Huynh v Attorney General (NSW)

1. [1]

   BELL CJ: The proceedings before the Court have a long and complex procedural history.

2. [2]

   On 9 June 2015, following a jury trial in the District Court of New South Wales presided over by his Honour, Judge Whitford SC, Mr Huy Huynh (the Applicant) was convicted of an offence of conspiracy to import a commercial quantity of a border-controlled precursor (pseudoephedrine) with the intention that the substance would be used to manufacture a controlled drug, pursuant to ss 11.5(1) and 307.11(1) of the Criminal Code Act 1995 (Cth).

3. [3]

   On 20 November 2015, the Applicant was sentenced to 12 years imprisonment with a non-parole period of 8 years commencing on 1 August 2014 and expiring on 31 July 2022: R v Cranney; R v Huynh [2015] NSWDC 276. Following a successful appeal against sentence in the Court of Criminal Appeal (CCA), the Applicant was resentenced to 12 years imprisonment with a non-parole period of 8 years which commenced on 20 June 2014 and expired on 19 June 2022: Huynh v R [2022] NSWCCA 45.

4. [4]

   On 29 September 2017, the CCA dismissed an appeal lodged by the Applicant together with his alleged co-conspirator, Mr Christopher Cranney, from their convictions: Cranney v R; Huynh v R (2017) 269 A Crim R 449; [2017] NSWCCA 234. Leave to appeal to the High Court of Australia was refused: Huynh v The Queen [2019] HCASL 6.

5. [5]

   Having exhausted other available avenues for appeal, the Applicant then lodged an application for a post-appeal inquiry pursuant to ss 78 and 79 of the Crimes (Appeal and Review) Act 2001 (NSW) (CAR Act). Those sections provide:

6. [6]

   On 13 October 2020, Garling J (the primary judge) dismissed Mr Huynh’s application for a post-appeal inquiry under Pt 7 of the CAR Act: Application of Huy Huynh under Part 7 of the Crimes (Appeal and Review) Act 2001 for an Inquiry [2020] NSWSC 1356. His Honour’s decision did not involve an exercise of judicial power: Varley v Attorney General (NSW) (1987) 8 NSWLR 30 at 48-49; Sinkovich v Attorney General (NSW) (2013) 85 NSWLR 783; [2013] NSWCA 383 at [12]; Patsalis v Attorney General (NSW) (2013) 85 NSWLR 463; [2013] NSWCA 343 at [22]; Lodhi v Attorney General (NSW) (2013) 241 A Crim R 477; [2013] NSWCA 433 at [22]; Buttrose v Attorney General (NSW) (2015) 324 ALR 562; [2015] NSWCA 221 at [4]; GAR v Attorney General (NSW) (No 2) [2017] NSWCA 314 at [140]; Clark v Attorney General (NSW) [2020] NSWCA 70 at [12].

7. [7]

   By way of a summons filed on 18 January 2021, the Applicant commenced proceedings in the Court of Appeal under s 69 of the Supreme Court Act 1970 (NSW) (Supreme Court Act) seeking an order quashing the primary judge’s (non-judicial) decision and a declaration that it was affected by errors of law and jurisdiction. The Applicant filed a Further Amended Summons on 19 August 2021 seeking relief pursuant to either the inherent jurisdiction of the Court, ss 65, 69 or 101 of the Supreme Court Act, s 39(2) of the Judiciary Act 1903 (Cth) (Judiciary Act) or s 5 of the Administrative Decisions (Judicial Review) Act 1977 (Cth) (ADJR Act).

8. [8]

   Although the Attorney General for New South Wales was originally named as the respondent in those proceedings, the Supreme Court of New South Wales and the Attorney-General for the Commonwealth were later joined to the proceedings.

9. [9]

   In the course of determining the Further Amended Summons, a jurisdictional issue emerged concerning whether the post-appeal inquiry procedures in the CAR Act to review convictions for Commonwealth offences were available as laws of the State and, if not, whether they could be “picked up” and applied as surrogate federal laws by way of s 68 of the Judiciary Act.

10. [10]

    On 8 December 2021, a majority of a five judge Court of Appeal bench held that the primary judge’s decision which purported to determine the application lodged by the Applicant under s 78 of the CAR Act was void and of no effect on the basis that an inquiry pursuant to s 79 was not available in respect of a Commonwealth offence: Huynh v Attorney General (NSW) (2021) 107 NSWLR 75; [2021] NSWCA 297 (Huynh (NSW)).

11. [11]

    On appeal, a majority of the High Court held that, by virtue of s 68(1) of the Judiciary Act, ss 78(1) and 79(1)(b) (but not s 79(1)(a)) of the CAR Act are picked up and applied as surrogate federal laws in circumstances where a person is convicted in a New South Wales court of a Commonwealth offence: Attorney-General (Cth) v Huynh (2023) 97 ALJR 298; [2023] HCA 13 (Huynh (HC)). At [77], Kiefel CJ, Gageler and Gleeson JJ (who, with Jagot J, formed the majority) concluded that:

12. [12]

    It followed that the (non-judicial) decision of Garling J to dismiss Mr Huynh’s application for a post-appeal inquiry was made under a law of the Commonwealth, namely s 68(1) of the Judiciary Act. The significance of this point is explored later in these reasons.

13. [13]

    The High Court made orders on 10 May 2023 remitting the matter to this Court for the hearing and determination of the substance of the application for judicial review in accordance with its judgment.

14. [14]

    On 14 June 2023, the Applicant filed an Amended Summons seeking orders that the decision of the primary judge be quashed, a declaration that the primary judge’s decision is affected by an error of jurisdiction and law and that the matter, pursuant to s 78(1)(b) of the CAR Act, be referred to the CCA. No relief continued to be sought under the ADJR Act. The Amended Summons sets out two Grounds of Review:

15. [15]

    On the remitter, a threshold jurisdictional issue has arisen in this Court, namely whether the remitted judicial review proceedings involve a “special federal matter” within the meaning of s 3 of the Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth) (Cross-vesting Act), such that they must be transferred to the Federal Court of Australia unless, pursuant to s 6(3) of the Cross-vesting Act, there are “special reasons” to make an order that the proceedings be determined by this Court.

16. [16]

    The Registrar of the Court of Appeal ordered that this issue be determined prior to any consideration of the merits of the judicial review application. That was a logical and sensible course given the possibility that the proceedings may have needed to be transferred to the Federal Court.

17. [17]

    All parties to the proceedings, namely the Applicant, the Attorney-General (Cth) and the Attorney General (NSW), contended that the proceedings did involve a “special federal matter”, but each also contended that special reasons existed justifying the retention of proceedings in this Court rather than being referred to the Federal Court pursuant to s 6(1) of the Cross-vesting Act. Mr Tang of counsel appeared as amicus to advance any submissions to the Court for a contrary outcome in the absence of a party contradictor.

18. [18]

    It is necessary first for the Court to satisfy itself that the parties’ joint position, namely that the judicial review application is a “special federal matter”, is correct. For the following reasons, I am satisfied that it is.

Special federal matter

1. [19]

   A “special federal matter” is, relevantly for present purposes, defined by s 3(1) of the Cross-vesting Act as including:

2. [20]

   The Attorney-General (Cth) submitted that an application for judicial review of the primary judge’s decision is a “special federal matter” falling within the scope of either s 3(1)(c) or (e) of the Cross-vesting Act. It may be noted that s 3(1)(c) employs the language of “arising under” while s 3(1)(e) speaks of a matter “within” the original jurisdiction of the Federal Court.

3. [21]

   Two issues are raised by the definition: whether the matter falls within one of the categories relied upon and, if so, whether the Supreme Court would only have jurisdiction under the Cross-Vesting Act. The first issue can readily be addressed by reference to s 3(1)(e). The original jurisdiction of the Federal Court under s 39B(1A) of the Judiciary Act includes:

4. [22]

   The question then is whether the Supreme Court would have jurisdiction only under the Cross-Vesting Act. The parties all accepted, and the contradictor did not dispute, that subject to the ADJR Act, the Supreme Court would have jurisdiction in this matter by virtue of s 39(2) of the Judiciary Act (in circumstances where the exclusions in s 38 of that Act did not apply). Such jurisdiction will, however, be removed from the Supreme Court in the event that s 9(1) of the ADJR Act is engaged. That section provides:

5. [23]

   Section 9(1) will be engaged if the decision of Garling J was “a decision to which the [ADJR Act] applies”, namely a decision of an administrative character made under an enactment: s 3 of the ADJR Act.

6. [24]

   Garling J’s decision was plainly made under an enactment, namely the Judiciary Act. This was the burden of the High Court’s decision in Huynh (HC). As put in the submissions of the Attorney General (NSW):

7. [25]

   That leaves the question whether Garling J’s decision was of an “administrative character” within the meaning of the ADJR Act.

8. [26]

   As a matter of State law, Garling J’s decision was not a judicial decision: see [6] above. That points strongly towards it being of an “administrative character”, although it is not determinative cf., for example, Eastman v Besanko (2010) 244 FLR 262; [2010] ACTCA 15 (Eastman) at [90] (Dowsett J).

9. [27]

   In Huynh (HC), Jagot J at [265] referred to the functions of the Supreme Court under ss 78 and 79 of the CAR Act as “administrative”; see also Gordon and Steward JJ at [132]. In Huynh (NSW), Basten JA (with whom Bathurst CJ and Gleeson JA agreed) characterised the functions exercised by Garling J as administrative in character (see [39]-[47]). Leeming JA (at [149]) and Payne JA (at [265]) were of the same view. The characterisation of the functions performed by Garling J under s 78 of the CAR Act by various members of this Court in Huynh (NSW) were not called into question by the High Court nor suggested in submissions in the present case to be wrong, albeit they were not in terms made for the purposes of determining whether or not the decision of Garling J was one which would fall within the meaning of a decision of an administrative character for the purposes of the ADJR Act.

10. [28]

    Reference was made, in the course of argument, to the decision of the Queensland Court of Appeal in Holzinger v Attorney-General (Qld) (2020) 5 QR 314; [2020] QCA 165 (Holzinger) where it was held that the Attorney-General’s refusal to refer whole or part of the Applicant’s case to the Court of Appeal was not a decision of an administrative character made under an enactment: see especially at [52]. Holzinger was followed by the Full Court of the Federal Court in Attorney-General (Cth) v Ogawa (2020) 281 FCR 1; [2020] FCAFC 180.

11. [29]

    Holzinger may readily be distinguished from the present case for a number of reasons. First, it concerned the actions of the Attorney General which were regarded at [50] as analogous to a:

12. [30]

    Second, it was noted at [52] that:

13. [31]

    Thirdly, the decision to refer or not to refer the matter to the CCA had “the capacity to affect legal rights” (Griffith University v Tang (2005) 221 CLR 99; [2005] HCA 7 at [80]) insofar as it could ultimately result, if a reference were made and an appeal were successful, in the quashing of Mr Huynh’s conviction; see also in this context, Eastman at [93] (Dowsett J). Moreover, as Mr Horan KC for the Attorney-General (Cth) submitted, the decisions within State (as opposed to federal) jurisdiction referred to in [6] above necessarily contemplated the affectation of at least procedural rights in the context of an application under ss 78 and 79 of the CAR Act.

14. [32]

    Accepting that the various references in Huynh (NSW) to the administrative nature of the task undertaken by Garling J noted at [27] above were not made in the context of the ADJR Act, they nonetheless lend strong support to the conclusion that Garling J’s decision was one of an administrative character made under an enactment, so as to warrant the description of a “decision to which this Act applies” within the meaning of s 9(2) of the ADJR Act. The same conclusion is supported by the decision of Logan J in Martens v The Commonwealth (2009) 174 FCR 114; [2009] FCA 207 at [25]. In my view, that is the correct characterisation.

15. [33]

    It follows that, irrespective of the fact that Mr Huynh no longer apparently seeks relief pursuant to the ADJR Act (as he did prior to the most recent amendments to his Summons), s 9(1) of that Act operates to deprive this Court of jurisdiction under s 39(2) of the Judiciary Act with the consequence that, in the language of s 3(1) of the Cross-vesting Act, the matter is one “in respect of which this Court would not, apart from the Cross-vesting Act, have jurisdiction”: see ML v Australian Securities and Investments Commission (2013) 276 FLR 14; [2013] NSWCA 109 at [5], [12]-[13]. As such, the matter is a “special federal matter” within the meaning of that Act.

16. [34]

    Notwithstanding the denial of jurisdiction by s 9 of the ADJR Act, as the Note to s 9(1) states, that subsection is subject to the Cross-vesting Act, a later Act in time. (The Note forms part of the Act by virtue of s 13 of the Acts Interpretation Act 1901 (Cth)).

17. [35]

    The Cross-vesting Act, by s 4, had the effect of reinvesting the Supreme Court of NSW with (cross-vested) jurisdiction so as to be able to entertain an application for judicial review, whether under the ADJR Act or by way of certiorari or mandamus; see also Hopkins v Governor-General of Australia (2013) 280 FLR 49; [2013] NSWCA 365 (Hopkins) at [24]-[25]; Anglo American Investments Pty Ltd v Deputy Commissioner of Taxation (2017) 347 ALR 134; [2017] NSWCA 17 at [75]. Section 4(1) of the Cross-vesting Act provides that:

18. [36]

    The jurisdiction so reinvested and conferred upon this Court by s 4(1) of the Cross-vesting Act is, however, subject to the “special federal matters” regime set out in s 6 of the Cross-vesting Act. That section relevantly provides that:

19. [37]

    By this regrettably but unavoidably complex route, the matter is a “special federal matter” within the meaning of the Cross-vesting Act such that special reasons must be identified for it not to be transferred to the Federal Court.

20. [38]

    If, contrary to my view but by analogy with Holzinger and Eastman, the decision of Garling J was not of “an administrative character” within the meaning of the definition of a “decision to which this Act applies” in the ADJR Act, that Act (including s 9) would not apply and no question of a special federal matter would arise nor would any question of transfer to the Federal Court, subject to special reasons pointing away from this course.

Special reasons for the proceedings to be dealt with by this Court

1. [39]

   Neither the High Court nor any intermediate appellate court has provided any authoritative guidance as to the construction of the phrase “special reasons” in the specific context of s 6(3) of the Cross-vesting Act. Cognate expressions have, however, been considered. Thus, in relation to s 13A(3A) of the Sentencing Act 1989 (NSW) for example, in Baker v The Queen (2004) 223 CLR 513; [2004] HCA 45 at [13], Gleeson CJ reasoned that:

2. [40]

   Callinan J, in the same decision, said the following:

3. [41]

   “Special reasons” are not synonymous with “exceptional circumstances” although the existence of “exceptional circumstances” would no doubt satisfy a requirement for there to be “special reasons”. Moreover s 6(3) of the Cross-vesting Act requires that “special reasons” are considered “in the particular circumstances of the proceeding”. That is not to say that they must be unique, but they will take their character as “special” from the proceeding.

4. [42]

   The meaning of “special reasons” in the context of s 6(3) of the Cross-vesting Act has been considered in a number of first instance decisions of this Court. In Henry v Hancock [2016] NSWSC 71 at [60], Brereton J (as his Honour then was) said:

5. [43]

   Ward CJ in Eq (as her Honour then was) recognised that issues of costs and delay are not purely matters of convenience to the parties and can amount to special reasons: Montgomery v Porter [2019] NSWSC 1524 at [60], [65], see also Jin Niu Investments Pty Ltd v Wang [2019] NSWSC 1697 at [26]-[32].

6. [44]

   In Sallway (in their capacity as liquidators of MB Australia Pty Ltd) v Citadel Group Properties Pty Ltd [2021] NSWSC 709 at [20] (Sallway), Hammerschlag J (as his Honour then was) observed that:

7. [45]

   There are a number of special reasons why this Court should order that the proceeding be determined in this jurisdiction pursuant to s 6(3) of the Cross-vesting Act.

8. [46]

   First, keeping the proceedings in the Court of Appeal is consistent with the Commonwealth’s legislative scheme for criminal procedure which favours territorial uniformity, rather than national uniformity in respect of Commonwealth offences. Reference may be made in this regard to the observations of Gleeson CJ in R v Gee (2003) 212 CLR 230; [2003] HCA 12 at [7].

9. [47]

   Second, the proceedings concern a State law, albeit one picked up and applied as a surrogate federal law. The relevant State law is one which confers functions on a State Supreme Court judge, albeit acting persona designata, with respect to the review of a conviction entered in a State court (albeit one exercising federal jurisdiction): Moore v Commonwealth Director of Public Prosecutions [2023] NSWCA 153 at [69(6)]. That review, moreover, is to be conducted in the CCA if the matter is referred: compare Sallway at [20] where emphasis was placed on the need for consideration of a question concerning the Real Property Act 1900 (NSW) as supplying a special reason for the retention of the special federal matter in the Supreme Court of NSW.

10. [48]

    Third, even though ss 78 and 79 of the CAR Act were picked up as surrogate federal law, Garling J was not acting as an officer of the Commonwealth in discharging his function pursuant to that surrogate federal law: R v Murray and Cormie (1916) 22 CLR 437 at 452; [1916] HCA 58; see also, O’Donoghue v Ireland (2008) 234 CLR 599; [2008] HCA 14 at [32].

11. [49]

    Fourth, the particular proceedings have a lengthy history within this Court and, for that reason, it may be expected that they will be able to be dealt with more promptly because of that familiarity than if they were transferred to the Federal Court which has no familiarity with the particular case and its history. There is also the fact that Mr Huynh is self-represented. This is not a matter of convenience so much as a consideration that he has familiarity with this Court’s practice and procedure which it may be expected will assist in facilitating the expeditious resolution of his case.

12. [50]

    Fifth, it was argued that review of a decision made under Pt 7 of the CAR Act is not a class of proceedings which falls within the specialist expertise of the Federal Court. Whilst this is correct, the preferable way of expressing this argument is to note that members of the Common Law Division of this Court and of the Court of Appeal have practical familiarity with both Pt 7 of the CAR Act and that Act more generally in a way in which judges of the Federal Court do not, both in relation to Pt 7 and criminal matters more generally, noting the extremely limited criminal jurisdiction conferred on, still less exercised in, that Court.

13. [51]

    It should be noted that the Attorney-General (Cth) submitted that a further reason for retaining the proceedings in the Supreme Court of NSW was that the underlying judicial review proceedings lacked any real prospects of success such that they should be determined as promptly as possible by this Court, an approach which was endorsed in Hopkins at [27]. In circumstances where, by order of the Registrar of the Court of Appeal, the hearing before this Court was confined to the question of jurisdiction and the underlying merits of the application for judicial review would not arise unless and until this Court determined that special reasons existed for not transferring the proceedings, it was premature and would have been inappropriate to engage with the merits of the underlying application for judicial review in the present case.

14. [52]

    Mr Tang submitted, somewhat faintly, that there were no special reasons for the judicial review proceedings to be determined by this Court but did not engage with the arguments strongly connecting the matter to New South Wales by reason of its history and the underlying nature of the application.

15. [53]

    Notwithstanding the general rule to which regard must be had, namely that special federal matters should be heard by the Federal Court, the special reasons advanced on behalf of the Attorney-General (Cth) and articulated above are cogent and point to the retention of proceedings in this Court pursuant to s 6(3) of the Cross Vesting Act.

Orders

1. [54]

   The Court should order that pursuant to s 6(3) of the Cross-vesting Act, the application for judicial review should be determined by this Court. The proceedings should be listed before the Registrar for the making of directions for written submissions in relation to the application and the setting of a further date for its hearing if the parties do not otherwise consent to the application being determined on the papers.

2. [55]

   KIRK JA: I agree with Bell CJ.

3. [56]

   SIMPSON AJA: I have read in draft the judgment of the Chief Justice. I agree with the orders proposed by his Honour and his reasons therefor.