William Trevor Storer v Special Magistrate J Murphy and Ian Thomas Knight [1991] ACTSC 63 (15 August 1991)

SUPREME COURT OF THE ACT

WILLIAM TREVOR STORER v. SPECIAL MAGISTRATE J. MURPHY and IAN THOMAS KNIGHT
S.C. No. 270 of 1991
Costs - Criminal Law Practice and Procedure - Administrative Law

COURT

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

CATCHWORDS

Costs - application for costs by Director of Public Prosecutions (ACT) acting for respondent informant in application under ADJR Act (ACT) challenging Magistrate's decision in committal proceedings - function of Director of Public Prosecutions - whether entitled to act as legal practitioner for respondent.

Criminal Law Practice and Procedure - Committal proceedings challenged under ADJR Act (ACT) - Director of Public Prosecutions acting for respondent informant - function of Director of Public Prosecutions - whether entitled to act as legal practitioner for respondent.

Administrative Law - ADJR Act (ACT) - application for costs on behalf of respondent by Director of Public Prosecutions - function of Director of Public Prosecutions.

HEARING

CANBERRA
15:8:1991

Counsel for the applicant: Mrs Storer (Non-practitioner)

Solicitor for the applicant: Self

Counsel for the respondent: Mr B. Taggart

Solicitor for the respondent: Director of Public Prosecutions

ORDER

The application for costs be dismissed.

DECISION

Following my order to permanently stay the proceedings brought by Mr Storer under the Administrative Decisions (Judicial Review) Act 1989 (ACT) (the ADJR proceedings), application was made on behalf of Constable Ian Knight, the second respondent in the ADJR proceedings, for an order for costs. Constable Knight was the informant in the committal proceedings out of which the ADJR proceedings arose. Mr Storer opposed the order for costs and he and his wife advanced several arguments in support. It is not necessary to canvass them all. The main objection raised is that the Director of Public Prosecutions for the Australian Capital Territory is not and never has been entitled to appear or act in the ADJR proceedings, that accordingly he has no entitlement to recover costs and that Constable Knight can be under no liability to incur them.
Appointment of Director of Public Prosecutions for the ACT

2. Mr Taggart, a member of the staff of the Office of the Director of Public Prosecutions of the Commonwealth, on secondment to the Office of the Director of Public Prosecutions of the Australian Capital Territory, appeared to seek the order for costs on Constable Knight's behalf. He took me helpfully through a complex maze of legislation and regulations, which has the following effect. Until 1 July 1990 the Director of Public Prosecutions appointed under the Director of Public Prosecutions Act 1983 (Commonwealth) (the Commonwealth DPP and the Commonwealth Act respectively) performed the function of prosecuting for offences against the laws of the Commonwealth and the laws of the Territory. From 1 July 1990 the Commonwealth DPP continued to perform the function of prosecuting for offences against the laws of the Territory so long as no one held office or was appointed as Director of Public Prosecutions under the Director of Public Prosecutions Act 1990 (ACT) (the ACT DPP and the ACT Act respectively).

3. Section 22 of the ACT Act provides as follows:
"Appointment

22 (1) The Executive may by instrument appoint a person
to be the Director.
(2) Subject to this Act, the Director shall be
appointed for the period (not exceeding 7 years) specified
in the instrument of appointment but is eligible for

re-appointment.

.....
(4) A person shall not be appointed as the Director unless -
(a) the person is a barrister and solicitor within
the meaning of the Legal Practitioners Act 1970 and has
been for not less than 5 years; or
(b) the person is admitted as a legal practitioner in a State or
another Territory and has been for not less than 5 years.
....."

4. Section 22 commenced on 1 July 1991, the day fixed by the Attorney-General by notice in the Gazette published 26 June 1991: see ACT Act, sub-s.2(2).

5. On 26 June 1991 the ACT Executive appointed Mr Kenneth John Crispin, QC to be the ACT DPP for the period from 1 July 1991 to 30 June 1998.

6. Mr Crispin's appointment as ACT DPP brought to an end as at midnight on 30 June 1991 the power of the Commonwealth DPP to perform the functions conferred on the ACT DPP by the ACT Act.
Assumption by ACT DPP of conduct of defence of ADJR proceedings

7. It is necessary now to relate these matters to the ADJR proceedings. The ADJR proceedings were commenced by an application for an order to review filed by Mr Storer on 26 April 1991. The only respondent named at that stage was the Magistrate.

8. On 3 May 1991 Higgins J. made certain interlocutory orders including an order that Constable Knight be made a second respondent. A member of the staff of the Office of the Commonwealth DPP appeared at the hearing on that day on behalf of Constable Knight.

9. No appearance has ever been entered for either respondent in the ADJR proceedings (cp 0rder 13 rule 1 Supreme Court Rules and Order 4 rule 2, Order 9 rule 1 Federal Court Rules).

10. On 24 May 1991 a notice of motion was filed on behalf of Constable Knight seeking a dismissal of the application under the ADJR Act. An affidavit in support of the notice of motion was sworn and filed by Mr Taggart on the same day. Those documents were endorsed as filed by the Commonwealth DPP as if the Commonwealth DPP were acting as barrister and solicitor on behalf of the applicant on the motion.

11. The hearing of the motion to dismiss the application in the ADJR proceedings commenced on 21 June 1991. Mr L. Katz appeared for the second respondent. There can be no doubt that Mr Katz, although admitted to practise in the Territory as a barrister and solicitor, appeared as a barrister instructed by the Commonwealth DPP who acted as a solicitor. Mr Taggart was present in Court to instruct personally. The hearing was adjourned to 5 July 1991. On that day Mr Katz appeared once again and Mr Taggart was present to instruct him. Judgment was reserved until 19 July 1991. On that day, immediately after the judgment was handed down, Mr Taggart made the application for costs.

12. In the light of the provisions of the Commonwealth Act and of the ACT Act there is no difficulty with the proposition that on 5 and 19 July 1991 it was no longer the function of the Commonwealth DPP to represent the second respondent or to instruct Mr Katz. Mr Taggart informed me that on those days, and ever since 1 July 1991, the ACT DPP, having taken over the conduct of defending the ADJR proceedings from the Commonwealth DPP, has acted as the second respondent's solicitor.

13. No notice of change of solicitor has been filed (cp Order 8 rule 2 ACT Supreme Court Rules).

14. Mr Taggart submits that in taking over the conduct of defending the ADJR proceedings the ACT DPP has done so in the performance of one of the functions conferred upon the ACT DPP by the ACT Act and that for the purposes of the application for costs the ACT DPP is in no different position from any legal practitioner acting for a party in litigation.
Functions of the ACT DPP

15. Sub-section 25(1) of the ACT Act provides as follows:

"Preclusion from other employment
25 (1) The Director -
(a) shall not engage in practice as a legal practitioner;
and
(b) shall not, without the consent of the Attorney-General,
engage in paid employment;
other than in performance of the functions of the
office of Director."

16. This section is to be contrasted with s.16 of the Commonwealth Act which is in these terms:

"Right of Director and staff to practise in their
official capacity
16. The Director, or a member of the staff of the
Office who is a legal practitioner, is, in his official
capacity -
(a) entitled to practise as a barrister, solicitor,
or barrister and solicitor, in a federal court or in a
court of a State or Territory; and
(b) entitled to all the rights and privileges of a
barrister, solicitor, or barrister and solicitor, as the
case may be, in that court,
whether or not he would, but for this section, be
entitled to practise in that court."

17. There is no equivalent to s.16 in the ACT Act.

18. Mr Taggart relies on sub-paragraph (b)(ii) of sub-section 6(1) of the ACT Act. It is necessary to set out the whole of s.6:

"Functions
6 (1) The Director has the following functions:
(a) in relation to indictable offences -
(i) instituting prosecutions on indictment or summarily;
(ii) conducting prosecutions on indictment or
summarily, whether instituted by the Director or not;
(b) in relation to the commitment of persons for
trial in respect of indictable offences -
(i) instituting proceedings;
(ii) conducting proceedings, whether instituted
by the Director or not;
(c) in relation to summary offences -
(i) instituting prosecutions;
(ii) conducting prosecutions, whether
instituted by the Director or not;
(d) assisting a coroner in inquests and inquiries;
(e) in relation to forfeiture orders or the recovery
of pecuniary penalties -
(i) instituting proceedings;
(ii) conducting proceedings, whether instituted
by the Director or not;
(iii) co-ordinating or supervising the
institution or conduct of proceedings;
(f) in relation to civil remedies in connection with
specified matters -
(i) instituting proceedings;
(ii) conducting proceedings, whether instituted
by the Director or not;
(iii) co-ordinating or supervising the
institution or conduct of proceedings;
on behalf of the Territory or a Territory
authority;
(g) in relation to appeals in respect of
matters referred to in paragraphs (a) to (f) (inclusive) -
(i) instituting or responding to appeals;
(ii) conducting appeals as appellant or
respondent, whether instituted or responded to by the
Director or not;
(h) functions that are conferred on the Director by
or under another Act;
(j) such other functions as are prescribed by the regulations.
(2) In paragraph (1)(f) -
"specified matter" means -
(a) the recovery or ensuring the payment of an
amount of tax;
(b) a prosecution, whether instituted or conducted
by the Director or not; or
(c) an alleged or suspected offence, whether a
prosecution has been instituted or not."

19. The equivalent section in the Commonwealth Act is in terms considerably different. It is not necessary to set them out. It is apparent, however, that whatever the position of the Commonwealth DPP in the ADJR proceedings prior to 1 July 1991, or in any other proceedings, the position of the ACT DPP is not identical and is to be ascertained from the provisions of the ACT Act and not the Commonwealth Act.

20. However, s.4 of the Director of Public Prosecutions (Consequential Provisions) Act 1990 needs to be taken into consideration:

"Transitional
4. Where immediately before 1 July 1990 the
Commonwealth Director was -
(a) conducting general proceedings; or
(b) assisting a coroner in an inquest or inquiry;
on and after that date the Director shall continue to -
(c) conduct those proceedings; or
(d) assist the coroner in that inquest or inquiry.
(2) in subsection (1), "Commonwealth Director",
"Director" and "general proceedings" have the same
meanings respectively as in the Director of Public
Prosecutions Act 1990."

21. Sub-section 3(1) of the ACT Act defines "general proceedings" as "a prosecution, proceedings or appeal referred to in sub-paragraph 6(1)(a)(b)(c)(e)(f) or (g)".

22. Accordingly, if the proceedings in this Court were within the scope of paragraph 6(1)(b)(ii), as Mr Taggart submits, then the ACT DPP had the power and the obligation to continue to conduct them.

23. Mr Taggart submits that the ADJR proceedings are proceedings "in relation to the commitment of persons for trial in respect of indictable offences" and that in resisting the ADJR proceedings, or alternatively in applying by motion to dismiss Mr Storer's application, the ACT DPP was "conducting proceedings" within the meaning of paragraph 6(1)(b)(ii). The contrast is drawn between the DPP instituting proceedings, that is to say, initiating or commencing them, and the DPP conducting proceedings, whether instituted by him or not, that is to say, resisting them or taking part in them without having initiated them or having commenced them. The word "proceedings", it is argued, is not restricted to committal proceedings themselves; it is sufficient that they relate to the commitment of persons for trial, and the ADJR proceedings in the present case relate to committal proceedings.

24. If sub-paragraph (ii) stood on its own, I would see some force in that submission. But it has to be read in the light of the whole section. In particular it is apparent that paragraph (b) appears between paragraphs (a) and (c). The terms "instituting" and "conducting" are clearly used in juxtaposition in paragraphs (a) and (c) to contrast the situations where on the one hand the Director commences the proceedings and where on the other hand the Director takes over or assumes the conduct of proceedings commenced by somebody else. Further, it is appropriate that the word "proceedings" is used in paragraph (b) in contrast to the word "prosecutions" in paragraphs (a) and (c) because a committal proceeding is not a prosecution but a ministerial or administrative proceeding. It is the very character of being an administrative, non-judicial proceeding that makes it amenable to ADJR challenge. A prosecution is a judicial proceeding and therefore may not be the subject of an ADJR challenge. I conclude that in acting for the second respondent in the ADJR proceedings the ACT DPP was not exercising a function conferred by s.6(1)(b)(ii).

25. For similar reasons I conclude that the ACT DPP was not in the ADJR proceedings exercising a function conferred by paragraph 6(1)(f). Although the ADJR proceedings may be said to relate to civil remedies, there has to be a connection with "specified matters". "Specified matters" as defined include "a prosecution, whether instituted or conducted by the Director or not", but, as I have already said, the word "prosecution" in the section is used so as to exclude committal proceedings. In any event, to be within paragraph 6(1)(f) the DPP has to act "on behalf of the Territory or a Territory authority", and Constable Knight, a member of the Australian Federal Police, is not a Territory authority. The ACT DPP did not take part in the ADJR proceedings on behalf of the Magistrate.

26. In my view, therefore, in acting for Constable Knight in the ADJR proceedings, the ACT DPP acted outside the functions conferred by the ACT Act. The ACT DPP has no power to practise as a legal practitioner other than in performance of the functions of office conferred by the ACT Act. The ACT DPP is not, in some general way "the police solicitor". The application for costs must fail. Needless to say the result of this decision may cause some concern. If that is so, it is because of the provisions of the ACT Act.