Corporate Affairs Commission v Michael Reginald Crozier and Norman Oakley Sca [1989] ACTSC 31 (3 July 1989)

SUPREME COURT OF THE ACT

CORPORATE AFFAIRS COMMISSION v. MICHAEL REGINALD CROZIER and NORMAN OAKLEY
S.C.A. No. 15 of 1988
S.C.A. No. 16 of 1988
Appeals from the Magistrates Court

COURT

IN THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Gallop J.(1)

CATCHWORDS

Appeals from the Magistrates Court against refusal to uphold claims of legal professional privilege and public interest privilege - objection to competency - whether administrative or judicial act - appeals held incompetent

Magistrates Court Ordinance 1930, ss.61, 66, 207, 208

Australian Capital Territory Supreme Court Act 1930, s.11(c), 219B

Evidence Ordinance 1971, s.52

Graham v. Ninness (1986) 65 ALR 331

Senior and Ors v. Holdsworth (1975) 2 All ER 1009

Alister and Ors v. The Queen [1983] HCA 45; (1983) 154 CLR 404; 50 ALR 41

Burmah Oil Co. Ltd v. Governor and Company of the Bank of England and Anor [1979] UKHL 4; (1980) AC 1090

HEARING

CANBERRA
3:7:1989

ORDER

Both appeals be dismissed as incompetent.

DECISION

These are appeals by the Corporate Affairs Commission against orders made by Chief Magistrate Cahill on 9 March 1988 that documents subpoenaed by Michael Reginald Crozier and Norman Oakley from the Corporate Affairs Commission be produced and made available to those two persons as defendants in criminal proceedings brought against them and another by Peter Myers in respect of offences against s.556(1) of the Companies Act 1981.

2. The Chief Magistrate ordered that in each case the subpoenaed documents be produced and rejected the appellant's claims of public interest privilege in relation to some documents and legal professional privilege in relation to others. By consent both appeals were heard together. The respective respondents objected to the competency of the appeal in each case.

3. The subpoenas were returnable before the Chief Magistrate on 17 December 1987. Objection to production of the documents referred to therein was taken on the grounds of legal professional privilege and public interest privilege. The Chief Magistrate heard argument and delivered his reserved decision on 9 March 1988. The grounds of appeal in both appeals are identical and simply state that the Chief Magistrate erred in law in rejecting the claims of public interest privilege and legal professional privilege.

4. The competency of the appeals is to be determined upon the true construction of ss.207 and 208 of the Magistrates Court Ordinance 1930 and s.11(c) of the Australian Capital Territory Supreme Court Act 1933. Sections 207 and 208 of the Magistrates Court Ordinance 1930 appear in "Part XI - Appeals to the Supreme Court" of the Ordinance. Section 207 is the only provision in "Division 1 - The Appeal Jurisdiction of the Supreme Court" and reads:
"Jurisdiction of Supreme Court

207. (1) The appellate jurisdiction of the
Supreme Court with respect to decisions of the
Magistrates Court under this Ordinance extends to the
hearing and determination of the following appeals and
to no others, namely:
(a) appeals to which Division 2 of this Part applies;
and
(b) appeals from decisions of the Magistrates Court by
way of orders to review made in accordance with
Division 3 of this Part.
(2) Nothing in this Part limits the operation of
any other Ordinance that makes provisions with respect
to the appellate jurisdiction of the Supreme Court."

5. Section 208 appears in "Division 2 - Appeals" and provides a right of appeal as follows:

"(a) ... by the person convicted ...
(b) ... by the person against whom the order is made
under s.113 or 114 ...
(c) ... from a sentence or penalty imposed ...
(d) ... by the person charged ...
(e) ... by a person who has given a recognisance under
s.556A ...
(f) ... by the informant or the defendant from a
decision under s.202 ...
(g)(a) ... by informant or defendant concerning bail
..."

6. Section 219B appears in "Division 3 - Orders to Review" and provides for appeal by way of order to review from:

(a) an order dismissing an information;
(b) a conviction;
(c) an order made under s.113 or 114 of the Ordinance;
(d) an order for commitment;
(e) a decision not to commit a person for sentence;
and
(f) a decision to dispose of a case summarily.
Section 11(c) of the Australian Capital Territory Supreme Court Act 1933

reads:

"11. The Supreme Court -
(a) ...
(b) ...
(c) has jurisdiction, with such exceptions, and
subject to such conditions as are provided by Act
or by Ordinance, to hear and determine appeals
from all judgments, convictions, orders and
sentences of inferior courts having jurisdiction
in the Territory."

7. The objection to the competency of the appeals made on behalf of the respondents was that s.207 provides the appellate jurisdiction of the Supreme Court with respect to decisions of the Magistrates Court under the Magistrates Court Ordinance 1930 and extends the jurisdiction to the hearing and determination of appeals as provided in ss. 207 and 208 "and to no others". It was submitted that the decisions of the Chief Magistrate ordering the production of the subpoenaed documents were decisions under s.66 of the Magistrates Court Ordinance and decisions under s.66 are not referred to in s.207. Only decisions under ss.208 and 219B are referred to therein and hence no right of appeal is available under s.207.

8. Before referring to s.66 it is necessary to set out s.61 of the Magistrates Court Ordinance 1930:

"61. If it is made to appear to a Magistrate that
any person is likely to give material evidence, and
will not voluntarily appear for the purpose of being
examined as a witness at the hearing of any
information, the Magistrate shall issue his summons to
that person, requiring him to be and appear at a time
and place mentioned in the summons before the Court, to
testify what he knows concerning the matter of the
information."

9. Section 66 of the Magistrates Court Ordinance 1930 reads:

"66. Where a Magistrate has authority to summon
any person as a witness, he shall have the like
authority to require and compel him to bring and
produce, for the purposes of evidence, all documents
and writings in his possession or power, and to proceed
against him, in case of neglect or refusal so to do, in
the same manner as in case of neglect or refusal to
attend or refusal to be examined:
Provided that a person shall not be bound to
produce any document or writing not specified or
otherwise sufficiently described in the summons, or
which he would not be bound to produce upon a subpoena
duces tecum in the Supreme Court."

10. It was common ground that the orders for production of the subpoenaed documents were made as part of the summons process under s.66.

11. The submission on behalf of the appellants was that the orders made by the Chief Magistrate for the production of the documents referred to in the subpoenas were "orders" within the meaning of s.11(c) of the Australian Capital Territory Supreme Court Act 1933 and no relevant exceptions have been provided by Act or by Ordinance. Hence, although no right of appeal is conferred by s.207, the right is conferred by s.11(c).

12. Counsel for the appellants argued that it would be an anomalous situation if an order for the production of documents pursuant to s.66 of the Magistrates Court Ordinance would not be covered by s.207 and yet an order for the production of documents pursuant to s.52 of the Evidence Ordinance 1971 could be the subject of an appeal under s.11(c). Section 52 of the Evidence Ordinance 1971 provides:

"52.(1) A person who is present at the hearing of
a proceeding may, subject to this Ordinance and any
other law in force in the Territory, be ordered to give
evidence and to produce documents notwithstanding that
a subpoena or other process requiring the person to
attend for that purpose has not been duly served upon him.
(2) A person who is ordered in pursuance of the
last preceding sub-section to give evidence or to
produce documents is subject to the same penalties and
liabilities as if he had been duly served with a
subpoena or other process requiring him to give
evidence or produce documents."

13. In explanation of that argument counsel relied upon Graham v. Ninness (1986) 65 ALR 331. In that case the respondent had appealed to this court against his conviction and sentence for an offence against s.59 of the Crimes Act 1900 (NSW) which provided an offence of assault occasioning actual bodily harm. He had elected to have the matter disposed of summarily pursuant to s.92 of the Court of Petty Sessions Ordinance 1930 (since renamed the Magistrates Court Ordinance 1930). I had held that the respondent's appeal to this court was competent basically on the ground that the respondent was appealing from a conviction for an offence dealt with by the Court of Petty Sessions (as it was then known) within the meaning of s.208(1)(a) of the Court of Petty Sessions Ordinance. A Full Court of the Federal Court held, not without some doubt because of the ambiguity of the language of s.208, that an appeal lay to this court. The Federal Court granted leave to appeal and dismissed the appeal to that court.

14. Counsel for the appellant endeavoured to mount an argument based upon the Federal Court's decision in Graham v. Ninness that that case is authority for the proposition that ss.207 and 208 do not operate as "exceptions" within the meaning of s.11(c) of the Australian Capital Territory Supreme Court Act 1933 and consequently do not take away the right of appeal conferred by s.11(c) upon a summonsed or subpoenaed party. That being so, there is no impediment to an appeal by a summonsed or subpoenaed party to this court.

15. The decision in Graham v. Ninness is no authority for the proposition that ss.207 and 208 are not "exceptions" within the meaning of s.11(c). The substantive point of appeal in that case was whether a person charged with an indictable offence, dealt with and convicted summarily in the Magistrates Court is a "person convicted" within the meaning of s.208(1)(a) of the Magistrates Court Ordinance 1930.

16. In the course of my judgment, delivered on 21 December 1984, I had said:

"If it were necessary to do so, I ... would hold that
ss.207 and 208 would not constitute an exception within
the meaning of s.11(c) of the Supreme Court Act so as
to oust this court's jurisdiction to hear and determine
appeals against conviction for indictable offences
dealt with summarily in the Court of Petty Sessions."

The Federal Court was not required to consider that observation as a ground of the exercise of the appellate jurisdiction by this court and expressed no view on it.

17. I have come to the firm conclusion that the orders made by the Chief Magistrate for the production of documents referred to in the subpoenas were not "orders" within the meaning of s.11(c) of the Australian Capital Territory Supreme Court Act 1933. Indeed they were not orders at all. What happened is that summonses to produce documents were issued out of the Magistrates Court office in the ordinary way under the authority of ss.61 and 66 of the Magistrates Court Ordinance 1930. The documents being in the possession of the addressee, namely the Corporate Affairs Commission, the addressee was required by force of the summons process to produce the documents unless it took objection on proper grounds to doing so. In the proceedings before the Magistrate objections were taken and the Magistrate ruled upon those objections. The objections were heard by the Magistrate and he refused the claims of legal professional privilege and public interest privilege.

18. It is now reasonably clear that the issue of a subpoena duces tecum is an administrative process and not a judicial act (see Senior and Ors v. Holdsworth (1975) 2 All ER 1009 per Orr LJ at p 1016). As such, a decision refusing a claim of privilege is not a decision going to the issue of the subpoena but simply a decision refusing to uphold a basis upon which production of the documents referred to in the subpoena is privileged. In the present cases the Magistrate did not make an order within the meaning of s.11. He simply refused to uphold claims of legal professional privilege and public interest privilege.

19. Counsel for the appellant drew some support for his submission that what the Magistrate had done in the present appeals was by way of an order within the meaning of s.11(c) by reference to Alister and Ors v. The Queen [1983] HCA 45; (1983) 154 CLR 404; 50 ALR 41. Gibbs CJ at ALR 41 referred to the necessity for the trial judge to make a decision during the course of the trial and referred to "his duty to defer making an inspection to give the Attorney-General an opportunity to test his decision on appeal if he wished to do so, notwithstanding the inconvenience that would result from interrupting the trial in that way". Gibbs CJ was there not intending to suggest that the appropriate course to test a decision about compliance with a subpoena would have been by way of an appeal. He was no doubt using a generic term and, in my view, the appellant gains no support from that observation.

20. Likewise, I do not think that the appellant gains any support for its argument from the reference to a right to appeal in Burmah Oil Co. Ltd v. Governor and Company of the Bank of England and Anor [1979] UKHL 4; (1980) AC 1090 at 1147.

21. As a matter of construction, I am of the opinion that s.11(c) confers jurisdiction upon this court in relation to final judgments and decisions, including final orders of the Magistrates Court, and not to decisions of an administrative nature or decisions refusing to uphold claims of privilege in relation to subpoenaed documents.

22. I hold that both appeals are incompetent and they are accordingly dismissed. I shall hear counsel on the question of costs.