Eastman v The Honourable Chief Justice Terence John Higgins [2007] ACTSC 29 (9 May 2007)

Last Updated: 7 May 2008

DAVID HAROLD EASTMAN v THE HONOURABLE CHIEF JUSTICE TERENCE JOHN HIGGINS [2007] ACTSC 29 (9 May 2007)

ADMINISTRATIVE LAW - application for judicial review of a decision under Order 66 rule 10B of the Supreme Court Rules to reject for filing an application for inquiry into conviction pursuant to s 424 Crimes Act 1900 (ACT) - application is not judicial proceeding - must be considered by the Supreme Court in an administrative capacity - document does not need to be filed - Rules of Court have no application - Court must consider application in an administrative capacity with reference to s 422 of Crimes Act 1900 (ACT) - principles of procedural fairness apply to decision - decision reviewable because decision maker applied incorrect test - decision quashed and remitted to a judge of the Supreme Court for determination according to law.

Supreme Court Rules 1937, O 66 r 10B

Administrative Decisions (Judicial Review) Act 1989 (ACT)

Crimes Act 1900 (ACT), s 421, s 422, s 423, s 424

Legislation Act 2001 (ACT)

Supreme Court Act 1933 (ACT)

Bizuneh v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 42 cited

Eastman v Attorney-General [2004] ACTSC 32 cited

Eastman v Director of Public Prosectuions (ACT) [2003] HCA 28; (2003) 214 CLR 318 cited

Eastman v The Queen (1997) 76 FCR 9 cited

Eastman v The Queen [2000] HCA 29; (2000) 203 CLR 1 cited

No. SC 256 of 2006

Judge: Lander J

Supreme Court of the ACT

Date: 9 May 2007

IN THE SUPREME COURT OF THE )

) No. SC 256 of 2006

AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: DAVID HAROLD EASTMAN

Applicant

AND: THE HONOURABLE CHIEF JUSTICE TERENCE JOHN HIGGINS

First Respondent

J E CIRCOSTA, REGISTRAR OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Second Respondent

THE ATTORNEY-GENERAL OF THE AUSTRALIAN CAPITAL TERRITORY

Intervenor

ORDER

Judge: Lander J

Date: 9 May 2007

Place: Canberra

THE COURT ORDERS THAT:

1. The decision of the first respondent on 9 March 2006 to direct the second respondent not to accept for filing the document forwarded by the applicant on 2 February 2005 entitled `Application under s 424 of the Crimes Act 1900 (ACT)' (the applicant's application) be quashed.

2. The decision of the second respondent to accept the first respondent's decision given on 9 March 2006 be quashed.

1. 1. This is an application to review a decision of the Chief Justice of the Australian Capital Territory (`the first respondent') made on 9 March 2006 in which he directed the Registrar of the Supreme Court of the Australian Capital Territory (`the second respondent') not to accept for filing an application by the applicant for an inquiry into the applicant's conviction under s 424 of the Crimes Act 1900 (ACT) (`Crimes Act') and the further decision of the second respondent made on the same day not to accept for filing that application.

2. On 10 January 1989 the Assistant Commissioner of the Australian Federal Police, Colin Winchester was shot dead. On 3 November 1995 the applicant was convicted by a jury of the murder of the deceased. On 10 November 1996 Carruthers AJ sentenced the applicant to imprisonment for life.

3. The applicant appealed against his conviction to the Full Court of the Federal Court of Australia but on 25 June 1997 that appeal was dismissed: Eastman v The Queen (1997) 76 FCR 9.

4. The applicant sought and obtained special leave to appeal to the High Court but on 25 May 2000 the appeal was dismissed: Eastman v The Queen [2000] HCA 29; (2000) 203 CLR 1.

5. The appeal to the High Court centred upon one ground which was that at the trial a question of the applicant's fitness to plead arose which was not addressed and thereby a miscarriage of justice occurred.

6. In their reasons for decision, Gleeson CJ, Kirby and Callinan JJ referred to the availability of an inquiry under s 475 of the Crimes Act. Subsequently, the applicant sought an inquiry under s 475 into the question considered by the High Court and into other matters. On 7 August 2001 the then Chief Justice of the ACT, Miles CJ, pursuant to s 475 of the Crimes Act, directed that an inquiry be held into the matter of the applicant's fitness to plead during the whole or any part of the trial. He refused to order an inquiry into the other matters raised by the applicant. At the same time Miles CJ directed the Chief Magistrate of the ACT, or a Magistrate nominated by the Chief Magistrate, to summon and examine on oath all persons likely to give material information on the matter.

7. Subsequently, the Director of Public Prosecutions challenged the inquiry but that challenge was dismissed by the High Court on 28 May 2003: Eastman v Director of Public Prosecutions (ACT) [2003] HCA 28; (2003) 214 CLR 318. The applicant also challenged the limited scope of the inquiry but the grounds for that challenge, and the challenge, were dismissed by Gray J in the Supreme Court of the ACT on 25 May 2004: Eastman v Attorney-General [2004] ACTSC 32.

8. In response to the direction of Miles AJ, the Chief Magistrate nominated Mr G Cavanagh as the Magistrate to conduct the inquiry. Mr Cavanagh took depositions which he provided to Miles AJ, who then heard counsel for the applicant and the Attorney-General.

9. In his report dated 6 October 2005 Miles AJ concluded that it had not `been shown that Mr Eastman was unfit to plead during the whole of his trial or during any part of it, or that an unresolved question as to his fitness resulted in a miscarriage of justice'. He did not recommend that the Executive take any action to set aside Mr Eastman's conviction.

10. Subsequently, Mr Eastman brought proceedings in this Court seeking a review of the decision of Miles AJ. I dismissed that application earlier today: Eastman v Miles [2007] ACTSC 27.

11. In the meantime, the applicant wrote to the present Chief Justice in a letter dated 2 February 2005 seeking an inquiry pursuant to s 424 of the Crimes Act. The letter was addressed to Chief Justice T J Higgins, Supreme Court of the ACT. In paragraph 3 of the letter the applicant wrote:

... I have concluded that it is most appropriate to make this application to you as Chief Justice of the Supreme Court.

12. In that letter he asked that the application for an inquiry be considered by a resident judge. At that time, and now, the resident judges of the ACT were Higgins CJ, Crispin P, Gray J and Connolly J. There were a number of additional judges of the Court, all of whom were also judges of the Federal Court of Australia.

13. The applicant raised for consideration who should consider his application:

4. For some time it seems to have been assumed that most resident judges cannot sit on any case involving me, due to perceived bias. With great respect, I submit that this view is incorrect for the following reasons.

5. Halsbury's Laws of Australia states, at page 13, 421:

"A prior relationship of legal adviser and client does not generally disqualify the former adviser on becoming a member of a tribunal or court ..."

Several cases are quoted in Halsbury in support of that proposition, including Re Polites; Ex Parte Hoyts Corp Pty Ltd [1991] HCA 25; (1991) 173 CLR 78.

6. Alternatively, I rely on the doctrine of necessity. At one time or another I must have had some minor contact with every resident Judge. If there is need for one Judge to disqualify himself, there must be a need for all to do so, resulting in this application being referred to a non-resident Judge. With great respect to non-resident Judges, they lack a sufficient appreciation of the ACT context of this case, its long and complicated history, and the sensitive issues which it raises. Therefore, it would amount to a failure of justice if this application were referred to a non-resident Judge.

7. Halsbury says, at page 13, 346:

"The rule of necessity permits a member of a court or tribunal to hear a matter where the bias rule would otherwise be infringed because no judge without the disqualifying interest is available to sit ..."

8. The only resident Judge who would need to disqualify himself from considering this application is Justice Gray because he sat on cases between myself and the DPP concerning the former s 475.

9. In conclusion, I respectfully submit that the interests of justice require that this application be considered by a resident Judge.

14. The only resident judge to whom the applicant objected was Gray J.

15. The applicant identified the grounds for ordering an inquiry:

13.1 Strong hypotheses consistent with my innocence

These hypotheses concern the strong likelihood that the murder was drug-related and was committed by organized crime. I enclose a copy of MFI-130 which is a Police report which concludes in its "Executive Summary" that the murder was committed by the Sergi organized crime group. MFI-130 was not used at my trial because my barrister, Mr Terracini, did not know that it was amongst the many documents in his possession and I also did not know of its existence.

I also enclose a copy of MFI-23, which is another Police report, that says, in paragraph 1.5, that investigation of the organized crime leads should continue and "this could eventually provide information or evidence directly linked to the murder". One of the detectives centrally involved in conducting those further inquiries, the late Detective Cliff Forster, told my lawyers in 1998 that those inquiries were never satisfactorily completed. I enclose a 3-page document recording those conversations.

13.2 Doubts concerning evidence of Robert Barnes on gunshot residue

Mr Barnes's evidence was central to the prosecution case. You will shortly receive a report from Dr Wallace, an eminent UK scientist, who has extensively reviewed Mr Barnes' fluctuating evidence given at the inquest and later at the trial. I understand that this report will be highly critical of Mr Barnes' evidence. Dr Wallace is posting this report direct to you.

In addition, Mr Barnes' evidence in other cases has repeatedly been criticised by the Courts in Victoria, and he was dismissed from his position at the Victorian Forensic Science Laboratory in 1993. (Relevant documents are contained in Books 1 and 2, already supplied to the Supreme Court in case No SC110/02.)

13.3 Doubts about identification evidence of Raymond Webb

Mr Webb's evidence was central to the prosecution case. However, when Mr Webb's various statements between 1989 and 1995 are compared with the statements of J Dorigo, R R Hall, and J J Hall, there are timing inconsistencies which make it physically impossible for Mr Webb to have seen me when and where he claimed to have done so.

Moreover, Mr Webb's various explanations to the Inquest in 1992 for having concealed his "evidence" for 4 years were fantastic.

Furthermore, the evidence of the late Mr L Klarenbeek was clearly and consistently exculpatory of me. My barrister, Mr Terracini, never detected the timing inconsistencies in Mr Webb's evidence and neglected to carry out my instructions to put Mr Klarenbeek's evidence before the jury. (Relevant statements are contained in Books 1 and 2 referred to above.)

13.4 Doubts about voluntariness of alleged statements recorded in flat

The prosecution claimed that incriminating statements could be deciphered from barely audible tape recordings made in my flat. That claim was always false. Moreover, whatever the mutterings may have been, they were clearly involuntary, having been coerced by an AFP terror campaign designed to drive me insane. This emerges clearly from the Foster document previously referred to and enclosed herewith. The tapes were therefore inadmissible.

16. On 9 February 2005 the second respondent wrote to the applicant in the following terms:

The Chief Justice has asked me to respond to your letter of 2 February 2005 addressed to him.

The Chief Justice proposes to refer the matter raised in the letter to Justice Gray. He is aware that you raise, at paragraph 8 of your letter, that Justice Gray should disqualify himself because he has sat on cases involving you and the DPP concerning the former S 475. The Chief Justice does not consider that circumstance to be a ground of disqualification.

As far as the arrangement of the business of the court is concerned, and because of the past association of all other resident Judges of the court with matters concerning you, he is of the view that the most appropriate Judge to whom the matter should be referred is Justice Gray.

If there are any further matters you wish to refer to in this context please do so in writing.

17. The applicant responded to the first respondent in writing on 24 February 2005 advising that he maintained his objection to Gray J considering his application.

18. On 8 March 2005 the second respondent wrote to the applicant advising that, in view of the fact that the applicant maintained his objection, the Chief Justice had asked that the applicant inform the second respondent of the grounds upon which the objection was made.

19. On 16 May 2005 the applicant responded setting out those grounds:

1. As you know, I made application to you on 2 February 2005 for an order under section 424(1) of the Crimes Act 1900 directing an inquiry into my conviction. I have been informed by the Registrar of the Court, Ms Circosta, that you have referred my application to Justice Gray. As you will be aware, I objected to Justice Gray considering my application in paragraph 8 of my application.

2. On 24 February 2005, I renewed my objection to Justice Gray in a letter to you. Ms Circosta has asked me to explain the grounds of my objection to Justice Gray's involvement.

3. There is a substantial reason why, in my submission, Justice Gray ought not decide my application because his Honour's involvement in previous litigation is sufficient to raise a reasonable apprehension of bias on Justice Gray's part.

4. In the course of Justice Gray's judgment in Eastman v Miles [2004] ACTSC 32, His Honour dealt with my claim that former Chief Justice Miles had failed to give real consideration to a report prepared by Dr James Smyth Wallace, forensic scientist, in which Dr Wallace criticised the quality of the forensic evidence presented in support of the prosecution's case at my trial.

5. At paragraph [76] of the judgment, Justice Gray described Dr Wallace's report as consisting of "assertions" and referred to its force in engendering a doubt or question as "extremely speculative". His Honour also described the report as "no more than a commentary". In paragraph [77], Justice Gray referred to (in, no doubt, his opinion) "the unpersuasive nature of the material" in Dr Wallace's report.

6. As will be apparent from paragraph 13.2 of my application under section 424 of the Crimes Act 1900, Dr Wallace's criticisms of the prosecution's forensic evidence is an important aspect of my application. The views already expressed by Justice Gray (as outlined in the preceding paragraph) on Dr Wallace's initial report would be understood, by the reasonable and well-informed lay person, as indicating that Justice Gray has already formed a view (indeed, an unfavourable view) of the quality and relevance of Dr Wallace's opinions and may not bring an unprejudiced mind to the disposition of my application.

7. In Livesey v New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288, the High Court (in an unanimous judgment) held that two members of the Court of Appeal of New South Wales were disqualified from sitting to decide a matter to which a witness's evidence was relevant when those members had previously expressed adverse opinions about the credit of the witness. The Court said, at page 300:

... a fair minded observer might entertain a reasonable apprehension of bias by reason of prejudgment if a judge sits to hear a case at first instance after he has, in a previous case, expressed clear views about a question of fact which constitutes a live and significant issue in the subsequent case or about the credit of a witness whose evidence is of significance on such a question of fact.

8. Here, Justice Gray has expressed clear views about Dr Wallace's criticism of the prosecution's forensic evidence. Dr Wallace's criticism relates to a significant issue in my application under section 424 of the Crimes Act 1900. As the High Court said, in that circumstance a fair minded observer might entertain a reasonable apprehension of bias by reason of prejudgment if Justice Gray now determines my application.

9. Of course, the fact the (sic) Justice Gray may determine my application in an administrative rather than a judicial capacity (if that is the correct construction of section 424 of the Crimes Act 1900) does not diminish the law's requirement that there be no appearance of pre-judgment or bias.

20. On 17 October 2005 Gray J wrote in a memorandum to the Chief Justice:

1. I refer to your proposal to refer to me an application under s 424 of the Crimes Act 1900 by David Eastman dated 2 February 2003 (sic).

2. I note that Miles CJ has now concluded his report in respect of an inquiry under s 475 of the Crimes Act 1900 in the matter of Mr Eastman's fitness to plea.

3. In response to your advice to Mr Eastman that you did not consider the fact that I had determined matters SC 101/02, SC 48/02, SC 149/02, SC 174/02 and SC 463/03 as a ground of disqualification, you requested a response from Mr Eastman.

4. By letter dated 16 May 2005, Mr Eastman put that my involvement in previous proceedings was sufficient to raise a reasonable apprehension of bias. He said:

4. In the course of Justice Gray's judgment in Eastman v Miles [2004] ACTSC 32, His Honour dealt with my claim that former Chief Justice Miles had failed to give real consideration to a report prepared by Dr James Smyth Wallace, forensic scientist, in which Dr Wallace criticised the quality of the forensic evidence presented in support of the prosecution's case at my trial.

5. At paragraph [76] of the judgment, Justice Gray described Dr Wallace's report as consisting of "assertions" and referred to its force in engendering a doubt or question as "extremely speculative". His Honour also described the report as "no more than a commentary". In paragraph [77], Justice Gray referred to (in, no doubt, his opinion) "the unpersuasive nature of the material" in Dr Wallace's report.

6. As will be apparent from paragraph 13.2 of my application under section 424 of the Crimes Act 1900, Dr Wallace's criticisms of the prosecution's forensic evidence is an important aspect of my application. The views already expressed by Justice Gray (as outlined in the preceding paragraph) on Dr Wallace's initial report would be understood, by the reasonable and well-informed lay person, as indicating that Justice Gray has already formed a view (indeed, an unfavourable view) of the quality and relevance of Dr Wallace's opinions and may not bring an unprejudiced mind to the disposition of my application.

5. The reference in those grounds to my judgment in Eastman v Miles [2004] ACTSC 32 is to paragraphs [76] and [77]. Those paragraphs say:

76. The applicant's further complaint in seeking to justify a review of the first respondent's actions relates to what he asserts, in effect, was the cursory consideration given by the first respondent to the material before him. The material comprised assertions made by Dr Wallace initially on material other than the transcript of the trial and is in effect a commentary on suppositions derived from material that he believed to be reliable. I agree that the first respondent appears to have dealt with the material in a very short space of time. It does not appear that he made any additional inquiries. However, the force of this material in engendering the doubt or question required by s 475 is extremely speculative. It is not based on the transcript of the trial. It is not in the form of an expert opinion challenging another expert's opinion but rather a commentary on the various materials that Dr Wallace had before him. In the case of the observations concerning the evidence of Raymond Webb, it is no more than a commentary on what Dr Wallace assumes to be the evidence. Although it is said that the "information is extracted from the summing up of the re-opened inquest by Mr Cahill on 23^rd December 1992 and also from the transcript of the trial", it is clear from the earlier "report" that Dr Wallace had not been able to obtain the transcript of the trial. The material stands or falls on its persuasiveness to engender a doubt or raise a question in the mind of the recipient and on this occasion it did not do so.

77. No reason is put forward as to why the matters that are the subject of Dr Wallace's comments were not put to the Federal Court on the applicant's appeal against his conviction. Nor is it suggested that the matters the subject of Dr Wallace's comments were matters that could not have been adduced on that appeal. On the applicant's appeal (Eastman v The Queen (1997) 76 FCR 9) there was an application to admit an affidavit from Dr Wallace (at 105). The Full Court observed (at 107) -

The affidavit of Dr Wallace does not raise any matter of fresh evidence ... What the affidavit does reveal is that Dr Wallace was available to be called at the trial and was in contact with the appellant's then lawyers although the various messages he received as to his attendance were contradictory.

That is a very pertinent matter affecting the weight to be given to Dr Wallace's views. The Full Court was not prepared to admit Dr Wallace's evidence on the appeal. No reason was advanced to the first respondent as to why Dr Wallace's views should now be considered as his views were available to the applicant both at the time of the trial and on the appeal. Apart from the unpersuasive nature of the material, I consider that the first respondent could quite properly not entertain a doubt or question about that material and to not have regard to what Dr Wallace was now putting forward without some explanation as to why it was not put to the Full Court of the Federal Court on the appeal against the applicant's conviction.

6. The governing principle is that articulated by Gleeson CJ, McHugh, Gummow and Hayne JA in Ebner v The Official Trustee [2000] HCA 63; (2000) 205 CLR 337 where at paragraph [6] it was said:

Where, in the absence of any suggestion of actual bias, a question arises as to the independence or impartiality of a judge (or other judicial officer or juror), as here, the governing principle is that, subject to qualifications relating to waiver (which is not presently relevant) or necessity (which may be relevant to the second appeal), a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide.

7. Mr Eastman, in his submission on this aspect has referred to Livesey v New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288 where the court said at p 300:

... a fair minded observer might entertain a reasonable apprehension of bias by reason of prejudgment if a judge sits to hear a case at first instance after he has, in a previous case, expressed clear views about a question of fact which constitutes a live and significant issue in the subsequent case or about the credit of a witness whose evidence is of significance on such a question of fact.

The important aspect is that, whatever views I may be taken to have expressed with respect of the material provided by Dr Wallace to Miles CJ, affects, in the mind of a fair-minded observer, any report that Dr Wallace might now provide to support Mr Eastman's present application. It is to be noted that Mr Eastman's present application refers to you receiving a further report from Dr Wallace in relation to the matter and I understand that a report dated 31 January 2005 has been received from Dr Wallace. There is no reason to apprehend that I would not consider such a report on its merits or that whatever reference is made to the previous material provided by Dr Wallace would not be impartially considered by me.

8. It is my view that a fair-minded observer would not apprehend any prejudgment that might be said to lead me to consider the matter on other than its legal and factual merits. Nor can there be said to be any logical connection between what I said in relation to Dr Wallace's material in my judgment in Eastman v Miles [2004] ACTSC 32 and the course of determining what Mr Eastman now puts in his application on its merits (see Ebner v The Official Trustee [2000] HCA 63; (2000) 205 CLR 337 at 345).

9. I do not regard myself as being in a position where a reasonable observer might reasonably apprehend that I might not bring an impartial mind to the resolution of the matters put forward by Mr Eastman. However, having regard to Mr Eastman's objection, it is a matter which I leave to you, as Chief Justice, to form a judgment on these matters having regard to what Mr Eastman has put and the matters to which I have referred. I note also that the matter is further complicated by Mr Eastman's reliance in his application of 2 February 2005 on what he describes as "the doctrine of necessity" to submit that it would amount to a failure of justice if his application were referred to a non-resident Judge. Nor does it follow that "If there is a need for one [resident] judge to disqualify himself, there must be a need for all to do so" as Mr Eastman asserts.

21. Gray J's memo was not supplied to the applicant at that time.

22. On 31 October 2005 the applicant wrote to the first respondent in the following terms:

APPLICATION UNDER SECTION 424 OF CRIMES ACT 1900

I refer to my letters to you dated 11-10-05 and 16-5-05, and to earlier correspondence, about the subject above.

On re-reading my letter to you dated 16-5-05, I am concerned that it might not have been clearly enough worded. Therefore, I wish to confirm that it was intended to convey :-

(1) A request to you to re-allocate my application of 2-2-05 to a judge other than Justice Gray, on the grounds of apprehended bias by him; and, in the event that this request were rejected,

(2) A request to Justice Gray to disqualify himself, on the grounds of apprehended bias.

23. On 26 October 2005 the first respondent wrote in a memorandum to Gray J:

1. The issue as to whether any "doubt or question" arises from any report of Dr Wallace as at 25 May 2004 has been heard and determined.

2. If it was open to re hear that issue then, I would agree, you have decided it and it could not be expected that you would later decide differently.

3. If that was an issue, another judge should hear the application to determine it.

4. The applicant further raises the "organised crime" hypothesis. I accept that this hypothesis could not lightly be dismissed. It was, however, open to have explored it at the applicant's trial.

5. That hypothesis was considered by you at [10] and [11] and [54] of your judgment. You rejected the submission that Miles CJ was wrong in considering that no "doubt or question" as to the guilt of the applicant was thereby raised.

6. Again, if that was an issue, another judge should hear it.

7. The issue as to whether a fresh application can be made was not decided by you. I agree that there is no reason why you should not be able impartially to decide that issue.

8. There are two additional issues the applicant now raises. The first relates to the evidence of Raymond Webb.

9. If this issue is open to agitation then, as I read your decision in relation to the decision of Miles CJ, it was not decided by you. Nor is there any view you have expressed concerning it.

10. The second relates to the voluntariness of covertly recorded conversations or, more accurately, soliloquies of the applicant.

11. Again, if this issue is open to agitation then it does not appear that it was previously raised before you and would be decided without any prior view having been expressed by you.

12. I agree that no reasonable perception of pre-judgment could arise on any issue other than the Wallace/Barnes controversy or, the "organised crime" hypothesis. If those issues are open to determination then another judge should be assigned. It is for you to determine if that is so.

13. So far as the position of other resident judges are concerned, both Crispin J and Connolly J, prior to their appointments had been the subject of alleged threats and harassment from the applicant. That is quite separate from Crispin J's previous role as a legal adviser to the applicant.

14. As to the previous status of myself as a legal adviser to the applicant, I acknowledge that that, of itself, is not a cause for disqualification. However, it is otherwise where the previous relationship involved the matter in question or an issue or issues relevant to it. That is the case with me. I, therefore, could only deal with the current application if the prosecution, duly apprised of the conflict, consented to it and if I believed I could bring an impartial and unprejudiced mind to bear on the issues. Given the availability of non-resident judges that disqualifying circumstance is not overborne by the doctrine of necessity. Further, a lack of awareness, if it be so, of this case and the issues in it is, to my mind, an advantage in ensuring that the adjudication of the matter would be seen as fair and impartial.

24. On 8 March 2006 Gray J wrote in a memorandum to the first respondent:

1. As your memorandum to me of 26 October 2005 points out, there is an issue as to whether the matter sought to be raised by Mr. Eastman in his letter to you of 2 February 2005 under the heading "Application under section 424 of Crimes Act 1900 (ACT)" can now be properly raised.

2. The progress of this matter has been complicated by Mr. Eastman's insistence that to refer this matter to a non-resident judge of the Court would amount to a "failure of justice". Each of the resident judges, other than myself, have substantial grounds for apprehending that they are disqualified from dealing with Mr. Eastman's matters.

3. As far as I am concerned, I note that Mr. Eastman has concerns about my dealing with some aspects of the matters he has raised as giving rise to an apprehension of bias. I note your view, however, that the issue as to whether what Mr. Eastman is seeking to do in his letter by agitating the matters that he does is a matter upon which I might comment without giving rise to such an apprehension.

4. As a consequence of the proceedings before me in Eastman v The Honourable Jeffrey Allan Miles & Others [2004] ACTSC 32 (25 May 2004), I am familiar with the matters that were before the former Chief Justice, the Honourable Jeffrey Miles AO, when he determined the matter under s. 475 of the Crimes Act 1900, the predecessor section to what is now s 424. Each of the matters raised by Mr. Eastman in his letter of 2 February 2005 were before Miles CJ and were insufficient to cause him to identify a doubt or question concerning Mr. Eastman's guilt.

5. At about the time of Mr. Eastman's letter a further report of Dr J.S. Wallace was received dated 31 January 2005. It is what it purports to be, namely a summary of Dr Wallace's earlier reports. I asked Mr. Kellaway, who was Miles CJ's associate at the inquiry to check whether it contained any new material, and he reported that it did not. That material is directed to the topic raised by Mr. Eastman of "Doubts concerning evidence of Robert Barnes on gunshot residue".

6. Similarly, and Miles CJ had before him material under the heading "Evidence of former Winchester murder inquiry detective, Cliff Forster" and "Evidence that organized crime committed the murder". What Mr. Eastman now contends "Strong hypotheses consistent with my innocence" and "Doubts about voluntariness of alleged statements recorded in flat" rely upon the same material that was before Miles CJ.

7. What Mr. Eastman describes as "Doubts about identification evidence of Raymond Webb" relies upon material that was before Miles CJ and upon which Miles CJ also declined to direct an inquiry.

8. The matters referred to by Mr. Eastman in his letter of 2 February 2005 are all matters that were before Miles CJ and considered by him. The issue of whether Miles CJ properly dealt with each of these matters was the subject of the proceedings before me seeking to invoke the application of the Administrative Decisions (Judicial Review) Act 1989, and were determined by me in Eastman v The Honourable Jeffrey Allan Miles.

9. The issue under s. 475 of the Crimes Act 1900 as to whether there is any doubt or question arising as to the guilt of a person after the person's conviction for an offence is the same issue dealt with by s. 422 of the Crimes Act 1900 which provides the grounds for ordering an inquiry under s. 424 of that Act.

10. Mr. Eastman is seeking to re-agitate the very matter that was considered and adversely determined against him by Miles CJ. To now permit him to do so by way of what can only be described as a successive application on the same materials, is vexatious and an abuse of process.

11. I understand that the Registrar is seeking a direction under O 66 r 10B. That order provides:

"(1) If a document lodged for filing appears to the registrar on its face to be an abuse of the court's process or to be frivolous or vexatious, the registrar may refuse to accept the document or may seek the direction of a judge about how to deal with it.

(2) If the registrar seeks the direction of a judge under subrule (1), the judge may direct the registrar--

(a) to accept the document; or

(b) to refuse to accept it; or

(c) to refuse to accept it without the court's leave."

A direction should be given to the Registrar to refuse to accept the document.

25. Gray J's reference to O 66 r 10B is to O 66 r 10B of the Supreme Court Rules 1937 (`the Rules') which were repealed on 1 July 2006. However, the Rules were the relevant rules in 2005 and in March 2006.

26. On 9 March 2006 the first respondent wrote in a memorandum to the second respondent (copying the memorandum to Gray J):

1. For the reasons outlined by Gray J (memo 8/03/06) I direct the Registrar, pursuant to Order 66 rule 10B, not to accept for filing the document forwarded by Mr Eastman of 2 February 2005 and entitled "Application under Section 424 of the Crimes Act 1900 (ACT)".

2. Mr Eastman should be advised of this decision and the reasons for it.

27. On 9 March 2006 the second respondent wrote to the applicant:

Re: Application under

Section 424 of Crimes Act 1900

You have lodged the above application for filing in the Supreme Court.

Pursuant to order 66 Rule 10B I have been directed by the Chief Justice not to accept the document for filing and to provide you with the reasons for the direction.

Accordingly your application is returned and the reasons for the direction as contained in Memoranda from the Chief Justice to Justice Gray dated 26 October 2005 and 8 March 2006 are enclosed.

28. At trial the applicant sought and obtained leave to amend his application by adding grounds 2(f), 4 and 5. The grounds of his application are:

1. The direction decision involved an error of law in that the Applicant's Application for order of review under section 424 of the Act could not be considered on its face an abuse of the Court's process or to be frivolous or vexatious.

Particulars

(a) The Applicant has not previously lodged an application under section 424 of the Act.

(b) The Application raises a number of questions that go to the Applicant's guilt or innocence which have not previously been considered under section 424 of the Act.

(c) That the issues raised in the Application were previously considered under s 475 [repealed] of the Act is an irrelevant consideration as section 424 of the Act does not preclude the bringing of an application under that provision in terms similar to an application previously brought under section 475 [repealed] of the Act.

2. A breach of the rules of natural justice has occurred in connection with the making of the direction decision and the filing decision.

Particulars

(a) The First Respondent has conceded that his previous relationship with the Applicant as the Applicant's solicitor in respect of relevant issues is cause for disqualification from hearing the matter.

(b) The First Respondent has relied upon the advice of Justice Gray of the ACT Supreme Court in making his decision. Justice Gray has accepted that he is excluded from consideration of the Applicant's matter on the grounds of bias.

(c) In consequence, the direction decision was affected by actual, alternatively apprehended, bias.

(d) The Second Respondent has acted as solicitor on the record on behalf of parties against whom the Applicant has brought other proceedings in this Court.

(e) In consequence, the direction decision was affected by actual, alternatively apprehended, bias.

(f) The applicant was not given a hearing prior to the decision, nor was he given the opportunity to make submissions.

3. The Second Respondent took into account an irrelevant consideration in making the filing decision.

Particulars

(a) The Second Respondent had regard to the First Respondent's direction.

(b) The First Respondent's direction was vitiated by error of law and denial of natural justice.

4. The decision by the First Respondent to direct the Second Respondent to refuse to accept the application by the Applicant of 2 February 2005 for an inquiry under section 424 of the Crimes Act 1900 (Act) into the Applicant's conviction ("the Application") for filing was not made after consideration of whether the Application raised new matters.

5. That neither the first nor the second respondent could have formed the view that the application for inquiry pursuant to section 424 was on its face an abuse of process, or that it was frivolous or vexatious. That being the case, any proposed refusal to accept the application on the basis that it constituted an abuse of process necessarily required notice to the applicant and the opportunity to respond.

29. The application does not, in its terms, call in aid the Administrative Decisions (Judicial Review) Act 1989 (ACT) (`ADJR Act') but it is clear from the applicant's counsel's submissions that the provisions of that Act are relied upon. The real thrust of the applicant's case was that the respondents failed to accord the applicant procedural fairness in a number of separate ways. In particular, he complains that the decision maker (the first respondent) and the person upon whom he relied (Gray J) should both have disqualified themselves because of apprehended bias. Secondly, he complains that he was not at any stage advised that the first respondent was considering directing the second respondent not to accept for filing the application under s 424 because it was vexatious and/or an abuse of process. He complains he was not heard on that matter.

30. The orders sought are:

The Applicant seeks the following orders in relation to:-

(a) the First Respondent's decision ("the direction decision"), made on 9-3-06 pursuant to Order 66, Rule 10B of the Supreme Court Rules 1937 (A.C.T.) ("the Rules"), to direct the Second Respondent not to accept for filing an application by the Applicant for an inquiry into his conviction under sect. 424 of the Crimes Act 1900 (A.C.T.) ("the Act"); and

(b) the Second Respondent's decision ("the filing decision"), made on 9-3-06, not to accept for filing an application by the Applicant for an inquiry into his conviction under sect. 424 of the Act:-

1. An order of, or in the nature of, certiorari quashing the direction decision and the filing decision.

2. An order of, or in the nature of, mandamus directing the Second Respondent to accept the Applicant's application under sect. 424 for filing.

3. Such further or other orders as the Court thinks appropriate.

4. Costs.

31. The first and second respondents have filed a submitting appearance. The Attorney-General for the ACT has intervened pursuant to s 19 of the ADJR Act and, by his counsel, has acted as the contradictor.

32. Section 424 is included in Part 20 of the Crimes Act which is headed `Inquiries into Convictions'. Section 424 provides:

424(1) The Supreme Court may order an inquiry on application by the convicted person, or by someone else on the convicted person's behalf.

(2) The registrar must give a copy of an application for an inquiry to the Attorney-General.

(3) The Supreme Court may consider a written submission by the Attorney-General or the director of public prosecutions (or both) in relation to the application.

(4) Proceedings on an application are not judicial proceedings.

(5) If the Supreme Court orders an inquiry, the registrar must give a copy of the order to the Attorney-General.

33. Relevantly, it is the Supreme Court which may order an inquiry. The Executive may also order an inquiry on its own initiative: s 423 of the Crimes Act. Where the Supreme Court is approached, the `Supreme Court' must be understood in that context to mean any judge of the Supreme Court, including the Chief Justice: s 3 of the Supreme Court Act 1933 (ACT) (`Supreme Court Act'). After the Supreme Court has provided a copy of the application to the Attorney-General, the Supreme Court may consider a written submission from the Attorney-General or the Director of Public Prosecutions.

34. An inquiry is defined in s 421 of the Crimes Act:

inquiry means an inquiry under this part into a person's conviction for an offence (whether summarily or on indictment).

35. The order for an inquiry may be made on the application of the convicted person and the subject matter of the inquiry is into that person's conviction for an offence.

36. Section 422 of the Crimes Act provides the grounds for ordering an inquiry:

422(1) An inquiry may be ordered under this part into the conviction of a person for an offence only if--

(a) there is a doubt or question about whether the person is guilty of the offence; and

(b) the doubt or question relates to--

(i) any evidence admitted in a relevant proceeding; or

(ii) any material fact that was not admitted in evidence in a relevant proceeding; and

(c) the doubt or question could not have been properly addressed in a relevant proceeding; and

(d) there is a significant risk that the conviction is unsafe because of the doubt or question; and

(e) the doubt or question cannot now be properly addressed in an appeal against the conviction; and

(f) if an application is made to the Supreme Court for an inquiry in relation to the conviction--an application has not previously been made to the court for an inquiry in relation to the doubt or question; and

(g) it is in the interests of justice for the doubt or question to be considered at an inquiry.

(2) The inquiry is limited to matters stated in the order for the inquiry.

(3) If the inquiry is ordered by the Supreme Court, the court may set limits on the inquiry under subsection (2) despite anything in the application for the inquiry.

37. Relevantly, `proceeding' is defined in s 421 of the Crimes Act:

relevant proceeding, in relation to an offence, means a prosecution or other proceeding in relation to the offence, including an appeal in relation to the finding of a court in relation to the offence.

38. The first matter to be observed is that s 422(1)(f) only allows an inquiry to be ordered by the Supreme Court on an application under s 422 where an application has not previously been made to the Court for an inquiry in relation to the doubt or question. The applicant, of course, contended that the application to Miles CJ for an inquiry under s 475 did not mean that an application had been previously made to the Court for the purposes of s 424. Whilst the intervenor argued that the previous application for an inquiry meant that Gray J was right to report in the terms that he did, the intervenor did not argue that s 422(1)(f) applied in relation to the applicant's application.

39. Section 422 limits the circumstances in which an inquiry may be ordered. There must be a doubt or question about whether the person is guilty of the offence. That doubt or question must relate to any evidence which was admitted at the trial or any appeal or to any material fact that was not admitted in evidence at the trial or on appeal and the doubt or question could not have been properly addressed at the trial or appeal. There must be a significant risk that the conviction is unsafe because of the doubt or question and it is in the interests of justice to inquire into that doubt or question. An inquiry can only be ordered if the doubt or question cannot be properly addressed in an appeal against conviction. Section 422(1)(f) guards against applications which are vexatious or frivolous within the ordinary meaning of those words. Only one application can be made to the Supreme Court for an inquiry into the same doubt or question under s 424 of the Crimes Act. Section 422(1)(f) therefore assists to ensure that multiple or repeated applications are not made by convicted persons or by persons acting on their behalf to the Supreme Court for an inquiry into the same doubt or question. If they are made they cannot be granted and the application can be refused merely by reference to that subsection.

40. The applicant's application for an inquiry is not a judicial proceeding: s 424(4). No right to an order for an inquiry is given to a convicted person, nor is any duty imposed upon the Supreme Court or the Executive to order an inquiry: s 425(1). Because the application under Part 20 is not a judicial proceeding, there is no right of appeal: s 425(2).

41. As the application for an inquiry is not a judicial proceeding, the decision to be made in response to an application under s 424 must be administrative. The judge of the Supreme Court must comply with an administrative decision maker's obligations and, in particular, with an administrative decision maker's obligations to afford procedural fairness to any applicant under this part of the Crimes Act.

42. The decision which has been made by the first respondent is that the second respondent be directed, pursuant to O 66 r 10B, not to accept for filing the applicant's application under s 424 of the Crimes Act. The second respondent's decision, if she has made one, is to accept the direction of the first respondent. That raises as a preliminary matter whether an application by a convicted person pursuant to s 424 for an administrative decision to order an inquiry is a document which has been lodged for filing and, in particular, whether the Rules have any application.

43. In my opinion, there are a number of reasons why O 66 r 10B cannot apply to an application for an inquiry under s 424 of the Crimes Act.

44. Order 1A, which is in `Part 2 - Civil Jurisdiction' of the Rules, provided at the relevant time:

Application to jurisdictions generally

1 This part applies in relation to all proceedings in the court in any of its jurisdictions other than criminal proceedings except so far as these rules otherwise provide or the court otherwise orders.

45. The Rules only apply to proceedings in the Court and then only in jurisdictions other than criminal proceedings. `Proceedings' is not defined in the Rules. Section 144 of the Legislation Act 2001 (ACT) (`Legislation Act') provides that a definition in Part 1 of the dictionary of that Act applies to all Acts and statutory instruments. A statutory instrument is an instrument made under an Act: s 13 of the Legislation Act. The Rules are made under s 36 of the Supreme Court Act and are therefore a statutory instrument. A proceeding is defined in the dictionary of the Legislation Act: `proceeding means a legal or other action or proceeding'. Proceeding would have that meaning in the Rules: s 144 Legislation Act. In my opinion, an application under s 424 is not a proceeding within the meaning of this definition and therefore this application is not a proceeding in the Court. On the face of it, the Rules have no application to the applicant's application. If that is so, of course, O 66 r 10B could have no application.

46. Order 66 r 10B was included in that order of the Rules dealing with documents. `Document' was defined in O 66 r 1:

In this order

document means a document prepared by a party to a proceeding for use by or in the court, and includes an originating application or any other document beginning an action.

47. The application in issue here is not a document prepared by a party to a proceeding for use by or in the Court. It is not an originating application or a document which begins an action. It is therefore, in my opinion, not a document for the purposes of O 66.

48. Order 66 rule 10B of the Supreme Court Rules then provided:

(1) If a document lodged for filing appears to the registrar on its face to be an abuse of the court's process or to be frivolous or vexatious, the registrar may refuse to accept the document or may seek the direction of a judge about how to deal with it.

(2) If the registrar seeks the direction of a judge under subrule (1), the judge may direct the registrar--

(a) to accept the document; or

(b) to refuse to accept it; or

(c) to refuse to accept it without the court's leave.

49. Because O 66 r 10B refers to a document as defined in O 66 r 1, that is a further reason why O 66 r 10B had no application in a consideration of the applicant's application.

50. For the reasons already given, I do not think the applicant's application is a document for the purposes of O 66. If I am wrong and the Rules apply to an application under s 424 and if this application was a document for the purposes of O 66, in my opinion, the provisions of O 66 r 10B have not been enlivened by the document lodged by the applicant in this matter.

51. Order 66 r 10B is not unique. There are like rules in the High Court Rules (r 6.07), the Federal Court Rules (O 46 r 7A), and in the rules of other superior courts. The rule has at least two purposes. First, it provides a mechanism where the Registrar can himself or herself, or at the direction of a judge, administratively protect the integrity of the Court's processes by ensuring that inappropriate documents are not filed. In doing so, the rule assists by ensuring that documents of that kind do not become part of the public record. Secondly, the rule provides a level of protection to litigants other than the party seeking to file the document. It protects other litigants from being the victims of collateral and perhaps scandalous attacks, and saves them from being put to the cost of replying to allegations in a document which are frivolous, vexatious or an abuse of the Court's process.

52. It is not clear from the papers before me when it was that the second respondent sought a direction under O 66 r 10B. It is clear from the second respondent's letters to the applicant that the first respondent was using the second respondent to communicate with the applicant. However, there is nothing in Gray J's memorandum of 17 October 2005 which would indicate that he was being asked to consider the application of O 66 r 10B to the applicant's application. That memorandum suggests that he was being asked to indicate whether he thought he was disqualified from considering the application because of his previous involvement as a judge when considering the applicant's challenge to the former Chief Justice's decision. There is nothing in the first respondent's memorandum to Gray J which followed to indicate that the application of O 66 r 10B was the question to be addressed by Gray J. The first indication that anyone was considering the application of O 66 r 10B is the concluding paragraph of Gray J's memorandum of 8 March 2006. There is no evidence as to how the second respondent came to have the document. The application was written to the Chief Justice as `The Supreme Court'. In any event, it is not clear why the second respondent as Registrar would have been seeking such a direction. Such a direction would only be sought when a document is lodged for filing. This document was not lodged with the Registry for filing. It was an application to a judge of the Supreme Court for an administrative decision. It was not a document which invoked the Court's process so in that regard could not be said to be an abuse of that process.

53. Section 424 of the Crimes Act contemplates that a judge of the Supreme Court will perform an administrative function when a convicted person exercises his or her right to seek an inquiry. In making an application, the applicant was not lodging the application for filing. It is clear from the application itself that the applicant was not seeking to file the document. If the determination of an application for an inquiry is not a judicial proceeding and the intervenor, the Attorney-General, accepted that it was not, the document did not need to be filed in the Court. If these are not proceedings to be determined judicially then, for that further reason, O 66 r 10B has no part to play. That rule applies to judicial proceedings.

54. When the Registrar receives a document for filing, any decision by the Registrar whether to refuse or accept the document is an administrative decision. The Registrar is not, where an application is made to the Supreme Court for an inquiry under s 424 of the Crimes Act, called upon to make any administrative decision in connection with the application. The Registrar's function in an application of that kind is limited to providing a copy of the application and any order made to the Attorney-General: s 424(2) and s 424(5). Where an application is made under s 424, it must be considered on the criteria prescribed in s 422. If there has been a previous application to the Supreme Court for an inquiry that will be a reason for refusing the later application. If there has not been such an application, whether an inquiry will be ordered will depend upon the applicant satisfying the remaining criteria in s 422. In my opinion, Gray J asked himself the wrong question in considering this application under O 66 r 10B.

55. Even if O 66 r 10B has any relevance, the rule is only invoked if the document appears to the Registrar on its face to be an abuse of the Court's process or to be frivolous or vexatious. If the Registrar forms that opinion, she may refuse to accept the document or she may seek the direction of a judge.

56. However, there was no evidence before the first respondent, Gray J or on these proceedings before me, as to whether the second respondent formed the opinion that, on its face, the document appeared to be an abuse of the Court's process or to be frivolous or vexatious. As I have said, there is no evidence that the application ever came to the second respondent's attention at least prior to the direction from the first respondent of 9 March 2006 not to accept the application for filing. It follows that there was no evidence that the Registrar saw the document but, more particularly and more importantly, adverted to the question whether, on the face of the document, it was an abuse of the Court's process or frivolous or vexatious. Therefore, the applicant contended, the condition precedent for the exercise of the power to seek the direction of a judge was not complied with or, at least, there was nothing before Gray J that that condition precedent had been complied with. That state of mind is necessary to be formed by the Registrar before the Registrar can seek the direction of a judge: O 66 r 10B.

57. The applicant contended, in the alternative, that even if the Registrar applied her mind to the question posed in O 66 r 10B(1) she could not have reached the conclusion that the document, on the face of it, was an abuse of the Court's process or frivolous or vexatious. It was contended that, if she did apply her mind to that question and arrived at the conclusion that the document appeared to her to be, on the face of it, an abuse or frivolous or vexatious, such conclusion was unreasonable.

58. The intervenor contended that each of the matters raised by the applicant in his application had been previously dealt with one way or another, either by Miles CJ in his report or in judicial proceedings. Assuming that to be the case, however, that does not address this question and that is whether, on the face of it, the document was an abuse of the Court's process or frivolous or vexatious.

59. In due course, in his argument, Mr Mossop, counsel for the intervenor, conceded, rightly in my opinion, that the document did not, on the face of it, disclose an abuse of process or appear to be frivolous or vexatious. In those circumstances and on that concession which, as I say, was rightly made, the Registrar could not reasonably have formed the opinion that the document was an abuse of the Court's process or frivolous or vexatious. For that further reason, therefore, Gray J addressed the wrong question in his consideration of the application.

60. Assuming that the Registrar had, contrary to my opinion, reasonably reached the necessary state of mind to invoke O 66 r 10B and that a request was made to a judge for a direction, there is a question of the judge's role under O 66 r 10B.

61. As I have already said, when the Registrar is considering whether to refuse or accept a document for filing the Registrar is performing an administrative function. So also, in my opinion, is the judge who is asked by the Registrar for a direction. The Full Court of the Federal Court said in relation to O 46 r 7A of the Federal Court Rules in Bizuneh v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 42 at [16]- [17]:

16. No judicial act is carried out by the Registrar in so acting. The Registrar continues to perform an administrative function, albeit that the act of the Registrar may bear upon the ultimate performance of judicial power. Insofar as r 7A gives the Registrar a discretion to seek a direction from a Judge as to performance of the Registrar's duties, the direction sought is administrative in character. It is a direction provided by a Judge to assist the Registrar in the task of administration and is not a determination of right made by a Judge after hearing or considering argument or submissions upon an application to the Court seeking the exercise of judicial power.

17. Rule 7A provides for a Judge to act in aid of administration of the Court. There is no application to the Court by motion or otherwise and no requirement for a party to be heard. It involves determination of administrative obligations with respect to documents presented to a Registrar having regard to the character of the documents on their face. No order or decree intended to bind a party and no determination of right is made by a Judge where assistance is provided to a Registrar under r 7A.

62. Accepting as I do that the judge is being asked to make an administrative decision in giving a direction to the Registrar the question is raised, how must the judge go about that task in a consideration of O 66 r 10B? In my opinion, if a judge is asked to make an administrative decision under O 66 r 10B, the judge must address the question raised in the rule itself and the question which is raised is, `Does the document appear, on the face of it, to be an abuse of the Court's process?'

63. Gray J did not address that question. He did not consider whether the application was, on the face of it, an abuse of process or frivolous or vexatious. Instead, he had regard to matters extraneous to the document itself to reach the conclusion at which he arrived. In my respectful opinion, he erred in that approach. He should have, if it were right to have regard to O 66 r 10B at all which, of course, I do not accept, considered whether, on the face of the document, the application was an abuse of process or frivolous or vexatious. If he had proceeded in that way he would have had to conclude that it was not, as Mr Mossop has rightly conceded.

64. The applicant contended that if it was appropriate to consider the application of O 66 r 10B to the applicant's application, the applicant must be accorded procedural fairness during that consideration. The applicant contended that he was entitled to be heard on any application made and to have his application decided by an unbiased decision maker.

65. The memorandum from Gray J to the first respondent of 17 October 2005 and the absence of any other document allows it to be inferred that the first respondent spoke to Gray J some time prior to 17 October 2005 and, because of the contents of the memorandum, inquired of Gray J whether he thought that he was disqualified from considering the applicant's application. The memorandum indicates that he thought that he was not so disqualified but that it was a matter of judgment for the Chief Justice as to whether the matter would be referred to him.

66. Gray J's reply raises the question whether it was appropriate for the first respondent to inquire of Gray J and Gray J to respond offering a view as to whether he was disqualified in advance of being seized of the matter.

67. Gray J did not seek any submissions from the applicant before offering his advice to the Chief Justice. However, it does not follow that, therefore, the applicant was denied natural justice.

68. On 16 May 2005 the applicant had put his submissions in relation to why Gray J should not consider the matter in an administrative capacity. Gray J was in possession of those submissions before he wrote his memorandum. In my opinion, the applicant was accorded procedural fairness in relation to that part of his application which objected to Gray J hearing the matter. He made his submissions. They were received. Gray J then considered those submissions and reached his conclusion. In my opinion, the applicant's complaint that he was not accorded procedural fairness by Gray J in considering his application for Gray J to disqualify himself has not been made out.

69. The applicant also complains that the first respondent should have disqualified himself from considering the matter.

70. The first respondent's reply to Gray J of 26 October 2005 indicates that the first respondent had a view in relation to some aspects of the applicant's application: see paragraphs 1, 4 and 12 of that memorandum.

71. Moreover, the memorandum shows that the first respondent thought that he could not deal with the application unless he had the agreement of the prosecution. He does not address any concerns that the applicant might have. There is no suggestion on the material that the first respondent was disqualified from hearing the matter insofar as the applicant was concerned. However, in any event, the applicant did not object to the first respondent hearing the matter. Indeed, his initial application made it clear that he thought all of the resident judges, except Gray J, could determine the application. In those circumstances, in my opinion, his complaint about the first respondent considering the matter is also not made out.

72. There is one final matter that needs to be addressed. The applicant also complained that he was not accorded procedural fairness because he was not advised that the Registrar had sought a direction from a judge in relation to the application of O 66 r 10B and that Gray J was considering the application of that rule to the applicant's application.

73. The Full Court of the Federal Court said in Bizuneh in a consideration of a like rule to O 66 r 10B, that there is no requirement for a party to be heard in relation to the administrative decision to be made by the judge because there is no application before the Court.

74. However, in so concluding, the Full Court relied upon the fact that the judge would be considering the application of the rule to a document on the face of the document. If it were appropriate to consider the application of O 66 r 10B to the applicant's application by reference to facts and circumstances other than on the face of the document, then, in my opinion, the applicant would need to have been advised that such a procedure was to be adopted and would have been entitled to have been heard in relation to that procedure. Because, in fact, that was the way in which Gray J proceeded, for that reason as well, in my opinion, the consideration of the applicant's application miscarried.

75. In my opinion, the first respondent's decision directing the Registrar to not accept for filing the applicant's application of 2 February 2005 must be quashed. The second respondent's decision to accept the first respondent's direction given on 9 March 2006 should also be quashed. No further orders are necessary. The order sought in the nature of mandamus should not be made because, for the reasons given, the applicant's application is not filed.

76. Because the previous decisions have been quashed, the applicant's application will fall to be considered by a judge of the Supreme Court in accordance with Part 20 of the Crimes Act 1900 and, in particular, s 422 of that Part.

I certify that the preceding seventy-six (76) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Lander.

Associate:

Date: 9 May 2007

Counsel for the applicant: Mr Richter QC with Mr Matthews

Solicitor for the applicant: Tony Hargraves and Partners

Counsel for the first and second respondents: Mr J Harris SC

Solicitor for the first respondent: Meyer Vandenberg

Counsel for the intervenor: Mr A Mossop

Solicitor for the intervenor: Australian Capital Territory Government Solicitor

Date of hearing: 25 September 2006

Date of judgment: 9 May 2006