Clarke v Director of Public Prosecutions [2000] FCA 849 (23 June 2000)

Last Updated: 23 June 2000

FEDERAL COURT OF AUSTRALIA

Clarke v Director of Public Prosecutions [2000] FCA 849

JURISDICTION - application for writ of prohibition and injunction to restrain Director of Public Prosecutions from maintaining prosecution under Corporations Law of Australian Capital Territory in Supreme Court of Australian Capital Territory - whether Federal Court has jurisdiction to hear application

Corporations Act 1989 (ACT) ss 49, 50, 51, 51AA

Jurisdiction of Courts Legislation Amendment Act 2000 (Cth)

Judiciary Act 1903 (Cth) s 39B

Acts Interpretation Act 1901 (Cth) s 8

PETER DANIELS CLARKE v DAMIAN BUGG QC, COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS

N 550 of 2000

MOORE J

23 JUNE 2000

SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 550 OF 2000

BETWEEN:	PETER DANIELS CLARKE APPLICANT
AND:	DAMIAN BUGG QC, COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS RESPONDENT
JUDGE:	MOORE J
DATE OF ORDER:	23 JUNE 2000
WHERE MADE:	SYDNEY

THE COURT ORDERS THAT:

1. The application is dismissed.

2. The applicant pay the respondent's costs of the motion and the application.

Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	N 550 OF 2000

BETWEEN:	PETER DANIELS CLARKE APPLICANT
AND:	DAMIAN BUGG QC, COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS RESPONDENT

JUDGE:	MOORE J
DATE:	23 JUNE 2000
PLACE:	SYDNEY

REASONS FOR JUDGMENT

1 On 25 May 2000 these proceedings were commenced by Mr Peter Clarke ("the applicant"). The applicant sought a writ of prohibition and an injunction against the Commonwealth Director of Public Prosecutions ("the DPP"). The application, in terms, invoked the jurisdiction of the Federal Court arising under s 19(1) of the Federal Court of Australia Act 1976 (Cth) ("the FC Act") and s 39B(1) of the Judiciary Act 1903 (Cth) ("the Judiciary Act").

2 On 27 January 2000, the applicant pleaded guilty to five charges in proceedings brought in the Supreme Court of the Australian Capital Territory ("the Supreme Court") alleging fraudulent conduct on his part in the management and operation of the Burns Philp Trustee Company (Canberra) Ltd ("the Trustee Corporation"). The charges were based on alleged breaches of provisions of the Corporations Law of the Australian Capital Territory ("the Corporations Law") (being a law deriving from ss 5 and 82 of the Corporations Act 1989 (Cth) ("the Corporations Act ")). In the application, under a heading "details of claim", the applicant set out in 25 numbered paragraphs the nature of the case he proposed to maintain. It was, in summary, that: the indictment had been presented or filed by the DPP who was an officer of the Commonwealth; the Supreme Court was a Territory Court, not a court established under Chapter III of the Constitution and its judges were not officers of the Commonwealth; the breaches were of a Commonwealth law; and the Corporations Act did not confer criminal jurisdiction on the Supreme Court to deal with breaches of that Act. The writ of prohibition and injunction were to restrain or enjoin the DPP from maintaining the prosecution against the applicant in a court that was not competent to deal with the matter.

3 The application in this Court came before the duty judge on 25 May 2000 as an ex parte application. Leave was then given to the applicant to file the application in court. The matter was adjourned to be listed before the duty judge on 1 June 2000. It was in those circumstances that the matter came before me that day. Counsel appeared for the DPP and submitted, in support of a notice of motion filed that day, that the Federal Court did not have jurisdiction to hear and determine the application. The applicant took issue with this contention. I ordered that written submissions be filed dealing with this contention and indicated I would deal with it as a preliminary issue. Written submissions concluded on 14 June 2000.

4 While the written submissions were lengthy and detailed, and traversed a number of issues, I propose to deal in this judgment only with the question of jurisdiction of the Federal Court. I should here note that the written submissions of the applicant raised a number of issues which I view as false issues in the sense that the submissions were untenable. I therefore do not propose to address every issue raised. I have taken this approach because this application came before the Court as an urgent matter and I am dealing with it on that basis. The urgency arises because the Supreme Court is to hear argument on sentencing on 26 June 2000. It appears that the applicant thought it was necessary or at least desirable for this Court to hear and determine his application before sentencing took place. Equally, it appears, the DPP desired to establish before the sentencing hearing that this Court, if it be the case, has no jurisdiction to determine the application.

5 Counsel for the DPP advanced two arguments in support of its contention. The first was that the Corporations Act, properly construed, denied the Federal Court jurisdiction it might otherwise have had under s 39B of the Judiciary Act at the time the proceedings were commenced by the applicant in this Court (25 May 2000). The second was that amendments made to the Corporations Act by the Jurisdiction of Courts Legislation Amendment Act 2000 (Cth) ("the Amending Act") put beyond doubt that the Federal Court did not have jurisdiction under s 39B in a matter of this type.

6 Before the amendments made to the Corporations Act by the Amending Act, s 49 of the Corporations Act provided:

(1) This Division provides in relation to:

(a) the jurisdiction of courts in respect of civil matters arising under the Corporations Law of the Capital Territory; and

(b) the jurisdiction of the courts of the Capital Territory in respect of civil matters arising under any Corporations Law of a State;

and so provides to the exclusion of:

(c) the Jurisdiction of Courts (Cross-vesting) Act 1987; and

(d) section 39B of the Judiciary Act 1903

(2) Nothing in this Division affects any other jurisdiction of any court.

7 The expression "civil matter" was defined in s 50 as meaning "a matter other than a criminal matter". The conferral of jurisdiction on both the Federal Court and the Supreme Court in respect to civil matters arising under the Corporations Law was achieved by s 51 which read:

(1) Jurisdiction is conferred on the Federal Court of Australia with respect to civil matters arising under the Corporations Law of the Capital Territory.

(2) Subject to section 9 of the Administrative Decisions (Judicial Review) Act 1977, jurisdiction is conferred on the Supreme Court of each State and the Capital Territory with respect to civil matters arising under the Corporations Law of the Capital Territory.

(3) the jurisdiction conferred on a Supreme Court by subsection (2) is not limited by any limits to which any other jurisdiction of that Supreme Court may be subject.

8 Whether s 49 denied the Federal Court jurisdiction under s 39B of the Judiciary Act depends on the answer to at least two questions. The first is whether an application for prerogative or injunctive relief against the DPP restraining the maintenance of proceedings of the type in question in the Supreme Court is a civil matter "arising under" the Corporations Law. The second is whether, as a matter of construction, s 49(1)(d) impliedly limits the scope of s 39B so as to limit the jurisdiction of the Federal Court to grant prerogative or injunctive relief against an officer of the Commonwealth. However it is unnecessary to consider these issues given the conclusion I have reached about the effect of the Amending Act. While it would be desirable for the anterior operation of ss 49 and 51, in their unamended form, to be addressed in this judgment, my consideration of the question would be hurried and may have implications beyond these proceedings. Moreover I apprehend that the parties have not addressed all relevant issues in the written submissions and, in particular, have not addressed the first question referred to earlier in this paragraph: see R v Commonwealth Court of Conciliation and Arbitration; Ex parte Barrett [1945] HCA 50; (1945) 70 CLR 141 at 154. Accordingly I propose only to address the arguments concerning the Amending Act.

9 The second argument of counsel for the DPP is based on amendments made to the Corporations Act and the Judiciary Act by the Amending Act. Section 49 of the Corporations Act was amended by adding an additional paragraph after par (b) of subs (1). That additional paragraph read:

(ba) the jurisdiction of courts in civil matters in respect of decisions made by officers of the Commonwealth to prosecute persons for offences against the Corporations Law of a State or the Capital Territory and related criminal justice process decision;

10 Section 51 was amended to make it subject to s 51AA which was added to the Corporations Act by the Amending Act. That latter section relevantly provided:

(1) If a decision to prosecute a person for an offence against the Corporations Law of a State or the Capital Territory has been made by an officer or officers of the Commonwealth and the prosecution is proposed to be commenced in a court of a State or the Capital Territory:

(a) neither the Federal Court nor the Family Court has jurisdiction with respect to any matter in which a person seeks a writ of mandamus or prohibition or an injunction against the officer or officers in relation to the decision; and

(b) jurisdiction with respect to any such matter is conferred on the Supreme Court of the State or Territory in which the prosecution is proposed be commenced.

(2) Subject to subsection (3), at any time when:

(a) a prosecution for an offence against the Corporations Law of a State or the Capital Territory is before a court of a State or the Capital Territory; or

(b) ...

the following apply:

(c) neither the Federal Court nor the Family Court has jurisdiction with respect to any matter in which the person who is or was the defendant in the prosecution seeks a writ of mandamus or prohibition or an injunction against an officer or officers of the Commonwealth in relation to a related criminal justice process decision;

(d) jurisdiction with respect to any such matter is conferred on the Supreme Court of the State or Territory in which the prosecution ... is before a court.

(3) Subsection (2) does not apply where a person has applied for a writ of mandamus or prohibition, or an injunction, against an officer or officers of the Commonwealth in relation to a related criminal justice process decision before the commencement of a prosecution for an offence against a law of the Commonwealth, or of a State or a Territory.

11 The expression "related criminal justice process decision" was defined in s 51AA(6):

related criminal justice process decision, in relation to an offence, means a decision (other than a decision to prosecute) made in the criminal justice process in relation to the offence, including:

(a) a decision in connection with the investigation, committal for trial or prosecution of the defendant; and ...

12 Amendments were also made to the Judiciary Act which mirrored the amendments to the Corporations Law. That is, s 39B of the former Act was amended by inserting subss (1B) to (1F) which, for present purposes, denied (by operation of subs (1C)) jurisdiction to the Federal Court with respect to any matter in which a person in the position of the applicant (a defendant in a prosecution) sought a writ of mandamus or prohibition or an injunction against an officer of the Commonwealth in relation to a related criminal justice process decision. Of some significance is that while par (c) of subs (1C) denied jurisdiction to the Federal Court, that subsection also, by par (d), expressly conferred jurisdiction on the relevant State or Territory Supreme Court. Thus, if the jurisdiction of the Federal Court was being removed (and that would depend on the effect of ss 49 and 51 of the Corporations Law prior to these amendments which is referred to in par 7 above) it was plainly being conferred on another Court so as to enable the prosecution of an application for prerogative or injunctive relief in relation to a related criminal justice process decision (as defined). Subsection (1D), which rendered subs (1C) inapplicable if the proceeding, relevantly, in the Federal Court had been commenced before the commencement of the prosecution, has no application in the present matter. On any view the prosecution had commenced before the present application was made.

13 Of some importance is the date on which the Amending Act came into force. Section 2 of the Act declared that the provisions relevant these proceedings, which were to be found in Sch 2, commenced when the Act received royal assent. That was 30 May 2000. However item 16(3) of Pt 2 of Sch 2 provided:

(3) The amendments of ... the Corporations Act 1989 and the Judiciary Act 1903 made by Part 1 of this Schedule also apply in relation to:

(a) a decision made before the commencement to prosecute a person for an offence, unless that decision is the subject of an application that is before a court at 13 April 2000; or

(b) a related criminal justice process decision made before the commencement in relation to an offence, unless the decision is the subject of an application that is before a court at 13 April 2000.

14 The expression "the commencement" in the above item is a defined term that, in practical effect, is to be treated as a reference to when the relevant provisions of the Amending Act took effect. It is to be recalled that the application to this Court was commenced on 25 May 2000. That is, it was commenced before the Amending Act received royal assent (that was, for present purposes, when the relevant provisions of that Act commenced) but after the time nominated in item 16(3), namely 13 April 2000. The amendments only apply if the application in these proceedings is comprehended by item 16(3).

15 As the written submissions developed, the applicant sought to characterise the proceeding in this Court as directed to, or seeking to impugn, the decision to prosecute. I do not accept that the application, as originally framed, should be treated as raising this issue. That is, it is not apparent that the application, as filed, sought to challenge the decision to prosecute rather than the maintenance of the criminal proceedings themselves in the sense of the continued prosecution of them. Indeed the application commences by saying:

"The Applicant seeks a Writ of Prohibition and injunction against the [DPP]. The application seeks to enjoin [the DPP], from maintaining the prosecution of the Applicant ... in the Supreme Court of the Australian Capital Territory ..."

16 Several similar formulations referring to the maintenance of the prosecution appear in the 25 numbered paragraphs.

17 It appears that the characterisation of the subject matter of the application as a decision to prosecute, is intended to found an argument that the amendments to the Judiciary Act, in so far as they relate to such a decision, only concern such a decision when the prosecution is "proposed to be commenced" and, in this case, the prosecution has already commenced. However, while the precise legal character of the act or conduct which is sought to be impugned is not entirely clear, it is nonetheless palpably clear from the application that the act or conduct concerns a decision in connection with the prosecution of the applicant which is a "related criminal justice process decision" as defined in s 39B(3) of the Judiciary Act as amended by the Amending Act.

18 It appears to me that the issue of substance raised in this motion is whether the amendments made by the Amending Act operate on an application filed before the amendments commenced. Plainly s 8 of the Acts Interpretation Act 1901 (Cth) ("the Interpretation Act") would operate to preserve the application (presently assuming that the Federal Court had jurisdiction to hear determine the application at the time it was filed) unless a clear contrary intention was apparent in the Amending Act (my consideration of s 8 should be treated as including consideration of common law principles of the type discussed in Maxwell v Murphy [1957] HCA 7; (1957) 96 CLR 261). The applicant also relied on s 15A of the Interpretation Act on the footing that a proceeding of the type he wishes to maintain is the subject of some form of Constitutional guarantee. However this proceeding is, in my opinion, no different in principle to a proceeding of the type considered by the High Court in Abebe v Commonwealth of Australia [1999] HCA 14; (1999) 162 ALR 1. That is to say, it is a proceeding under an Act which may be amended by Parliament so as to limit the existing jurisdiction of this Court and the Constitution does not fetter Parliament's power to do so.

19 Returning to s 8 of the Interpretation Act (and the applicable common law principles), I am satisfied that the Amending Act evinces a clear intention that it operate retrospectively in the sense that the Federal Court does not have jurisdiction to hear and determine an application if the application was not on foot at 13 April 2000. The language of the Amending Act is plain. In one sense, the Amending Act may not have a retrospective operation in that it may be viewed as operating on and from 30 May 2000 but its prospective operation, to deny jurisdiction, is effective in relation to applications of a particular character, namely applications filed after 13 April 2000. I am fortified in this conclusion by the legislative scheme in the Amending Act which confers jurisdiction on, relevantly, the Supreme Court at the same time and on the same terms as it denies jurisdiction to the Federal Court. Thus the mischief sought to be avoided by s 8 does not, at least in substance, arise in the present case though I accept that there may be rare cases in which limitation periods or time limits may be affected by the amendments if proceedings were commenced in this Court which should have been commenced elsewhere. However I presently cannot conceive of how that might operate in relation to proceedings commenced between 13 April 2000 and 30 May 2000 which could be regularised after 30 May 2000 by recommencing the proceedings in the appropriate Court.

20 The applicant has indicated, both at the hearing on 1 June 2000 and in subsequent written submissions, that he desires to amend the application and, as I understand his position, rely on jurisdiction conferred on this Court by not only s 39B of the Judiciary Act but also jurisdiction conferred by s 51 of the Corporations Law. Even if he does so, then on the view I take of the effect of the Amending Act, s 51AA of the Corporations Law operates to deny the Federal Court jurisdiction under that Act to hear and determine the application. Accordingly, no purpose would be served by granting the amendment which I refuse.

21 I have concluded the Court does not have jurisdiction to hear and determine this application even if it were amended in the way just discussed. Accordingly I propose to order that the application is dismissed. While I accept that the applicant was unaware of the provisions of the Amending Act when he made his application, and they did not then operate to deny the Federal Court jurisdiction, he has nonetheless resisted, unsuccessfully, the motion of the DPP. Accordingly the applicant should pay the DPP's costs of the motion and the application.

I certify that the preceding twenty-one (21) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Moore.

Associate:

Dated: 23 June 2000

The applicant appeared in person.
Counsel for the respondent:	Mr R Maidment
Solicitor for the respondent:	Commonwealth Director of Public Prosecutions
Date of Hearing:	1 June 2000
Written submissions concluded:	14 June 2000
Date of Judgment:	23 June 2000