Chonka, Ex parte; Re Justice Burchett S88/1999 [1999] HCATrans 163 (10 June 1999)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S88 of 1999

In the matter of -

An application for writs of Certiorari and Mandamus against HIS HONOUR JUSTICE BURCHETT OF THE FEDERAL COURT

Respondent

Ex parte -

MICHAEL CHONKA

Prosecutor

GUMMOW J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON THURSDAY, 10 JUNE 1999, AT 9.43 AM

Copyright in the High Court of Australia

MR D. KNAGGS May it please the Court, solicitor, for the applicant. (of Douglas Knaggs)

HIS HONOUR: This is an ex parte application, is it not?

MR KNAGGS: No, your Honour. The other parties, I think, all of whom wish to be represented, are here.

HIS HONOUR: Technically, it is an ex parte application, but they wish to be heard. Is that the position?

MR D. JORDAN: I appear for the Police Commissioner and a particular officer in the proceedings before Justice Burchett. (of the Director of Public Prosecutions (New South Wales)). I seek an opportunity to be heard in opposition to the application under Order 55 rule 12.

MR A. MARKUS: If your Honour pleases, Markus, solicitor, I appear for the respondent to the application. (instructed by the Australian Government Solicitor)

Could I just briefly indicate, your Honour, that my instructions are that my client, not surprisingly, would wish to enter a submitting appearance only in these proceedings. Nevertheless, as the only respondent to the proceedings today, I am here to offer any assistance to the Court that I can.

HIS HONOUR: Yes, thank you, Mr Markus. I mentioned it first, Mr Knaggs, to indicate some matters to you that you, perhaps, need to take on board, I having looked at in the provisional fashion, because what I say is at the moment provisional. The position is, is it not, that there was a matter in the Federal Court. In the course of that there was an application to stand over further consideration of the matter until some later date by reference to the criminal proceedings. That application was successful and an order was made. Is that not right?

MR KNAGGS: That is very close, your Honour, yes.

HIS HONOUR: What I am trying to get at, an order was made.

MR KNAGGS: Yes, your Honour.

HIS HONOUR: Mandamus is all about situations where there is a duty which has not been performed. Here it has been performed. Your complaint is about the manner of performance. Those matters are agitated, normally, through an appellate structure, not through prerogative writs.

MR KNAGGS: Yes, your Honour.

HIS HONOUR: That being so, are you not in the wrong place? In any event, and secondly, where there is an appellate structure, as a matter of discretion, this Court has fairly firmly set its face against interfering on the discretionary ground that there is an alternative avenue. Authority for those propositions which are, I think, uncontroversial - I may be wrong but I think they are uncontroversial - can be found in many places, including the work by Professor Aronson and Mr Dyer, "Judicial Review of Administrative Action" 1996 at pages 781, 807 and 810. Now, I will stand the matter down in the list and go back to No 1 but I think some attention has to be paid to those questions.

MR KNAGGS: Indeed, your Honour.

MR JORDAN: Your Honour, there is one issue that perhaps should be alerted to and that is an appeal has been filed in the Federal Court.

HIS HONOUR: I was not aware of that. It would be an application for leave, would it not?

MR JORDAN: Well, no.

HIS HONOUR: It would need leave to appeal, it is an interlocutory order.

MR JORDAN: Well, it is an application under Order 52 but, in any event, the application has been advised.

HIS HONOUR: There is some appellate process on foot in the Federal Court.

MR JORDAN: It is. It is returnable on the 21st.

MR MARKUS: Your Honour, could I just indicate that it is exhibit J to the biggest affidavit of Mr Chonka. There is a notice of motion filed on 4 June returnable on 21 June seeking leave to appeal to the Full Federal Court. It does not appear to be a sealed copy but it does appear that a notice of motion has been filed seeking leave to appeal.

HIS HONOUR: Yes, I have it now. It is an application for leave. It does not seem to be signed, the copy I have. I take it that it was filed on or about 4 June.

MR KNAGGS: It was, your Honour, yes. I may be able to turn up a sealed copy.

HIS HONOUR: If it is not controversial, I will just take it as having been done on 4 June. All right, I will stand matter No 2 down in consideration of those matters. Call No 1.

AT 9.48 AM SHORT ADJOURNMENT

UPON RESUMING AT 10.15 AM:

HIS HONOUR: Yes, Mr Knaggs.

MR KNAGGS: Your Honour, in response to the point your Honour raised, the submission that I make is that this is the appropriate Court because we seek an order of mandamus which, of course, the Full Court could not give.

HIS HONOUR: What I am putting to you is that it is not a proper case for mandamus.

MR KNAGGS: I know, your Honour. I was going to submit this though, that the respondent Justice has, in effect, refused to proceed.

HIS HONOUR: He made an order.

MR KNAGGS: Yes, he made an order.

HIS HONOUR: He has not refused to do anything. He made an order.

MR KNAGGS: I take the point, your Honour, yes. But his order, in effect, is that he will not proceed with the matter. At least, that he will not proceed with it until it is too late.

HIS HONOUR: Not for ever though, but for reasons and on a particular set of conditions.

MR KNAGGS: Yes, your Honour. But, your Honour, in my submission, whenever a tribunal against whom this Court could potentially give mandamus declines to hear a matter - - -

HIS HONOUR: It can when there has been as constructive refusal to exercise jurisdiction. But that is not what is going on here. His Honour was entirely seized of it and applying himself to it with great industry, if I may say so.

MR KNAGGS: Yes, he has, your Honour. But, your Honour, we none the less submit that he has applied himself to it and come to a decision which, in effect, is a decision to decline to continue with the matter.

HIS HONOUR: No. What you are really saying is that he exercised his discretion wrongly in making that order and that becomes a House v The King situation, if anything.

MR KNAGGS: Yes, your Honour.

HIS HONOUR: But in any event, even if you are right about that, your complaint can be ventilated pursuant to this process you have already got on foot in the Full Court.

MR KNAGGS: Yes, your Honour.

HIS HONOUR: Why should this Court involve itself in it?

MR KNAGGS: Well, of course, it should not unless - - -

HIS HONOUR: There would be seven Justices of this Court sitting in the original jurisdiction from day in and day out dealing with this sort of application, in procedural matters, arising at first instance whenever the judge happens to be an officer of the Commonwealth. The discretionary considerations must be enormous and adverse.

MR KNAGGS: Well, your Honour, I cannot put it any higher than we submit that there is a case for mandamus. As far as the Federal - Full Court is concerned, we have asked them for leave to appeal against what, in effect, was - as far as the Full Court would be concerned - a procedural matter.

HIS HONOUR: Exactly.

MR KNAGGS: They will never interfere in a procedural matter of a judge below.

HIS HONOUR: I have done it. I hope in the right sort of case.

MR KNAGGS: It cannot be brought on quickly enough there. I have tried. I cannot get expedition, first of all, to get leave and then to have the appeal heard in time to do any good for Mr Chonka.

HIS HONOUR: Well, I might say something about that in my reasons.

MR KNAGGS: If it please the Court.

MR JORDAN: Your Honour, I have already made - - -

HIS HONOUR: I think I should probably give such leave as is necessary to hear what you want to say.

MR JORDAN: Thank you, your Honour. It is under Order 55 rule 12, as I understand it. Your Honour has already made my first submission which is that his Honour Justice Burchett has fully performed his public duty in this case and therefore mandamus does not lie. As to certiorari, I simply say that there is no jurisdictional error. There is no error of law in the face of the record, and the discretionary considerations, for the reasons already outlined by your Honour, weigh very heavily against that particular form of relief.

HIS HONOUR: One would not get to certiorari unless one already had the first step, as it were, of the necessary jurisdictional step of mandamus under 75(v).

MR JORDAN: Yes, your Honour, that is understood. The other piece of information which may be of some assistance to your Honour in the exercise of your discretion is that to some extent, at least in relation to the urgency of this application, that is now futile. It is a moot point. The telephone intercept material has been admitted in the trial which is currently proceeding.

HIS HONOUR: When was it admitted?

MR JORDAN: It was admitted on Tuesday.

HIS HONOUR: I see.

MR JORDAN: Your Honour, in my submission, that may give rise to an argument that these proceedings are, in any event, futile, at least in substance, but even if that was not accepted, there is certainly no urgency any more as to the relief sought in this Court.

HIS HONOUR: Well, if the evidence was wrongly admitted, it can come up as a ground of appeal, if there is a conviction, of course.

MR JORDAN: It can go to the Court of Criminal Appeal, yes.

HIS HONOUR: That is what, in fact, happened in Ridgeway v The Queen, that is how that question got here.

MR JORDAN: Yes, but, of course, different considerations apply because the trial judge had access to the residual discretion in section 138 of the Evidence Act.

HIS HONOUR: Yes. It was not just Bunning v Cross, was it?

MR JORDAN: No.

HIS HONOUR: It was the Evidence Act now.

MR JORDAN: Yes. So, your Honour, at least in so far as - as I understand it, there is some apparent urgency about the relief sought. The urgency is really no longer there.

HIS HONOUR: Yes, thank you. Yes, Mr Markus?

MR MARKUS: Unless your Honour wishes to hear from me, I have no submissions.

HIS HONOUR: Yes, thank you, Mr Markus. Yes, Mr Knaggs.

MR KNAGGS: Your Honour, only very briefly, on the point of whether there is, any more, any urgency in the matter. The trial has only just got under way of a four-week trial. I would have submitted that any order your Honour were to make would save irreparable damage being done if your Honour were minded to make the order and there would be no reason why the District Court trial could not be stopped before the applicant's reputation suffers and before he is incarcerated.

HIS HONOUR: Thank you.

This is an ex parte application for relief in the nature of mandamus and certiorari under s 75(v) of the Constitution against a Judge of the Federal Court (Burchett J). His Honour has entered a submitting appearance. I granted leave to a representative of the Director of Public Prosecutions of New South Wales, Mr Jordan, to put submissions in opposition pursuant to Order 55 rule 12.

The Federal Court had before it an application, the nature of which is sufficiently described in the reasons for judgment of Burchett J dated 3 June 1999 which is exhibit A to the affidavit in support, sworn by Mr Knaggs on 9 June 1999. The applicant for judicial review in the Federal Court is the applicant in this Court. Burchett J ordered, on application by several of the respondents, that the application stand over until after the final determination of certain criminal proceedings in the District Court of New South Wales which are present pending against the applicant. I have been informed this morning that the evidence drawn from the disputed telephone intercepts was, in fact, admitted earlier this week in the course of the criminal trial.

Burchett J was dealing, in the first instance, with a motion brought by two of the respondents to the proceedings for summary dismissal on the ground that no reasonable cause of action was disclosed and that the proceeding was frivolous or vexatious and an abuse of process. His Honour indicated with detailed reasons a provisional adverse view as to the merits of the substantive application. However, he said at page 13 of his reasons that summary dismissal was a measure reserved only for cases where there was "no prospect at all that the applicant might succeed".

His Honour then moved to consider at page 14 an alternative question, namely, whether the applicant's proceedings should be stayed pending the completion of the criminal prosecution. His Honour considered various authorities bearing upon the point including the decision of the Full Federal Court in Flanagan v Commissioner of the Australian Federal Police (1996) 60 FCR 149 where reference is made to the statement by Fox J in Seymour v Attorney-General (Cth) [1984] FCA 329; (1984) 4 FCR 498 at 501. His Honour also was referred to the decision of this Court in Ousley v The Queen [1997] HCA 49; (1997) 192 CLR 69. Burchett J reached the conclusion that the proceedings in the Federal Court should be stood over until after the resolution of the criminal proceedings, and made the order I have mentioned. The present application to this Court for mandamus requiring his Honour to continue forthwith to hear the substantive application is misconceived. That disposition of the substantive application would only happen if there were first set aside the order that the application stand over until the final determination of the criminal proceedings in the District Court.

Burchett J has not failed to discharge his duty to deal with the motion filed by the respondents. He did so by rejecting the primary submission for summary dismissal and by accepting the secondary position that in any event the further hearing of the substantive application be stood over. The real complaint made in this Court is one that does not found an application for mandamus; rather, the complaint is with the order, and it is contended that there was an error of an appellable kind in relation to the reasoning process which led to his Honour to exercise his discretion as he did. In that regard, it may be noted that there is presently on foot in the Federal Court process filed, it seems, 4 June 1999, seeking leave to appeal from the Full Court against his Honour's order.

That brings me to the next point. In any event, where there is an appellate process available within the Federal Court structure, this Court is particularly reluctant to interfere by the grant of a writ under s 75(v) of the Constitution. That reluctance must be particularly strong where what would be involved would be the fragmentation of criminal proceedings in a third court. I also take into account the circumstance that the evidence in question has already been admitted and that that, in turn, may found, after conviction, if there be conviction, a ground of appeal within the criminal appellate structure.

For all of these reasons, I think the application instituted by summons filed 9 June 1999 should be dismissed. The question of certiorari would only arise as appendant to the issue of mandamus. Accordingly, I order that the application for relief under s 75(v) of the Constitution be dismissed.

What should I do about costs?

MR JORDAN: Your Honour, my application is that the costs incurred by my clients, that is the second and fourth respondents in the proceedings before Justice Burchett, on this application should be paid by the prosecutor.

HIS HONOUR: Did his Honour make an order?

MR JORDAN: No, costs were reserved because it will be costs in the cause.

HIS HONOUR: Yes. I think I should make the costs of this application be the Director's costs of the cause in the Federal Court.

MR JORDAN: As your Honour pleases.

MR KNAGGS: If it please the Court.

HIS HONOUR: And you are a party in the Federal Court, are you not?

MR JORDAN: Yes. My name is Jordan and I appear for the second and fourth respondents in the Federal Court.

HIS HONOUR: Yes, that is what I thought. Yes, thank you, Mr Jordan. Very well, is there anything else?

MR KNAGGS: No.

HIS HONOUR: Thank you, gentlemen. I will now adjourn.

AT 10.32 AM THE MATTER WAS CONCLUDED