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W B Hunter Pty Ltd v Forshaw [1971] HCA 69; (1971) 129 CLR 409 (9 December 1971)

CATCHWORDS

HEARING

DECISION

2. Under the Justices Act 1958 (Vict.) an order nisi to review the decision of a magistrate may be granted by the Supreme Court ex parte upon an affidavit filed on behalf of the applicant. It has been decided that a ruling by a magistrate that there is a case to answer is an order within the meaning of the Justices Act and that an order nisi to review that ruling may be granted before the hearing is concluded before the magistrate. But such a course is only taken in special circumstances. (at p411)

3. The applicant applied to a Master of the Supreme Court, who is empowered to do so, to grant an order to review the decision of the magistrate that there was a case to answer. Upon this application an oral submission was made that s. 16 of the State and Territorial Laws and Records Recognition Act 1901-1964 (Cth) was ultra vires the Parliament of the Commonwealth. Therefore it was said the certificate of incorporation of the applicant was not admissible before the magistrate as a proof of its incorporation. The Master granted an order nisi which included as a ground -

"That the stipendiary magistrate should have held that
the certificate of incorporation ... of the defendant in the
Australian Capital Territory was not admissible to prove
the incorporation of the defendant company in a court in
the State of Victoria in that ... s. 16 of the State and Territorial
Laws and Records Recognition Act 1901-64, insofar as it purports
to render the said certificate of incorporation admissible
in a State court, is ultra vires the Commonwealth." (at p412)

4. On being served with the order nisi the respondent took out a summons returnable before a judge of the Supreme Court to set aside the order nisi on the ground that it ought not to have been made. This was an appropriate procedure to take apart from any question of the operation of s. 40A of the Judiciary Act 1903-1969 (Cth). The summons to set aside the order nisi and the order nisi itself came on to be heard before a judge of the Supreme Court on 24th May 1971. The learned judge took the view that he had no jurisdiction to deal with either process on the ground that an inter se question had earlier arisen in the proceedings whereupon they had been automatically removed from the Supreme Court into this Court by the operation of s. 40A of the Judiciary Act. (at p412)

5. The parties came before me in chambers on 30th July 1971 seeking my direction as to how the matter was to proceed in this Court. After discussion with counsel for the parties I took the view that I should first decide precisely what was the situation which had arisen in the matter and I invited the parties to place before me in writing any further submissions they wished to make on that question. The respondent has placed before me his further submissions, the applicant apparently being content to rely upon the oral submissions made to me by his counsel in chambers on 30th July. (at p412)

6. I have now had an opportunity of considering the whole matter. I am of opinion that upon the oral submission being made to the Master of the Supreme Court in the application for an order to review, that s. 16 of the State and Territorial Laws and Records Recognition Act 1901-1964 was ultra vires the Parliament, the Master lost all jurisdiction to proceed further in the application and that that application was thereupon removed into this Court by virtue of s. 40A of the Judiciary Act. In my opinion, the Master had no jurisdiction to grant the order nisi to review, nor was there any jurisdiction in the Supreme Court of Victoria to entertain the order nisi which he had issued or the summons to set it aside. I agree in this respect with the view of the learned judge of the Supreme Court before whom the summons and the order nisi came on to be heard. (at p413)

7. As I have said, an inter se question arose so soon as the submission was made that the Commonwealth Act was ultra vires. It arose though the application for an order to review could have been granted on what I shall call non-inter se grounds. That an order to review could be granted without deciding the inter se point would not mean that the inter se point had not arisen. In my opinion, the proper view when deciding whether an inter se point has arisen is that, if the matter may be decided wholly or partly by a decision of the point raised, the inter se question will have arisen and the jurisdiction of the State Court lost. It will be nothing to the point, in my opinion, that there are other non-inter se grounds on which the matter may or probably will be decided. In this respect I would respectfully qualify what Kitto J. said in Lansell v. Lansell [1964] HCA 42; (1964) 110 CLR 353, at pp 357-358 . Further, when the matter is removed all the questions are for the decision of this Court, inter se and non-inter se, though the Court may take the course on occasions of remitting the non-inter se points for the decision of the Supreme Court. There may perhaps be cases in which there is a non-inter se issue so disparate from other parts of the case as virtually to constitute a separate proceeding which will remain within the competence of the State court. But nothing of that kind is present here. (at p413)

8. Accordingly, in my opinion, there is now before me an application for an order nisi to review the ruling of the magistrate that there was a case to answer in the charge against the applicant on the information of the respondent. Having communicated to the parties my decision in this respect, I invited each to make written submissions as to whether or not I should grant at this stage of the magisterial proceedings an order nisi to review the magistrate's ruling bearing in mind the necessity for the existence of special circumstances calling for that course to be followed. (at p413)

9. The parties have now placed before me in writing their submissions on the one hand in support of the application for the grant of an order to review and on the other hand in opposition to such a grant. Whilst I appreciate that there may be circumstances in which it may be convenient to review the decision of the magistrate that there is a prima facie case in support of a complaint, before the hearing is completed, I entertain some doubt as to whether the expression of that view by a magistrate is an order within the meaning of s. 155 (1) of the Justices Act 1958 (Vict.). However I do not find it necessary to decide that question. In any case I think it would be proper for me sitting alone in a matter which derived from the State of Victoria to follow the decision of the Supreme Court of Victoria in Byrne v. Baker [1964] VicRp 57; (1964) VR 443 . See also Mudge v. O'Grady [1965] VicRp 8; (1965) VR 65 . (at p414)

10. Consequently I have examined the matter to see whether there are any special circumstances which persuade me that it would be proper to grant an order to review at this stage of the proceedings on the complaint. I have carefully considered in this connexion the very helpful written submissions which have been made. However I have come to the conclusion that it would be highly inconvenient to grant an order to review the decision of the magistrate at this stage of the hearing of the complaint. I do not think that there is any matter of law which has been raised the decision of which on an order to review would resolve the fate of the information, nor do I think that any significant part of the matter the subject of the information could be disposed of on any such review. As I think the complaint should proceed I do not think I ought to discuss at all the state of the evidence or the points of law raised in the submissions. It is sufficient that I am not satisfied that there are any such special circumstances as would warrant me granting an order to review at this stage of the hearing of the complaint. (at p414)

11. I therefore refuse the application for such an order with costs. (at p414)

ORDER