Moore v Commonwealth Director of Public Prosecutions

1. [1]

   WHITE JA: I agree with Griffiths AJA.

2. [2]

   GRIFFITHS AJA: The applicant seeks leave to appeal from the judgment and orders of Chen J in Moore v Commonwealth Director of Public Prosecutions [2022] NSWSC 1458 (primary judgment or PJ).

3. [3]

   Leave is required under s 101(2)(l) of the Supreme Court Act 1970 (NSW), because the judgment below was a summary judgment which dismissed the applicant’s First Cross-Summons filed 1 March 2022 under r 13.4(1) of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR). As Ward P said in Ahmed v Ahmed [2023] NSWCA 45 at [22] (Adamson JA agreeing):

4. [4]

   There is a jurisdictional issue which must be addressed at the threshold but it is convenient first to outline the context in which that issue now arises.

Background and Procedural History

1. [5]

   The conduct underlying the procedural history relates to Mr Moore being in possession of a prohibited weapon (a knife) without a permit contrary to s 7(1) of the Weapons Prohibition Act 1998 (NSW) and carrying that prohibited item through a screening point at Tamworth Airport contrary to s 55(3) of the Aviation Transport Security Act 2004 (Cth).

2. [6]

   Mr Moore was convicted in the Local Court of an offence under each of those sections. On appeal to the District Court, the s 7(1) conviction was quashed. The s 55(3) charge was proved but was dismissed pursuant to s 19B(1)(c) of the Crimes Act 1914 (Cth).

3. [7]

   Mr Moore then commenced a series of private prosecutions against three New South Wales police officers alleging that they committed a range of offences in connection with the prosecution of him. The NSW Director of Public Prosecutions (NSW DPP) took over those prosecutions and discontinued them. Mr Moore unsuccessfully challenged that decision: Moore v Director of Public Prosecutions (NSW) [2021] NSWSC 587; (2021) 391 ALR 336 per Cavanagh J.

4. [8]

   Mr Moore then arranged for a series of court attendance notices to be issued against four members of the NSW Police Force detailing a number of charges that he laid against them. The charges related to alleged offences under the Crimes Act 1914 and the Crimes Act 1900 (NSW). Though Mr Moore withdrew some charges in the court attendance notices, both Commonwealth and State offences remained.

5. [9]

   The matters came before the Tamworth Local Court in late 2021. Mr Moore advised that the matters were to proceed on indictment in the District Court. On 27 January 2022, the Commonwealth Director of Public Prosecutions (CDPP) informed Mr Moore that the CDPP had determined, pursuant to s 9(5) of the Director of Public Prosecutions Act 1983 (Cth), that the CDPP would “take over and discontinue the prosecutions” instituted by him. On 28 January 2022, the solicitor for the CDPP advised the Local Court that the CDPP had taken over the prosecution of the Commonwealth offences and had made a decision to decline to carry on the proceedings. The CDPP sought leave to withdraw the Commonwealth charges and those charges were withdrawn and formally dismissed.

6. [10]

   On 1 March 2022, the NSW DPP wrote to the Registrar of the Tamworth Local Court advising that, pursuant to ss 9(1) and 9(4)(b) of the Director of Public Prosecutions Act 1986 (NSW), the NSW DPP had taken over, and declined to proceed further in, the prosecution of the NSW offences. Those charges were withdrawn and formally dismissed.

7. [11]

   Also on 1 March 2022, Mr Moore filed the “First Cross-Summons” in the Supreme Court (in which the CDPP was named as the only defendant). He sought the following relief (reproduced without alteration):

   1. (1)

      an application under s 69 of the Supreme Court Act “in the nature of a writ of Prohibition to cease proceedings in the Local Court and for orders of certiorari and mandamus until the related matter before the Supreme Court has been finalised”;

   2. (2)

      an order in the nature of certiorari quashing the Magistrate’s decisions dated 28 January 2022 and 18 February 2022;

   3. (3)

      an order pursuant to r 59.9 of the UCPR that Mr Moore be provided with “written reasons and statement from the evidence supplied to the CDPP for the Directors reasons”;

   4. (4)

      alternatively, a similar order that under “sections 6(2C)(a), 6(2C)(b)(i)(ii) of the Director of Public Prosecution (sic) Act 1983 (Cth) provide Mr Moore a written reason and statement from the evidence supplied to the DPP for the Directors decision”;

   5. (5)

      alternatively, a similar order that under “section 25D of the Acts Interpretation Act 1901 (Cth) to provide Mr Moore a written reason and statement from the evidence supplied to the CDPP for the Directors decision”; and

   6. (6)

      “[a]n order pursuant to Rule 59.9(4) of the [UCPR] for a court order if the above orders have been complied with for the Director to provide the plaintiff with a copy of the Directors decision and a statement of the reasons for the decision from the evidence supplied to the CDPP”.

8. [12]

   In relation to [11(2)] above, Mr Moore sought relief in connection with two “decisions” purportedly made by the Magistrate – the first to discontinue the Commonwealth charges, and the second to discontinue the State charges. For reasons which will shortly be developed, those decisions did not have to be made because the effect of the CDPP’s conduct in taking over (and declining to proceed with) the prosecution of the charges was sufficient of itself to terminate their prosecution.

9. [13]

   The CDPP filed a notice of motion on 31 March 2022 seeking that Mr Moore’s First Cross-Summons be dismissed or struck out. By a notice of motion filed on 28 April 2022, Mr Moore sought dismissal of the CDPP’s notice of motion.

10. [14]

    As noted above, Chen J ordered that Mr Moore’s First Cross-Summons be summarily dismissed. Mr Moore seeks leave to appeal in relation to that decision.

The hearing and further submissions on jurisdiction

1. [15]

   The application for leave to appeal was heard on 10 March 2023. Mr Moore represented himself. Mr Shariff SC appeared for the CDPP. Mr Moore made lengthy oral submissions in support of his leave application. The CDPP was generally content to rely on its outline of written submissions.

2. [16]

   There was a lengthy exchange with the Court on the issue of the basis of the Court’s jurisdiction below. This resulted in the parties being given an opportunity to file supplementary written submissions on this issue. The Court ordered that the CDPP, within 28 days, provide written submissions in relation to the jurisdiction of the Supreme Court to determine Mr Moore’s First Cross-Summons, particularly having regard to ss 39B(1), (1A)(c) and (1C)(a) and (d) of the Judiciary Act 1903 (Cth) and the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act), together with a short note on costs. Mr Moore was given 14 days after the service of the CDPP’s submissions to provide any submissions in response. The Court directed that the matter would then be determined on the papers, based on the parties’ written and oral submissions. On 5 April 2023 the CDPP sought an extension of four weeks to provide further submissions. This extension of time was granted. On 3 May 2023 Mr Moore sought an extension of time, such that he be given 28 days after the service of the CDPP’s submission to file any response. This extension of time was granted.

Jurisdiction of the Supreme Court

1. [17]

   At PJ[75]–[77], Chen J addressed the issue of the Court’s jurisdiction to determine the proceeding, having regard to the operation of some complex provisions primarily in the Judiciary Act and the Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth) (Cross-vesting Act). His Honour noted the CDPP’s submission that, while its primary position was that the Supreme Court lacked jurisdiction, it was at least possible for jurisdiction to be conferred upon the Supreme Court in relation to the actions of a Commonwealth officer, via what was described as a “circuitous route” under the Cross-vesting Act. Adopting the approach urged upon him by the CDPP, his Honour concluded at PJ[77] that, because he had determined that the proceedings should summarily be dismissed, “it is unnecessary to determine whether jurisdiction could be conferred in the way the CDPP suggested”.

2. [18]

   With great respect to the primary judge, the issue of jurisdiction had to be determined at the outset. As the Court stated in Zhang v Zemin (2010) 79 NSWLR 513; [2010] NSWCA 255 at [39]–[40]:

3. [19]

   The issue of jurisdiction was sufficiently disputed by the CDPP below to require the issue to be determined. The issue is far from straightforward.

4. [20]

   As noted above, the parties were invited in this Court to provide post-hearing supplementary submissions on the subject. Their submissions may be summarised as follows.

5. [21]

   The CDPP’s written submissions dated 4 May 2023 were signed by Mr P D Herzfeld SC and Ms E S Jones. Those submissions drew a distinction between the relief sought in prayers 1 and 2 of the First Cross-Summons and the other prayers (see [11] above). I shall summarise the CDPP’s submissions on jurisdiction at greater length than normal because they are persuasive and should be accepted.

6. [22]

   As to prayers 1 and 2, the CDPP submitted that jurisdiction was conferred on the Supreme Court to determine the First Cross-Summons by the combined operation of s 39B(1) of the Judiciary Act and s 4(1) of the Cross-vesting Act. After noting that the effect of s 38(e) of the Judiciary Act is to deprive the Supreme Court of jurisdiction in matters in which the High Court has exclusive jurisdiction, the CDPP submitted that, if the Federal Court has jurisdiction, then s 4(1) of the Cross-vesting Act operated to invest the Supreme Court with federal jurisdiction in relation to the whole matter.

7. [23]

   The CDPP submitted that the Federal Court had jurisdiction under s 39B(1) of the Judiciary Act and there is nothing in s 39B(1A)(c) which operated to displace that jurisdiction.

8. [24]

   It is desirable to set out the relevant terms of ss 39B(1), (1A), (1B) and (1C) of the Judiciary Act, which confer original jurisdiction on the Federal Court in respect to certain matters.

9. [25]

   The CDPP submitted that, for the following reasons, the matter which is the subject of the First Cross-Summons prima facie falls within the terms of s 39B(1) and no other part of s 39B relevantly qualifies those terms.

10. [26]

    First, this is because even if this were “a matter in respect of which a criminal prosecution is instituted or any other criminal matter” within the meaning of the concluding words of s 39B(1A)(c), that express limitation of s 39B(1A)(c) does not limit or otherwise bear upon the conferral of jurisdiction in s 39B(1). Section 39B(1A) is a source of jurisdiction additional to and separate from s 39B(1). This is made clear by the word “also” in s 39B(1A) and by the omission of s 39B(1A) from the opening words of s 39B(1), which otherwise specify the ways in which s 39B(1) is limited by the other subsections of s 39B.

11. [27]

    Secondly, in any event, the matter is not “a matter in respect of which a criminal prosecution is instituted” or another “criminal matter” within the meaning of the concluding words of s 39B(1A)(c).

12. [28]

    Section 39B(1A) was enacted in 1997 without the closing words of limitation in the current form of para (c). On enactment, para (c) simply provided that the Federal Court had original jurisdiction in “any matter … arising under any laws made by the Parliament”. In 1999, the words of limitation were added to the end of para (c). The explanatory memorandum for the amending legislation (the Law and Justice Legislation Amendment Act 1999 (Cth), Sch 10) recorded:

13. [29]

    The meaning of “criminal matter” in s 39B(1A)(c) was considered by the Full Court of the Federal Court in The Commonwealth v Lyon (2003) 133 FCR 265; [2003] FCAFC 284. The Full Court adopted a narrow construction of the phrase “in respect of” in s 39B(1)(c). The Commonwealth had sought declarations and orders to establish its entitlement to claim public interest immunity in respect of some documents which had been inadvertently disclosed in the course of committal proceedings.

14. [30]

    Relevantly, the Full Court identified the “matter” in those proceedings as being “a real controversy between the parties as to the entitlement of the Commonwealth to protect the confidentiality of the contentious material” (at [29]). Of this matter, the Court said: “No criminal prosecution has been instituted in respect of the matter identified” (at [47]). The relatively narrow approach to the words “in respect of” is apparent.

15. [31]

    At [48] and [50], the Full Court concluded that the matter was not “any other criminal matter” within sub-s 39B(1A)(c):

16. [32]

    The CDPP pointed out that the Federal Court has not treated the words of limitation in s 39B(1A)(c) as excluding its jurisdiction in various matters which arise in the context of potential or actual criminal proceedings, or in relation to criminal conduct. For example, proceedings seeking review of decisions in connection with search warrants (prior to a prosecution being commenced) have been brought in reliance on s 39B(1A)(c) (see Construction, Forestry, Mining and Energy Union v Commissioner of the Australian Federal Police (No 2) [2016] FCA 833 at [9] and Kennedy v Baker (2004) 135 FCR 520; [2004] FCA 562 at [9]-[11]).

17. [33]

    In Helicopter Resources Pty Ltd v The Commonwealth (2019) 264 FCR 174; [2019] FCAFC 25 at [29], [32], [34], the Full Court was satisfied that it had jurisdiction to entertain an application for prohibition against the Coroner’s Court of the Australian Capital Territory seeking to restrain it from requiring certain persons to give evidence in an inquest prior to the finalisation of a prosecution. In Hanson v Burston [2022] FCA 1234 at [54]-[55], [88]-[89], [91], Bromwich J determined that s 39B(1A)(c) did not preclude the Court from determining a civil cause of action defined by reference to criminal conduct. His Honour referred to Lyon and concluded that there was no criminal matter because the Court was not “called upon to adjudicate upon criminal conduct, nor exercise criminal jurisdiction which it does not have, nor consider the imposition of criminal sanctions” (at [91]).

18. [34]

    Thus even if the words of limitation in s 39B(1A)(c) were to be understood as operating to exclude jurisdiction otherwise conferred by s 39B(1), that exclusion would not operate here. The matter comprising the challenge to the CDPP’s decision to decline to proceed with prosecutions did not constitute “a matter in respect of which a criminal prosecution is instituted or any other criminal matter”. The matter, being the controversy between the parties as to the validity of the CDPP’s decision, is not one “in respect of which” a criminal prosecution had been instituted. That is so even though the decisions factually rose out of criminal prosecutions. Nor is the challenge to the CDPP’s decision “any other criminal matter”. The Supreme Court (as opposed to the Local Court) was not asked to adjudicate criminal liability or to impose punishment for criminal conduct.

19. [35]

    Thirdly, the jurisdiction conferred on the Federal Court by s 39B(1) to determine the First Cross-Summons was not excluded by s 39B(1B) or (1C).

20. [36]

    Those provisions were enacted in 2000 (Jurisdiction of Courts Legislation Amendment Act 2000 (Cth), Sch 2), with the object — explained in the second reading speech — of avoiding “the use of unmeritorious delaying tactics in the criminal justice process by removing the ‘collateral’ access of defendants to federal administrative law procedures and remedies” in the Federal Court. The second reading speech continued:

21. [37]

    Section 39B(1B) has no application here because, in the CDPP’s submission, there was no “prosecution … proposed to be commenced in a court of a State or Territory” in light of the CDPP’s decision not to prosecute. The chapeau makes clear that s 39B(1B) is concerned with writs brought in connection with forthcoming prosecutions, as opposed to prosecutions which have been discontinued.

22. [38]

    In Phong v Attorney-General of the Commonwealth (2001) 114 FCR 75; [2001] FCA 1241 at [67]-[68], Hely J (with whom Black CJ agreed) said:

23. [39]

    Nothing in those reasons or in the terms of s 39B(1B) supports the view that the limitation on jurisdiction continues after a prosecution in a State or Territory court is terminated. It is also well to bear in mind the general proposition that a conferral of jurisdiction on a court is not readily to be cut down, so submitted the CDPP.

24. [40]

    In addition, the CDPP submitted that the phrase “a decision to prosecute” refers only to an affirmative decision to bring or institute a prosecution. The concluding words of s 39B(1B)(a) refer back to that decision. The “matter” referred to in that sub-paragraph, with respect to which the Federal Court is deprived of jurisdiction, is thus one in which there is a challenge to “a decision to prosecute” and it is to that kind of matter that the concluding words of s 39(1B)(b) refer. It is only where a person seeks a writ of mandamus or prohibition, or an injunction, in relation to an affirmative decision to prosecute that the Federal Court is deprived of jurisdiction and the Supreme Court is invested with jurisdiction. The words “a decision to prosecute” do not comprehend a decision not to prosecute. A prosecution could not be “proposed to be commenced” in circumstances where a decision to decline to prosecute “has been made” as is the case here.

25. [41]

    To sum up, the CDPP’s position (which should be accepted) was that s 39B(1B) did not apply here for two reasons:

    1. (1)

       there was, at the time of the proceedings before the Supreme Court, no prosecution “proposed to be commenced in a court of a State or Territory”; and

    2. (2)

       there was no challenge by the applicant to a “decision to prosecute” made by a Commonwealth officer.

26. [42]

    The CDPP then submitted that nor did s 39B(1C) apply. When the First Cross-Summons was determined, no prosecution, nor appeal arising out of a prosecution, was extant for the purposes of s 39B(1C)(a) and (b). In any event, the First Cross-Summons was not brought by a “person who is or was the defendant in the prosecution” in the terms of s 39B(1C)(c). The applicant was the initial prosecutor in the proceedings in respect of which the impugned decisions were made. While the applicant was the defendant in a previous prosecution, those proceedings were finalised well before the First Cross-Summons was filed. The proceedings for judicial review could not be considered an appeal in relation to the prosecution of the applicant. Because the controversy raised by the First Cross-Summons did not answer the description of the “matter” outlined in s 39B(1C)(c), the Federal Court was not deprived of jurisdiction by that paragraph. Nor was the Supreme Court invested with jurisdiction, for the “matter” referred to in s 39B(1C)(d) must be the “matter” described in s 39B(1C)(c).

27. [43]

    Once it is concluded that the Federal Court had jurisdiction with respect to prayers 1 and 2 of the First Cross-Summons, and that the Supreme Court was invested with equivalent jurisdiction by s 4(1) of the Cross-vesting Act, the CDPP submitted (correctly) that the Supreme Court’s jurisdiction with respect to prayers 3-6 in the First Cross-Summons readily follows. Each claim was evidently part of the one “matter” (see Fencott v Muller (1983) 152 CLR 570; [1983] HCA 12 at 608 per Mason, Murphy, Brennan and Deane JJ; Re Wakim; Ex parte McNally (1999) 198 CLR 511; [1999] HCA 27 at [140] per Gummow and Hayne JJ). None engaged any of the limitations canvassed above.

28. [44]

    As the Supreme Court was invested with jurisdiction by s 4(1) of the Cross-vesting Act, the CDPP submitted (correctly) that the matter was a “special federal matter” within the meaning of s 3(1) of that Act. That is because it was a matter within the original jurisdiction of the Federal Court by reason of s 39B of the Judiciary Act, in respect of which the Supreme Court would not, apart from the Cross-vesting Act, have jurisdiction.

29. [45]

    Section 6 of the Cross-vesting Act makes clear that the Supreme Court has jurisdiction to determine a special federal matter, albeit that the Supreme Court is obliged, by ss 6(1) and (3), to consider whether to transfer the proceedings to the Federal Court and, by s 6(4), to provide notice to the relevant Attorneys-General if proposing to determine the matter (see, eg, Hardwick v Federal Commissioner of Taxation [2015] NSWSC 1557 at [61]-[63]). The primary judge did not, and was not asked to, take those steps.

30. [46]

    However, s 6(9) makes clear that the fact that the primary judge did not make such an order under s 6(3) or give notice under s 6(4) does not invalidate his Honour’s decision (see Truthful Endeavour Pty Ltd v Condon (2015) 233 FCR 174; [2015] FCAFC 70 at [23]; Penson v Palmer [2018] FCA 1202 at [19]).

31. [47]

    It follows that the failure to take the steps required by ss 6(3) and 6(4) of the Cross-vesting Act did not deprive the Supreme Court of jurisdiction by operation of s 4(1) of the Cross-vesting Act.

32. [48]

    Turning to the ADJR Act, the CDPP accepted that, if jurisdiction was conferred on the Federal Court by ss 5 and 8 of that Act, s 4(1) of the Cross-vesting Act would have invested the Supreme Court with like jurisdiction. The matter would have been a special federal matter and the submissions above by the CDPP on that topic would apply. However, for the following reasons, the CDPP submitted (correctly) that jurisdiction was not conferred on the Federal Court by the ADJR Act.

33. [49]

    Schedule 1 to the ADJR Act specifies certain classes of decision to which the Act does not apply. Paragraph (xa) of Sch 1 specifies:

34. [50]

    Section 9A relevantly provides:

35. [51]

    The CDPP submitted that s 9A did not apply to the First Cross-Summons because:

    1. (1)

       at the time the Supreme Court proceedings were commenced, there was no prosecution for an offence before any court (s 9A(1)(a)); and

    2. (2)

       the application was not made “by the person who is or was the defendant in the prosecution” (s 9A(1)).

36. [52]

    Accordingly, s 9A did not exclude any jurisdiction arising under the ADJR Act.

37. [53]

    However, for the following reasons, the CDPP submitted (correctly) that jurisdiction was excluded by para (xa) of Sch 1. The reference therein to “decisions to prosecute” should be understood to include decisions whether to prosecute.

38. [54]

    First, para (xa) of Sch 1 and s 9A of the ADJR Act were introduced in 2000, at the same time as ss 39B(1B) and (1C) of the Judiciary Act (see Jurisdiction of Courts Legislation Amendment Act 2000 (Cth), Sch 2). There were earlier authorities to support the availability of review under the ADJR Act in respect of decisions to institute a prosecution, although it remained open to courts to decline to review such decisions in the exercise of their discretion.

39. [55]

    Notwithstanding that “a decision to prosecute” in the context of a prosecution “proposed to be commenced” in s 39B(1B) of the Judiciary Act ought to be construed as referring only to an affirmative decision to initiate the prosecution (see [40]-[46]), the CDPP submitted that para (xa) of Sch 1 to the ADJR Act should be understood more broadly as extending to decisions whether to prosecute. The context for the use of the words “decisions to prosecute” in para (xa) is significantly different. There are no temporally limited words, such as “proposed to be commenced”, which support a narrower construction. Conversely, if “decisions to prosecute” in para (xa) does not encompass decisions relating to charge selection (which are in substance decisions to prosecute for one offence rather than another) and/or declining to proceed with some or all charges, the exclusion in para (xa) could be rendered ineffective or arbitrary. For example, if review could be sought (subject to s 9A) of a decision to decline to proceed with a particular charge, the exclusion of review in respect of the decision to proceed with another charge would be of limited or no utility. Such a distinction is also unlikely in light of the apparent legislative intention to restrict review of decisions made in the criminal justice process.

40. [56]

    The CDPP submitted that this construction is not displaced even though s 9A(4) defines the expression “related criminal justice process decision” in an even broader way. The critical point is that “a decision to prosecute” is carved out of the ADJR Act entirely by para (xa) of Sch 1.

41. [57]

    To exclude review of decisions to decline to prosecute, along with decisions to institute a prosecution, would also be more consistent with the position at common law which the 2000 amendments were intending to replicate. In Maxwell v The Queen (1996) 284 CLR 501; [1996] HCA 46 at 534, Gaudron and Gummow JJ explained that position in the following way (citations omitted; emphasis added):

42. [58]

    The reasoning in the passage extracted above was applied by Gummow, Hayne, Crennan, Kiefel and Bell JJ in Likiardopoulos v The Queen (2012) 247 CLR 265; [2012] HCA 37 at [37].

43. [59]

    The CDPP’s decisions that were challenged in the First Cross-Summons were decisions to decline to proceed with certain prosecutions. That kind of decision is encompassed within the reference in para (xa) of Sch 1 to “decisions to prosecute” which, by virtue of that paragraph, are decisions that are not reviewable under the ADJR Act. Accordingly, jurisdiction to determine the First Cross-Summons was not conferred by the ADJR Act.

44. [60]

    The CDPP submitted that the application for leave to appeal should be dismissed with costs, save as to those costs relating to the issue of the Supreme Court’s jurisdiction. Each party should bear its own costs of that issue.

45. [61]

    Mr Moore provided post-hearing submissions dated 24 May 2023 on jurisdiction and on costs, together with a document headed “Index of Applicant’s (additional) submissions document in support”. The submissions set out a long list of Commonwealth legislation, only some of which were relevant to the issue of jurisdiction. In large part, the submissions reiterated background factual matters and repeated the applicant’s substantive claims against the police. The submissions had little, if anything, to say about the Supreme Court’s jurisdiction to determine the First Cross-Summons.

46. [62]

    This may well reflect the fact that, as noted, Mr Moore is an unrepresented litigant and the issues concerning jurisdiction are complex and technical. On the issue of costs, Mr Moore submitted that he should be awarded costs.

47. [63]

    By an email sent on Sunday 18 June 2023, Mr Moore provided a document entitled “Index to list of authorities on jurisdiction”, which he said he also sent to the CDPP. He provided a lengthy list of primary and secondary legislation, together with a four-page document which contained extracts from various cases under the following topics “Jurisdiction: S 69 Supreme Court Act 1970 (NSW)”; “Laws; binding on all courts”; Federal Judiciary; Public interest/Trespass/Leave to appeal; Procedural fairness/Contempt of court/Summons”, together with numerous other topics relating to substantive legal principles as opposed to jurisdiction.

48. [64]

    In his covering email dated 18 June 2023, Mr Moore asked when the hearing of his summons seeking leave to appeal would take place.

49. [65]

    He was reminded on 19 June 2023 that, as directed at the hearing on 10 March 2023, the matter was to be determined on the papers, based on the parties’ written and oral submissions and without a further oral hearing (see at [16] above).

50. [66]

    On 20 June Mr Moore stated that order 3 made on 10 March 2023 (which provided that the matter would be determined on the papers) was not part of the directions given to the parties. However, the transcript of the proceedings on 10 March 2023 shows clearly that the order was made in the course of the proceedings, in the presence of both parties.

51. [67]

    I have taken into account the materials provided by Mr Moore on 18 June 2023, notwithstanding that they were provided outside the timetable described at [16] above.

Consideration and determination

1. [68]

   It is convenient to address the following three matters in turn:

   1. (1)

      Jurisdiction of the Supreme Court;

   2. (2)

      Whether Mr Moore should have leave to appeal; and

   3. (3)

      Costs.

2. [69]

   I accept the CDPP’s submissions (which are comprehensively summarised above) as to why the Supreme Court had jurisdiction to determine the First Cross-Summons. Consequently, this Court also has jurisdiction to hear and determine Mr Moore’s application for leave to appeal. In brief, and for the reasons advanced by the CDPP:

   1. (1)

      The Supreme Court had jurisdiction to determine prayers 1 and 2 of the First Cross-Summons because of the combined operation of s 39B(1) of the Judiciary Act and s 4(1) of the Cross-vesting Act.

   2. (2)

      The jurisdiction conferred on the Federal Court by s 39B(1) of the Judiciary Act (and cross-vested to the Supreme Court under s 4(1) of the Cross-vesting Act) was not displaced by the words of limitation in s 39B(1A)(c) of the Judiciary Act, nor by the operation of ss 39B(1B) or (1C) of that Act.

   3. (3)

      Having jurisdiction to determine prayers 1 and 2 of the First Cross-Summons, the Supreme Court also had jurisdiction to determine Mr Moore’s other claims raised in the First Cross-Summons because his claims were all part of the one “matter” in the sense explained in Fencott v Muller.

   4. (4)

      Because the Federal Court would not have had jurisdiction under the ADJR Act to determine the matter, s 4(1) of the Cross-vesting Act could not operate to vest jurisdiction in the Supreme Court under that potentially alternative route.

   5. (5)

      The matter, in which jurisdiction was vested in the Supreme Court via s 39B(1) of the Judiciary Act and s 4(1) of the Cross-vesting Act, is a “special federal matter” within the meaning of s 6(1) of the latter Act. Therefore, ss 6(3) and (4) of that Act are also engaged. Consistently with this Court’s decision in Hopkins v Governor-General of Australia [2013] NSWCA 365; (2013) 280 FLR 49, even if the requirements in ss 6(3) and (4) were not fulfilled in the Court below that did not invalidate Chen J’s decision (see 6(9) of the Cross-vesting Act). This Court however can and should ensure that those requirements are met, following the approach in Hopkins.

   6. (6)

      As to the requirement in s 6(3) of the Cross-vesting Act, there are special reasons for the matter to be determined by the Supreme Court because (as will shortly emerge) the claims made by Mr Moore under the First Cross-Summons are baseless, the claims relate to matters arising from the prosecution of charges in a State court and it is in the interests of justice that the claims be dismissed as soon as practicable.

   7. (7)

      Notification should now be given to the Commonwealth and State Attorneys-General as required by s 6(4) of the Cross-vesting Act.

3. [70]

   I turn now to consider whether Mr Moore’s proposed grounds of appeal have sufficient prospects to warrant the grant of leave. The proposed grounds are as follows:

   1. (1)

      His Honour erred in law as Mr Moore was denied procedural fairness.

   2. (2)

      His Honour erred in law as costs cannot be awarded to a party where one party (Mr Moore) has been denied procedural fairness.

   3. (3)

      His Honour erred in law by giving legal advice to the other party which amounted to bias against Mr Moore.

   4. (4)

      His Honour erred in law as his Honour stated that the decision to withdraw the Commonwealth offences was made by the CDPP and not by the Magistrate.

4. [71]

   It is well settled that leave to appeal will ordinarily only be granted where there is an issue of principle, a question of general public importance or where it is reasonably clear that there has been an injustice in the sense of going beyond it being reasonably arguable that the primary judge erred (see, for example, Carolan v AMF Bowling Pty Ltd (t/as Bennetts Green Bowl) [1995] NSWCA 69 and Lee v New South Wales Crime Commission (2012) 224 A Crim R 94; [2012] NSWCA 262 at [12] per Bathurst CJ).

5. [72]

   For the following reasons, none of the proposed grounds of appeal has sufficient prospects to warrant a grant of leave.

6. [73]

   The procedural fairness ground of appeal relates to the filing (or not filing) of a Court Book and a list of authorities. The Registrar in the Common Law Division had directed that the Court books were to be filed by 18 September 2022.

7. [74]

   In July, the CDPP informed Mr Moore that it had been ordered to file and serve the application folder. Mr Moore filed his Court Books, Chronology and Book of Authorities on 4 August 2022. On 9 September the CDPP informed Mr Moore that, as he had filed a court book, it did not propose to file an application book. The CDPP notified the Court of this.

8. [75]

   No unfairness arose from the CDPP not preparing an application folder. The CDPP’s evidence consisted of an affidavit sworn 31 March 2022 by Christina Choi and Exhibit CDC-1. Both of these documents were included in the Court Book which the applicant prepared. Thus Mr Moore was not denied an opportunity to respond to the CDPP’s evidence. He was given an opportunity by the primary judge to object to this material and no objection was made.

9. [76]

   Mr Moore submits that he did not receive the CDPP’s list of authorities, which amounted to a breach of procedural fairness and an “ambush”.

10. [77]

    The CDPP claims that it provided Mr Moore with a copy of its bundle of authorities before the hearing. In any event, Mr Moore did not complain about late, or electronic service of the list of authorities, during the proceedings before the primary judge.

11. [78]

    Mr Moore appears to submit that the ADJR Act was relied upon by the primary judge but that Mr Moore did not have any information or prior knowledge of it.

12. [79]

    It is evident from the transcript that some reference was made by the primary judge to the ADJR Act. Significantly, however, there is no reference to that legislation in the primary judgment. There is no basis for the claim that the legislation played any role in his Honour’s reasoning. Accordingly, there was no procedural unfairness.

13. [80]

    Mr Moore submits that the CDPP failed to comply with its obligations in ss 56(3) and (4) of the Civil Procedure Act 2005 (NSW), namely to comply with directions and orders of the Court and to further the overriding purpose of civil proceedings.

14. [81]

    Consequently, Mr Moore contends that the Court should have exercised its discretion as to costs, given the CDPP’s non-compliance.

15. [82]

    The primary judge’s decision as to costs was made in the exercise of his discretion. Accordingly, Mr Moore must identify an error of the kind identified in House v The King (1936) 55 CLR 499; [1936] HCA 40. No such error has been identified. The proposed ground lacks arguable substance.

16. [83]

    The chambers of Chen J wrote to the CDPP on 21 September 2022 (and included Mr Moore on the email) noting that an affidavit which purported to have an exhibit attached did not contain the exhibit. The tipstaff to Chen J requested that the exhibit be provided to the Court.

17. [84]

    Mr Moore submits that it was the parties’ obligation to ensure that their documents were filed in compliance with the Registrar’s orders, and that it was not the Court’s function to provide administrative assistance and legal services.

18. [85]

    Mr Moore has not presented an arguable case of actual or apprehended bias arising from these matters. Justice Chen’s chambers were simply involved in a routine communication which was directed to facilitating the efficient conduct of the forthcoming hearing. The request to provide the exhibit played no role in the primary judge’s reasoning.

19. [86]

    Mr Moore submits that the Magistrate erred in law as the CDPP had not effectively taken over all of the Commonwealth charges (in particular, the charges pursuant to s 41(1) of the Crimes Act 1914). Accordingly, Mr Moore submits, the prosecution of the s 41 charges remained with Mr Moore. He submits that when the Magistrate formally dismissed the charges concerning s 41 of the Crimes Act 1914, this was a decision of the Magistrate and not the CDPP because Mr Moore claims that the CDPP had not taken over those charges.

20. [87]

    The transcript from the Local Court on 28 January 2022 records the following:

21. [88]

    The letter dated 22 January 2022 from the CDPP to Mr Moore notes:

22. [89]

    It is significant to note that Mr Moore was informed that the CDPP had taken over all the prosecutions instituted by him against the four officers in relation to the Commonwealth charges.

23. [90]

    There are two fundamental difficulties with this proposed ground of appeal. First, contrary to Mr Moore’s summary of argument, it is clear from the CDPP’s letter dated 27 January 2022 that the CDPP had taken over all Commonwealth charges in relation to the four police officers, which necessarily includes the charge relating to s 41. The prosecution of that charge did not remain with Mr Moore.

24. [91]

    Secondly, this ground proceeds on the false premise that the Magistrate’s decision dismissing the charges was a decision which itself was amenable to judicial review, as opposed to the decision of the CDPP to withdraw the charges. Given that the relevant charges were all laid under the Crimes Act 1914, an Act of the Commonwealth, section 79(1) of the Judiciary Act operates to pick up the laws of NSW relating to “procedure, evidence, and the competency of witnesses”, and accordingly the Criminal Procedure Act 1986 (NSW) applies.

25. [92]

    Section 208 of the Criminal Procedure Act provides the following (emphasis added):

26. [93]

    In AB v Director of Public Prosecutions (NSW) [2008] NSWCA 91; (2009) 184 A Crim R 183, in considering whether a deemed dismissal under s 208 amounted to “an order of dismissal” (such that an accused person had a right to a certificate under s 205(2)), Handley AJA (Giles and Campbell JJA agreeing) stated at [10]–[13] (emphasis added):

27. [94]

    Accordingly, no formal order of the Court is required when the prosecutor declines to offer any evidence or withdraws the charges because the legislation operates to deem a dismissal decision to have been made. The proposed ground of appeal lacks sufficient prospects to warrant a grant of leave.

28. [95]

    Having regard to the proposed dismissal of Mr Moore’s application for leave to appeal, costs should follow the event, save that there should be no order as to costs regarding the issue of jurisdiction. As the CDPP accepted, each party should bear their own costs in relation to that issue.

Conclusion

1. [96]

   For all these reasons, I propose that the summons seeking leave to appeal should be dismissed, with costs (save that there should be no order for costs concerning the issue of jurisdiction such that each party should bear their own costs on that issue).

2. [97]

   The CDPP should be directed promptly to notify the Commonwealth Attorney-General and the NSW Attorney-General, if not already notified, pursuant to s 6(4) of the Cross-vesting Act, of these reasons for judgment, the orders and reasons of Chen J at first instance. The Commonwealth Attorney-General and/or the NSW Attorney-General should have liberty to apply within 28 days hereof if either wishes, in relation to the operation of s 6(3) of that Act in these proceedings if either so wishes.