that they do not prevent certiorari being granted where the orders made have been made without jurisdiction or where they have been made contrary to the requirements of natural justice. This approach to the construction of privative clauses may be seen in, eg, Parker v Director of Public Prosecutions (1992) 28 NSWLR 282. See Ex parte Northern Rivers Rutile Pty Ltd; Re Claye (1965) 82 WN (Pt1) (NSW) 514; see also R v Magistrates Court, Ex parte Morrison (1925) QSR 220; R v Shire of Fitzroy and Farrell, Ex parte Plunckett (1927) QWN 26. Subject to what I shall say as to the construction of s122, s146 is in my opinion to be construed in this way. It does not prevent relief being given by this Court in its supervisory jurisdiction where, for example, no notice whatsoever has been given of a proceeding and orders have been made in the absence of the relevant party. The section is not a bar to the grant of such relief in the present case. 2. $122 OF THE JUSTICES ACT 1902: UAEW SOUTH WALES MEAT INDUSTRY AUTHORITY v RANDALL and ANOR (Mahone9 JA) $122(1) authorises a person affected to appeal to a District Court against a conviction or order of a Justice. The section makes detailed provision in relation to the lodgment of the appeal, the hearing of the appeal and the notice to be given of the hearing. $122(2C) provides: "122(2C) The registrar for the proclaimed place at which the appeal or application is to be heard and determined shall, as soon as practicable after the receipt by him of a notice of appeal pursuant to subs(1)... give to all parties interested or concerned in the appeal or application, as the case may be, notice of the time and place fixed for the hearing of the appeal or application and, notwithstanding any error in, or non service of, that notice of hearing the District Court may proceed to hear and determine or otherwise dispose of the appeal or application if it is satisfied: (a) that each party had knowledge of the time and place fixed for the hearing and was not prejudiced by the error or non service; or (b) that the appellant or applicant, as the case may be, is avoiding service of the notice of hearing or cannot, after diligent search and inquiry, be found." $122(4) provides that notices required to be given "may be sent by registered letter, and in the case of the prosecutor or other party to the address given at the hearing... and if so sent shall be taken to have been served on the day on which such letter would be delivered in the ordinary course of post". Mr Reynolds' submissions in this regard involved, in the main, two things: that $122, by its provisions, quantified the requirements of natural justice in relation to notice and that, if the terms of the section were complied with, the requirements of natural justice are to be seen as satisfied; and that the question whether notice has been given to a respondent party is a question which, by the section, is left to be determined by the District Court and accordingly that an error made in such determination is an error within jurisdiction for which certiorari will not go. These two submissions are, of course, inter related. They turn upon the construction of the section and in particular of subs(2C) and the effect to be given to that sub-section. Before considering the construction and effect of the sub section, it is relevant to consider what in fact happened. The respondent Mr Randall tendered an affidavit by Mr Terence O'Riain, an employee of his solicitors, who was present at the District Court at Bega in November 1993 when the orders in question were made. Mr O'Riain, in his affidavit, said that, when on 22 November 1993, the matter was called on for hearing before O'Reilly DCJ there was no appearance "for the prosecution". His Honour said: "The Court file shows that the Meat Industry Authority have been notified. So there is no reason why I cannot deal with the matter today. I'll stand down this matter for later in the day. I will have them called outside the Court then." At 3 o'clock on the same day, the Authority was called and did not appear. His Honour then said: "There being no appearance of the respondent I allow the appeal and I quash the conviction in each matter." Application was made for Mr Randall for an order for costs. On the following day, 23 November 1993, after consideration had been given to costs, his Honour said: "There was no appearance for the respondent, the conviction was therefore quashed... The other aspect, of course, is that the respondent has not turned up here to prosecute the matter, it being a hearing de novo." 4 UNREPORTED JUDGMENTS His Honour saw the non appearance of the informant as being "exceptional" for the purposes of s81 of the Justices Act 1902 and in the circumstances ordered the Authority to pay the costs of the proceedings assessed at $ 1500. The transcript discloses that, as far as was recorded, no evidence was tendered, as to service or otherwise. It is not clear to what portion of the District Court file O'Reilly DCJ referred. The file has been tendered in evidence before this Court. It contains a note as follows: " LISTING INFORMATION Date Reason Notices Sent 22/11/93 Hearing 14 Oct 1993 " There is, in the file, a copy of a letter dated 14 October 1993 notifying the date of hearing as 22 November 1993, the letter being addressed: "The Solicitor for Public Prosecutions Level 2, Centretown Plaza, 128 - 134 Crown Street WOLLONGONG 2500" That solicitor was, of course, not the solicitor for the Authority in the proceeding. It is not clear whether his Honour relied upon the notation on the file and/or upon the existence in the file of the letter to which I have referred. Neither of them was formally tendered nor was any other effort made to establish, within terms of s122(2C)(a) that the Authority "had knowledge of the time and place fixed for the hearing and was not prejudiced by the error or non service". Presumably no effort was made to contact the Authority. It is common practice in this Court that, where a party is represented or otherwise is presumed to intend to appear and does not do so, the party appearing will make an inquiry, by telephone or otherwise, of the absent party. I do not know whether it is common for the Authority or other public instrumentalities to fail to appear to support convictions of this kind and to do so without notice to the court. With the benefit which hindsight gives, it may be thought to have been prudent that an inquiry be made as to why the Authority was not present: the proceeding was, in any event, to be stood over until the following day and an inquiry of the Authority might have avoided the cost, to Mr Randall and to this State, of the present proceeding. However that be, it is necessary to consider the significance, for the purposes of s122(2C), of what occurred. In my opinion, the purpose of s122(2C) was facultative: its purpose was not to prevent this Court setting aside an order where no notice was in fact given of the proceedings and the dictates of natural justice require notice to be given. I do not mean, by the use of the term "facultative", to limit the operation of the sub section: it operates according to its terms. But an examination of its terms indicates, in my opinion, that it was not intended to have the effect that, upon a judge being "satisfied", no matter how wrongly, this Court could not intervene. The mischief to which the provisions of the section are in this respect directed is, in my opinion, apparent. Experience has shown the delay, cost and inconvenience of proving in each case formal notification to "all parties interested or concerned" of the time and place fixed for the hearing of an appeal. The giving of notices is now the duty of the Registrar of the Court. The mischief to which the provisions are directed is at least twofold. The Registrar must give notice of the time and place for hearing to the parties interested or concerned. 20 an UAEW SOUTH WALES MEAT INDUSTRY AUTHORITY v RANDALL and ANOR (Mahone§ JA) First, experience has shown that delay, cost and inconvenience may be involved in proving that this was done and done effectively. Statutory provisions apart, it would have to be proved that the notice was received or probably was so. $122(4) establishes a statutory procedure and presumption that, if posted, the notice was received and the date when it was received. But, second, if that is to be availed of, it must be proved that the statutory procedure was followed. And accordingly, the situation may arise where it is clear that the parties knew in fact of the time and place of hearing but the statutory provisions were not observed. Therefore, the statute provides that, whether or not the statute has been used or followed, the hearing may proceed if the two things specified in para(a), knowledge in fact and no prejudice, have been established. In the present case, notice was in fact not given to one of the parties, the Authority. Therefore, the hearing could proceed only if the court "is satisfied" of knowledge and no prejudice. Mr Reynolds submitted that the judge was satisfied of each of these and that, he having been so satisfied, it cannot be held that natural justice was not satisfied. His submission requires an examination of what his Honour did. As I have indicated, the sub section contemplates two cases: one where notice was in fact given, personally or by statutory post; and one where there has been "error or non service" such as requires the operation of the latter part of the sub section. In my opinion, the judge confined his attention to the first of these, viz, where the notice had in fact been in given to the Authority. He saw the file note as establishing this. Therefore, he did not think it necessary to come to the second case, viz, where an error or non service had occurred such as required the support of the latter part of the sub section. This is of significance to Mr Reynolds' argument. If the authority to proceed with the hearing is to be derived from notice in fact, that authority was not established. Notice was in fact not given. The former part of the sub section, in which this is dealt with, does not turn upon the judge's satisfaction of the fact of service: it turns upon service in fact. The judge's satisfaction is relevant only if the latter part of the sub section is relied on. As there was no notice in fact, the sub section did not provide a basis for hearing the appeal in the Authority's absence. That is sufficient to dispose of Mr Reynolds' submissions in this regard. However, he has pressed, diligently and with multiple case references, an argument based on the latter part of the sub section. I shall refer to it briefly. The submission was to the effect that that part of the sub section provides that, if the judge be satisfied of the matters in para(a), the requirements of the sub section are satisfied and the judge "may proceed to hear and determine... the appeal", even if he be wrong. He called in aid cases such as Parisienne Basket Shoes Pty Ltd v Whyte (1938) 59 CLR 369. I do not think that that submission assists in this case. A statutory provision of the present kind may do one or both of two things. It may specify a condition of the jurisdiction of the court; and it may quantify the notice which it is necessary to give to satisfy, as I have described them, the requirements of natural justice. (The second of these will, of course, be relevant only if the statutory provision is as to notice). Where the provision specifies a condition of jurisdiction, certiorari may go if it is not satisfied. But, in the context of certiorari, it will be necessary to decide, as a matter of construction, what is required by the statute, ie, what it is that the statute specifies as the condition of jurisdiction. It may - to adapt the present case 6 UNREPORTED JUDGMENTS - specify the compliance in fact with the relevant condition or it may specify the judge's satisfaction that it has been complied with. The Parisienne Basket Shoes case examined questions of construction of that kind and the effect of the construction adopted upon the grant of certiorari. In this case, Mr Reynolds submitted that, where the latter part of the sub section is relied on, it is the judge's satisfaction as to para(a) which alone is the condition of jurisdiction and that therefore there has been no absence of jurisdiction. It is not necessary to pursue this submission. The claim to certiorari made by the Authority is based, not upon lack of jurisdiction, but upon the failure to comply with the natural justice requirements. Mr Murr, in his argument, made this clear. However, that does not dispose of the provision on which Mr Reynolds' argument rested, viz, the words "if it is satisfied". The sub section provides that, if the court is satisfied as there provided, it "may proceed to hear and determine... the appeal...". That, the suggestion is, is what happened in this case and accordingly no complaint can be made, by certiorari or otherwise, of what the judge did. As Ihave said, the judge was not satisfied of para(a): he did not direct attention to it. But if he had been, that would not, I think, prevent the grant of certiorari. The submission depends upon the construction of the provision. As I have said, it is, in my opinion, essentially facultative. In the absence of such a provision, a judge asked to hear a s122 appeal might feel obliged to require strict proof of service or to refuse to proceed in the absence of proof of the satisfaction of the statutory requirements. I think a provision such as this is intended to enable a judge to proceed. But, whatever be his satisfaction as to service, if in fact no notice has been given and the requirements of natural justice have not been met, certiorari may go. The provision was not, in my opinion, intended to be a statutory quantification of what is necessary to satisfy the requirements of natural justice. 3. THE EFFECT OF THE ORDER AS AN ACQUITTAL: It has been submitted that certiorari should not go to quash an order acquitting a defendant in a criminal proceeding. The general law of double jeopardy has been exhaustively stated and, for this Court, determined by the High Court in Davern v Messel (1984) 155 CLR 21. The circumstances in which, inter alia, certiorari will go to quash an acquittal have been referred to by their Honours in that case: see, eg, at 39, 50, 57 to 59. See generally R v Benz (1989) 168 CLR 110; R v Glennon (1992) 173 CLR 592. However, whatever be the content of this principle, it does not apply where there has not been an initial "jeopardy". There must have been a hearing on the merits: Davern v Messel at 62, 66. See Halsbury, Laws of England (4th ed) Vol 11, para242, and paral529. Thus, if the proceeding has been withdrawn, ordinarily the rule will not prevent a subsequent proceeding. In the present case, the matter was not disposed of on the merits or as the result of a formal and substantial hearing. There was, for example, no hearing at which Mr Randall gave evidence and the judge made findings for him. As I have indicated, the proceeding was dismissed simply because, in the absence of notice, the Authority did not appear. This, in my opinion, does not involve the application of the rule. The judge did not consider the information in any way. I appreciate that, on the quashing of the order for acquittal, if it be such, the accused will have to attend a further hearing of the proceeding on which, before the magistrate, he was WHEW SOUTH WALES MEAT INDUSTRY AUTHORITY v RANDALL and ANOR (Clarke JAY convicted. But by reason of the court's error, the accused could not, in reality, be convicted by the judge. That, I think, is not a "hearing on the merits" for the purpose of this rule. 4. DISCRETION: Mr Reynolds submitted that, if certiorari ordinarily would go, to grant it would cause such hardship to Mr Randall that it should not be awarded. He has referred, inter alia, to the nature of the offence, as assessed by the magistrate, the amounts involved, and the incidents of costs. There is a distinction between remedies which lie only in the discretion of the court, those which, though discretionary, go as of course, and remedies which are available as of right. Certiorari is ordinarily a discretionary remedy: I shall assume it is so in the present case. But, if this be so, I do not think that the circumstances warrant a refusal to grant it. In the circumstances of this case as they are before the court, I am not satisfied that they warrant a refusal to issue certiorari if otherwise it should go. I am conscious of the impact of legal costs and the effect they may have upon - as far as his circumstances are before this Court - a person in Mr Randall's position. I take that into account. But, in the end, I think that this is an appropriate case for certiorari. The error was plain and the effect was that the proceeding has never been properly heard. The order for costs against the Authority is substantial. I think it is appropriate that the appeal be dealt with according to law. In my opinion, therefore, certiorari should go. Mr Randall should pay the costs of the Authority. The costs of the second respondent, as a submitting respondent, should be paid by Mr Randall. If he be otherwise entitled, he should have a certificate under the Suitors' Fund Act. Priestley JA I agree generally with Mahoney JA's reasoning in this case and amof opinion that an order in the nature of certiorari should be made. I agree with the orders relating to costs proposed by Mahoney JA. Clarke JA I agree with the orders of Mahoney JA and the reasons leading to those orders. 1. Certiorari granted. 2. First respondent to pay costs of applicant and second respondent and to have a certificate under the Suitors' Fund Act. Counsel for the Claimant: DH MURR Instructed by: NOEL F BRACKS AND CO Counsel for the Respondent (1): GO'L REYNOLDS/S KERR Instructed by: SAUTELLE AND WHITE Solicitor for Respondent(2): HK ROBERTS, CROWN SOLICITOR