Li v Attorney General for New South Wales

1. [1]

   BASTEN JA: On 30 May 2011 the applicant, Patrick Lam Li, entered a plea of guilty to a charge of supplying a large commercial quantity of a prohibited drug known as MDP2P. On 10 August 2012 he was sentenced to imprisonment for 19 years 6 months, including a non-parole period of 12 years 3 months to date from 18 March 2009 and to expire on 17 June 2021. The balance of the term was thus 7 years 3 months. On 26 February 2014 the Court of Criminal Appeal granted him leave to appeal against the severity of his sentence, but dismissed the appeal.

2. [2]

   As the High Court held in Grierson v The King, [1] when the Court of Criminal Appeal “has heard an appeal on its merits and given its decision the appeal cannot be reopened.” [2] There has, however, long been a power to conduct an inquiry into a conviction or sentence, a power which pre-dated the Criminal Appeal Act 1912 (NSW). [3] That power is now found in Pt 7 of the Crimes (Appeal and Review) Act 2001 (NSW) (“Appeal and Review Act”).

3. [3]

   On 29 January 2018 the applicant filed an application pursuant to Pt 7 of the Appeal and Review Act seeking an inquiry to be conducted by a judge of the Supreme Court with respect to his sentence. The application was referred to Harrison J for consideration. In a decision handed down on 28 May 2018 Harrison J dismissed the application. There is no appeal from such a decision, but the applicant filed a summons on 13 September 2018 seeking judicial review of the decision pursuant to s 69 of the Supreme Court Act 1970 (NSW).

4. [4]

   The application for judicial review was heard by this Court on 31 January 2019, at which time the applicant appeared in person. The active respondent was the Attorney General (NSW), whose position with respect to the merit of the application will be discussed below. In accordance with the approach adopted in Sinkovich, the Supreme Court of New South Wales, as the relevant statutory decision-maker, was joined as the second respondent to the summons for judicial review. It entered a submitting appearance. [4] There is no need to consider whether it was necessary to join the Court as a party to proceedings in the Court, nor whether such a course is indeed appropriate.

5. [5]

   Proceedings for judicial review are required to be commenced within three months of the date of the decision the subject of the review application: Uniform Civil Procedure Rules 2005 (NSW), r 59.10(1). The present application was some two weeks out of time, but no objection being taken by the Attorney, it is appropriate to grant an extension of time within which to commence proceedings up to and including the date on which the summons was filed, namely 13 September 2018.

6. [6]

   For the reasons set out below, I would dismiss the summons.

Issues on application for judicial review

1. [7]

   The applicant, who is in custody, and for whom English is not his first language, understandably had some difficulty in formulating the basis of his application for judicial review in legal terminology. The clear formulation of a legal ground on which to grant review is nevertheless a matter of some importance. Although the decision under review is not a judgment, the decision was uploaded to Caselaw and is identified as Li v Attorney General for New South Wales. [5] Inaccurately, but unsurprisingly, the applicant referred to it as a judgment. The substance of the applicant’s case may be discerned from the following paragraphs in his application, which was in the form of a submission:

2. [8]

   The key concern is the applicant’s appreciation that the reasons of the judge for rejecting his application were an edited version of the submissions of counsel for the Attorney, filed on 9 March 2018. It may readily be understood that where, in adversary proceedings, a judicial officer simply adopts the submissions of one party (particularly in circumstances where that is the respondent) without expressly addressing the contrary position taken by the moving party there is a very real risk that an applicant would infer that the judge had failed to give independent and impartial consideration to the case presented by the applicant.

3. [9]

   However, it is less easy to formulate the correct legal basis on which a challenge to the validity of such a decision could be mounted. For the purpose of obtaining relief which would have the effect of declaring or setting aside the decision as invalid, it was necessary for the applicant to establish that the decision was affected by either jurisdictional error or an error of law appearing on the face of the record (which will include the reasons for decision).

4. [10]

   Based on the submissions of both parties, both written and oral, in this Court, the potentially available grounds may be formulated as follows:

5. [11]

   Before addressing these matters, it is convenient to set out the statutory framework within which the decision arose. However, it should be noted that the judge himself addressed the statutory framework and there is no suggestion that his analysis of the law involved any error.

Statutory scheme for inquiry

1. [12]

   Part 7 of the Appeal and Review Act allows for review of convictions and sentences either by way of a petition to the Governor (Div 2) or by way of application to the Supreme Court (Div 3). Most applications under Pt 7 involve the latter approach, which was that adopted by the applicant. The key provisions for present purposes are the following:

2. [13]

   The present matter was concerned solely with the sentencing of the applicant. The phrase “any mitigating circumstances” in relation to a sentence is awkward language, the scope of which may be unclear. In Sinkovich an issue arose as to the proper scope of an application because the judge had adopted a constrained approach to the matters to be addressed, concluding that they did not extend to alleged errors of law. [6] That view was rejected, in part on the basis that s 74(2) provided that “[i]n this Part, a reference to a review of, or an inquiry into … a … sentence includes a reference to a review of, or an inquiry into, … any aspect of the proceedings giving rise to the … sentence.” There was no suggestion in the present case that the matters which the applicant sought to raise with respect to his sentencing did not fall within the scope of such an inquiry.

3. [14]

   Section 79(1) refers to the steps which the Supreme Court may take “[a]fter considering an application under section 78”. However, the Court may only direct an inquiry into the sentence “if it appears” that the matters identified in s 79(2) are satisfied. Reading that language in context, it is clear that the state of satisfaction must be achieved by the Chief Justice or the judge authorised by the Chief Justice to consider the application. [7] Importantly, the power to direct an inquiry depends upon the judge considering the application being affirmatively satisfied as to the matters set out in s 79(2). The judge proceeded on that basis. It follows that the first manner in which the error was identified above, namely that the judge had not in fact formed the necessary opinion to dismiss the application, was not an available ground. The judge was required to dismiss the application unless satisfied as to the relevant criterion.

4. [15]

   The relevant criterion provides a low hurdle for the power to direct an inquiry, namely satisfaction, relevantly for an inquiry into a sentence, that “there is a doubt or question as to … any mitigating circumstances in the case”.

5. [16]

   It is clear that consideration of an application for an inquiry does not involve an inter partes proceeding. While s 79(4) states that the proceedings under s 79 “are not judicial proceedings”, it is not entirely clear why the consideration of an application is described as a proceeding at all. Clearly it is not intended to involve a hearing, nor does it involve “parties” in the ordinary sense in which that word is used in relation to judicial or quasi-judicial matters. Absent s 79(4), it might have been unclear whether the judge should accept submissions from the prosecuting authority; however, the judge is expressly empowered to consider “written submissions made by the Crown”, as occurred in the present case.

6. [17]

   The dismissal of the application did not resolve any substantive legal entitlement of the applicant; it remained (and remains) open to the applicant to file a further application at any time. That fact casts doubt upon the availability in judicial review proceedings of an order setting aside the refusal of the application.

7. [18]

   The practical reason for pursuing the proceeding appeared to be that if the decision were left on foot, and a repeat application made, it might result in a summary dismissal on the basis that it had “previously been dealt with under this Part”, within the terms of s 79(3)(a)(ii). However, no relevant reviewable error having been established, it is unnecessary to deal with the availability of relief, and the appropriate form of relief, in the event that reviewable errors were established.

(a) failure to form relevant opinion

1. [19]

   There are two answers to the proposition that the judge, in making a decision on the application, failed to form the necessary opinion as to whether there was a doubt or question as to any mitigating circumstances in relation to the sentence. First, the judge correctly set out the statutory criterion, absent which the power to order an inquiry was not engaged. The judge also correctly noted that it was a discretionary power. [8] He further stated:

2. [20]

   The judge identified the issues raised by the applicant in the following terms:

3. [21]

   He then dealt with each of the issues in turn. With respect to the first matter, he concluded that Mr Li appeared to have conceded that he had accepted, and agreed with, the content of the statement of agreed facts. [9] In then dealing with the second matter (concerning the findings of the sentencing judge) he made express findings in two passages formulated in terms of the statutory question. The latter passage read as follows:

4. [22]

   Finally, the judge dealt with the issue of parity with respect to the sentence imposed on the co-offender, concluding:

5. [23]

   Putting to one side the challenge to the basis on which the opinion was formed, there is no reason to conclude that the judge did not in fact form the views expressed in these paragraphs. Accordingly, the first way in which the applicant sought to put his case should be rejected as unfounded.

6. [24]

   This ground must be rejected for another reason. Broadly speaking, the powers of this Court with respect to judicial review are only engaged where a decision-maker has erred in law in reaching a particular conclusion. However, assuming that the judge applied his mind to the correct question, and in doing so considered all relevant material and did not take into account irrelevant material, his failure to achieve an affirmative satisfaction as to the existence of factual error on the part of the sentencing judge will not reveal error of law. [10]

(b) failure to consider submissions in reply

1. [25]

   The factual basis for the complaint that the applicant’s submissions in reply were not considered depended upon the proposition that the judge adopted, almost verbatim, submissions on behalf of the Attorney filed on 9 March 2018.

2. [26]

   The factual premise may be accepted, in the sense that the judge did adopt the Attorney’s submissions. That was demonstrated by a document indicating which portions of the judgment were taken unamended from the Attorney’s submissions, the portions of the submissions which were excluded and the amendments which were made to other parts of the submissions.

3. [27]

   How the judge came to adopt that course is not known. However, it is clear that at least stylistic amendments were made to every paragraph of the submissions, some paragraphs were omitted and other brief passages were added.

4. [28]

   The present question is not whether this course of decision-making was desirable, nor whether it demonstrated a failure to give genuine and independent consideration to the issues raised by the applicant in his application and submissions in support of his application. Rather, the limited question for the purposes of this ground is whether the judge failed to consider the submissions filed in reply after the date of the Attorney’s submissions. To establish that factual premise, the applicant needed to address two matters. The first was the inclusion of the following passage in the reasons of the judge:

5. [29]

   The second matter to be addressed by the applicant is the need to identify aspects of the reply (beyond the reliance on the concession in par 10 set out above) which demanded explicit reference in the reasons for decision. The reply of 30 April was in two parts. The first constituted a response to the Attorney’s submissions; the second part was described as a “Statement Part 2 to Judicial Officer”. The first part introduced no new material: it addressed the paragraphs in the Attorney’s submissions either by referring back to the application or by referring to further submissions in the Part 2 statement. Accordingly, it is sufficient to address the Part 2 statement. The Part 2 statement covered some 20 pages and was carefully structured by way of an introduction, four substantive topics and a conclusion. The four substantive topics were headed:

   1. (1)

      procedural fairness;

   2. (2)

      legal argument;

   3. (3)

      proof beyond reasonable doubt, and

   4. (4)

      error in applying the parity principle.

6. [30]

   On 28 May 2018, being the day that Harrison J handed down his decision, the Attorney filed a response to the applicant’s reply. It was brief (four pages) and it is not clear whether the judge received it before handing down his decision. If he did not that is not a matter about which the applicant can complain. In fact the Attorney’s response of 28 May focused almost entirely upon the question of procedural unfairness, providing reasons for rejecting the complaint.

7. [31]

   Under the heading “Procedural fairness” the applicant raised a question as to the correctness of the inferences drawn by the sentencing judge as to his role in the handling of the drugs which had been found in a warehouse in Castle Hill. It was in this passage that the applicant acknowledged that he did not dispute the content of the statement of agreed facts relied upon at his sentencing in this State. Nevertheless, he asserted that his “defence” had been compromised because of his inadequate communication in English.

8. [32]

   That was the same issue which had been raised in his original application and was dealt with by Harrison J at [23]-[28] of his reasons for decision. It is not necessary to set those paragraphs out: it suffices to note that no new matter was raised with respect to that issue in the submissions of 30 April 2018.

9. [33]

   The second substantive matter raised in the applicant’s 30 April submission, under the heading “Legal argument”, involved a comparison of statements made by the County Court judge in Victoria (where the applicant was sentenced for a related offence) and the inferences drawn by the sentencing judge in New South Wales. The challenge was directed to the finding of the sentencing judge that the applicant’s “role and level of participation was greater than that of Mr Koh, although not substantially so.” [11] The sentencing judge had continued: [12]

10. [34]

    There was a connection between the Victorian and the New South Wales proceedings. The applicant was charged in Victoria with the offence of trafficking in a commercial quantity of MDP2P, being some 385kg of liquid MDP2P discovered in a van driven by his co-offender, Mr Koh. The Victorian activity appeared to be part of the same drug supply operation, involving part of the large quantity of the drug delivered to a factory unit at Castle Hill. The Victorian proceedings, which commenced in July 2008, involved an anticipated trial in the course of which the prosecution sought to call evidence of the steps taken in New South Wales prior to the arrest of the applicant and Mr Koh in Geelong, Victoria. There was an obvious potential for prejudice in that this evidence would reveal to the jury the very large quantity of the drug discovered in Sydney, but not the subject of charges in Victoria. In addressing both the second issue identified in the 30 April submission and the third issue (under the heading “Proof beyond reasonable doubt”) the applicant extracted passages from the hearing on the voir dire in Victoria. None of this material, however, had any bearing on the inferences available to the sentencing judge in New South Wales, based on the statement of agreed facts.

11. [35]

    These submissions fed into the fourth issue (relating to the question of parity) which the applicant himself described in his 30 April submission as “the critical point.” [13] The substance of the complaint appears to have been twofold: first, the sentencing judge in New South Wales relied upon material which had been excluded from the Victorian trial proceeding, and, secondly, the prosecutor in Victoria had accepted that Mr Koh and the applicant had the same level of responsibility for the offending.

12. [36]

    Unsurprisingly, given it was the critical focus of the applicant’s complaints about his sentencing, these issues had been squarely raised in his original application. They were addressed in the judge’s reasons for decision at [40]-[44]. The applicant’s submissions of 29 January 2018 contained much of the same material, together with a more extensive discussion, covering some 60 pages. There was, in substance, nothing new in the submission of 30 April, other, perhaps, than the express concession which was quoted by the judge in his reasons.

13. [37]

    There is, accordingly, no basis for considering that the judge failed to consider the applicant’s submissions of 30 April. If he had failed to consider them, it would have been immaterial, because they contained nothing new. Accordingly, the second way in which the complaint was formulated must be rejected.

(c) failure to address basis of application

1. [38]

   The third way in which the argument appeared to be raised on the judicial review hearing was that, by simply adopting as his reasons for decision the submissions of the Attorney, the judge failed to address significant aspects of the applicant’s application, because the Attorney had not addressed those matters.

2. [39]

   It may be accepted that, if the factual premise were made good, the conclusion would follow and there would have been a constructive failure on the part of the judge to address the application before him. However, the difficulty lies in the factual premise; it was far from clear from the submissions for the applicant in this Court that there were significant issues raised in his application for an inquiry which were not addressed by the Attorney and thus not addressed by the judge. The written submissions in this Court did not identify any specific issue which had been raised in the 29 January submission by the applicant and not addressed by the Attorney’s submission of 9 March. The oral submissions did not expand on this point. Accordingly, that aspect of this ground must be rejected.

3. [40]

   There remains a separate point, which may well have been the intended gravamen of this ground, namely that by simply adopting the Attorney’s responses the judge did not engage with the complaints as formulated by the applicant and therefore failed to address the application. In considering this formulation, it is appropriate to address the submissions for the Attorney in this Court which acknowledged that “[t]he extent of the unattributed adoption of the Attorney General’s written submissions demonstrates a constructive failure to exercise jurisdiction.” [14]

4. [41]

   In support of that conclusion, the Attorney accepted that the reasons at [1]-[20] set out the legal and factual background to the application and were uncontroversial. Under the heading “Submissions” the judge then adopted, with stylistic changes, the following statement from the Attorney’s 9 March submissions:

5. [42]

   As further noted, it is not apparent that any substantive argument was omitted by this paraphrasing of the applicant’s case. Indeed, the documents provided by the applicant for the purpose of his application for an inquiry, while allowing the reader to infer the underlying thoughts, were obscure both in their choice of language and in the grammatical structure of the sentences. It would not have advanced the clarity of the reasons of the judge in determining the application to have quoted verbatim from the applicant’s own documents, nor would it have assisted had the judge sought to reformulate the issues in different terms to those adopted by the Attorney.

6. [43]

   It is not the role of a court exercising judicial review to reconsider the merits of the decision under review. Nevertheless, if the applicant for judicial review is to succeed in demonstrating that the original decision-maker has either failed to address the applicant’s arguments or has failed to bring an independent and impartial mind to bear in rejecting the arguments, it may be necessary for the applicant to demonstrate at least one material factor which has been squarely raised before the decision-maker and, at least arguably, remains subject to the reasonable possibility of acceptance, despite the contrary arguments adopted by the decision-maker. However, applying that approach, it is not possible to discern a legitimate basis for an inquiry into the applicant’s sentence raised by the application and the submissions in support thereof which was not identified by the Attorney in his submissions. On one view, the Attorney’s 9 March submissions articulated the grounds of the application with admirable fairness, if not creativity, in the interests of the applicant. Nevertheless, the Attorney’s responses were entirely persuasive. Nothing put by the applicant in his reply submission of 30 April 2018, or in his application to this Court, or in oral submissions on the hearing of these proceedings, demonstrated any reasonably arguable basis for doubting the correctness of the decision.

7. [44]

   In his written submissions, the Attorney referred to a number of cases in which appellate courts have held that the adoption by a judge of the submissions of one party might involve an inadequate exercise of jurisdiction. Three circumstances may be identified.

8. [45]

   In the first, where the reasons set out the submissions presented by both parties, and then simply express a preference for one set of submissions over the other, there will be a failure on the part of the judge to give reasons for his or her choice. So much was held in Commissioner for Railways for the State of Queensland v Peters [15] and Fyntray Constructions Pty Ltd v Macind Drainage & Hydraulic Services Pty Ltd. [16]

9. [46]

   A second situation may arise where the judge adopts one party’s submissions almost in their entirety, whilst totalling ignoring the submissions of the other side. [17] In substance, the result is the same as that in the first category of cases; there is an implicit preference for one set of submissions over the other without giving reasons for the choice.

10. [47]

    The third category also falls within the same pattern of error, but in form the emphasis is upon the reproduction of the submissions of one party, without attribution, and again without reference to the contending submissions of the other party. [18] As noted above, the Attorney identified as the basis of error the extent of the “unattributed adoption” of one party’s submissions. However, the lack of attribution is not necessarily a critical factor; although it may indicate a failure to acknowledge what is being done, it will usually be immediately apparent to each party that one party’s submissions have been adopted.

11. [48]

    These decisions are of limited assistance for two reasons. One is structural: there is an important difference between the scope of the obligation to give reasons imposed on judges, especially in superior courts, as compared with administrative decision-makers. Indeed, there is no general law obligation on administrative decision-makers to give reasons. [19] The second reason is substantive: the cases involved an adversary hearing in which the contesting parties had each articulated clear and rational submissions in support of their respective positions. These are not separate factors, but both apply in the present circumstances. That is, there was no adversary proceeding and no conflicting evidence and submissions. Rather, there was an application for an inquiry in the course of which the Attorney General articulated both the arguments of the applicant and the responses to those arguments. Had he not done so, the application could well have been dismissed on the basis that the applicant had articulated no satisfactory ground for doubting or questioning the sentence imposed in the District Court.

12. [49]

    A similar issue arose with respect to the reasons of the Administrative Appeals Tribunal in LVR (WA) Pty Ltd v Administrative Appeals Tribunal. [20] The reasoning of the Full Court of the Federal Court appears from the following passage:

13. [50]

    The Full Court expressed considerable concern that the issue of unattributed copying had not been explained to the primary judge (hearing the appeal from the Tribunal) nor, initially, to the Full Court. The Court also noted that it was not making “a quantitative rather than a qualitative assessment of the extent of the copying”. [21] As appeared from the opening passages in the judgment of the Full Court set out above, the case was determined on the basis that the Court was not satisfied that a significant affidavit, tendered by the applicant, had been read and taken into account by the Tribunal.

14. [51]

    The determinative reasoning in LVR was expressed in the following passage:

15. [52]

    Critically for present purposes, what has not been demonstrated by the applicant is that any material matters were ignored or not taken into account by the judge determining the application. There was no factual or legal dispute to be resolved; the only question was whether the judge was satisfied that a doubt or question had arisen as to the process of sentencing or the result of the sentencing carried out in the District Court. (Perhaps surprisingly, little weight was placed in the written submissions upon the fact that there had been an appeal to the Court of Criminal Appeal, conducted by experienced senior counsel, which had been dismissed.) There was no clear demonstration of evidence, favourable to the applicant, which might now be considered and which had not been available to be considered by the sentencing judge.

16. [53]

    For the reasons already explained, there was no clear and credible basis for challenging the sentencing process raised in the application or the applicant’s submissions in support of his application. Accordingly, there were no particular submissions to be considered and rejected. Rather, the application was addressed by reference to issues identified by the Attorney General’s submission which, in turn, indicated the basis on which they could properly be rejected. The judge was entitled to accept that submission. In the particular circumstances of the case, it cannot be inferred that the judge did not apply an impartial and independent mind to the issues raised by the application. Accordingly, despite the concession made by the Attorney in this Court, the third basis of review must be rejected.

(d) adequacy of reasons

1. [54]

   As the foregoing discussion demonstrates, the judge gave reasons for his decision. The reasons were not, in their terms, inadequate. Had there been competing submissions between which the judge was required to choose, it might have been correct to say that the adoption of the submissions of one party, without reference to the submissions of the other and without explanation as to why the choice had been made, might reveal error. It would then be necessary to consider whether that error was an error of law or a constructive failure to exercise jurisdiction. Those questions do not arise in the present case because the premise (that there were competing submissions) was not established.

(e) justice not seen to be done

1. [55]

   There was a reference in the submissions filed for the Attorney to authority which suggested, as a test of invalidity in respect of judicial decision-making, the statement that “justice had not been seen to be done”. [22] This language, used in dealing with a test of the adequacy of reasons, was taken from the reasons of Gray J in Sun Alliance Insurance Ltd v Massoud: [23]

2. [56]

   It is clear that in both C v B and in Sun Alliance the phrase “justice is not seen to have been done” was intended to be a test of the adequacy of reasons. Two years before the decision in Sun Alliance, McHugh JA in Soulemezis v Dudley (Holdings) Pty Ltd [24] had identified the issue in that case as “whether the failure to explain the basis of the crucial finding of fact involves a breach of the principle that justice must not only be done but must be seen to be done.”

3. [57]

   It is doubtful that this aphorism was ever intended to be a test of the validity of judicial, let alone administrative, decision-making. However, because in Sun Alliance there was a suggestion that the need for justice to be seen to be done provided a separate free-standing test of invalidity, it is important to understand why that is not so and why, in the absence of any error of the kind discussed above, there can be no separate ground of review expressed in these terms.

4. [58]

   As with statements about the rule of law, the aphorism encapsulates a value or underlying rationale, not an applicable legal rule or legal principle. The first limb of the statement, “justice must be done” is understood to refer to justice according to law. The second limb should also be so understood.

5. [59]

   Were the aphorism to constitute a free-standing legal principle, it would have been necessary for the High Court in Public Service Board of New South Wales v Osmond [25] to have explained why the principle was generally inapplicable with respect to administrative decision-makers who, the Court held, were not subject to a legal obligation to give reasons, even for decisions which were judicially reviewable. There was no reference in Osmond to any such principle. Nor has it been invoked by this Court in explaining the scope and limits of the general law principle considered in Osmond. [26]

6. [60]

   The more recent decision of the High Court in Wingfoot Australia Partners Pty Ltd v Kocak [27] is inconsistent with any such approach. After noting that there is in Australia “no free-standing common law duty to give reasons for making a statutory decision”, referring to Osmond, and that the standard of written reasons required in order to fulfil a statutory duty depends upon the proper construction of the statute in question, the Court continued:

7. [61]

   Accepting that there is an obligation upon a judge exercising a power under Pt 7 of the Appeal and Review Act to give reasons for his or her decision and, further, that the reasons must be sufficient to allow the affected person to know if there is a basis to challenge the decision in this Court exercising its supervisory jurisdiction, it does not follow that there is any free-standing standard requiring that the reasons demonstrate that justice may be seen to be done. That language is less appropriate as a test than the more specific functional purposes referred to in Wingfoot.

8. [62]

   It may be noted that the grounds of judicial review specifically incorporate the value that justice should be seen to be done in express terms by requiring that the decision-maker be unaffected by a reasonable apprehension of bias. Such an apprehension arises where an informed lay observer might think that the decision-maker might not bring an unprejudiced mind to the process of decision-making and thus may not determine a dispute on the merits. [28] No such ground was pursued in the present case; nor would it have been sustainable.

9. [63]

   Beyond these considerations there is no warrant for a court exercising the supervisory jurisdiction to create a novel approach based on the need for an “appearance of justice”. That is so for two reasons. First, if “justice” refers to the outcome, it would require the court to review the merits of the decision; not being a patently unreasonable decision, that task is not part of the supervisory jurisdiction. Secondly, if it refers to the process of decision-making, it is a departure from the general law principle which is not warranted by the statutory context. At least by implication, the conclusion reached in Wingfoot may operate in the present circumstances, namely:

10. [64]

    As noted in Osmond, in some circumstances a court exercising the supervisory jurisdiction may be able to infer from a failure to give reasons that the decision-maker had no valid reasons for making the decision. [29] For reasons given above, such an inference is not available in the present case.

11. [65]

    If such an inference were available, there would nevertheless be a further step to be taken. It would be necessary to imply from the statute or the general law that the obligation to give reasons, although temporally consequent upon the existence of the decision, nevertheless constituted a precondition to the valid exercise of the decision-making power. As a general consideration, “[i]t is not easy to accept the notion that a decision is made without authority because subsequently the decision-maker fails to give reasons for the decision.” [30] Absent such a conclusion, the relief available in the supervisory jurisdiction for failure to give reasons is an order in the nature of mandamus. [31]

12. [66]

    Finally, it is appropriate to note that any proposed expansion of the supervisory jurisdiction with respect to non-judicial decision-making should take into account the fact that, although the judicial officer determining an application under Pt 7 of the Appeal and Review Act usually has available a submission by the Director of Public Prosecutions, or the Attorney General, that is not required by statute and the process does not involve parties, as in adversarial decision-making. [32] Although the decision-maker is not a member of the executive arm of government, the potential ramifications for administrative decision-making generally should be borne in mind. Administrative decision-makers, particularly those who are departmental heads or Ministers, rarely prepare written reasons. Rather, they usually adopt a reasoned recommendation from a departmental officer. In some cases that is done by countersigning the draft of an officer, in other cases by the decision-maker simply signing a document prepared for him or her by an officer, or even by counsel. The possibility that such practices are legally proscribed is novel and would require a level of consideration not provided in this case.

13. [67]

    For these reasons, any implicit suggestion that there is a free-standing right of review where it is said that justice has not been seen to be done, should be rejected. The relevant legal principles are encompassed by the phrase “justice according to law”.

Conclusion

1. [68]

   In these circumstances, having constructed from the non-legal analysis provided by the applicant, potential grounds of review, those grounds have not been shown to have merit. Accordingly the application for judicial review of the decision of Harrison J under the Appeal and Review Act, Pt 7, must be dismissed.

2. [69]

   WHITE JA: I have had the advantage of reading in draft the reasons for judgment of Basten JA and Brereton JA. Subject to para [71] below I agree with Basten JA’s reasons. I agree with the orders his Honour proposes. I add additional reasons for concurring in his Honour’s conclusion that Mr Li’s supplementary submission of 30 April 2018 did not raise any new material that the judge was required to address specifically.

3. [70]

   Counsel for the Attorney General submitted that it should be inferred that the judge failed to bring his own mind to bear on all of the issues before him because his Honour failed to address Mr Li’s complaint of a denial of procedural fairness or natural justice raised in his submissions of 30 April. The Attorney conceded that there had been a constructive failure by the judge to exercise jurisdiction. In his opening submissions counsel for the Attorney raised three points in relation to that concession. First, it had not been lightly made, but reflected the serious nature of applications under s 78 of the Crimes (Appeal and Review) Act 2001 (NSW) and the importance of ensuring that justice was both done and seen to be done. Secondly, that the concession was very narrow in scope. It was not submitted that the reproduction of submissions, with or without attribution, was itself an error. Thirdly, the concession obviously did not bind this Court.

4. [71]

   The Attorney did not submit that the application for judicial review should be refused on the ground that there was no reasonable possibility that any different decision could be reached if the application were remitted to a new decision-maker. Nor was that issue raised by the Bench in oral submissions. Mr Li was not called on to address it. For this reason I do not consider that the matters raised at [43] of Basten JA’s reasons provide a ground for refusing the application.

5. [72]

   The Attorney submitted that there were five matters from which a conclusion could be drawn that there had been a constructive failure to exercise jurisdiction. The first four of those matters all related to the extent of the copying, almost verbatim and without attribution, of the submissions of the Attorney General in response to Mr Li’s initial submissions. The Attorney accepted that the judge’s reformulation of the Attorney’s submissions truly expressed the judge’s state of mind. That must be accepted. But the Attorney submitted that this raised the possibility that his Honour may have been overly reliant on the Attorney’s submissions and had failed to bring an independent mind to the application, notwithstanding that his decision reflected his honestly-held opinion.

6. [73]

   Brereton JA’s reasons demonstrate that the reasons for decision of the primary judge would not meet the standard of reasons required if the judge were acting judicially to decide a controversy between parties. That was not the jurisdiction the primary judge was exercising. Rather, the primary judge was exercising the power of the Supreme Court to consider whether an inquiry should be conducted by a judicial officer into Mr Li’s sentence, or whether the whole case should be referred to the Court of Criminal Appeal to be dealt with as an appeal under the Criminal Appeal Act 1912 (NSW) (Crimes (Appeal and Review) Act 2001 (NSW), s 79(1)). Section 79(4) provides that proceedings under s 79 are not judicial proceedings.

7. [74]

   The decision of a judge acting under s 79 is amenable to judicial review. On judicial review under s 69 of the Supreme Court Act 1970 (NSW) the issues are whether the applicant for judicial review can establish that there was error of law on the face of the record or the judge committed jurisdictional error.

8. [75]

   In Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 281, McHugh JA said (in the passage cited by Brereton JA at [107] below) that the failure to explain the basis for a crucial finding of fact involved a breach of the principle that justice must not only be done, but must be seen to be done. A failure to explain the basis of a crucial finding of fact was an error of law because “... the learned judge ‘has not properly fulfilled the function which the law calls upon a judicial person to exercise’”.

9. [76]

   There was no such error in this case. In any event, it would not follow for the purposes of judicial review proceedings that such an error was an error of law on the face of the record. It is only if one goes behind the record to compare the reasons of the judge with the submissions of the Attorney-General that such an error of law can be detected (assuming that the same analysis as is applied to the determination of a judicial review proceeding can be applied to the exercise of the Supreme Court’s function under s 79(1)).

10. [77]

    I accept that a judge who did not bring an independent and impartial mind to bear on an application under s 78 of the Crimes (Appeal and Review) Act 2001 would commit jurisdictional error that would render the judge’s decision liable to be declared void. But I do not accept that the relevant yardstick is whether there is an appearance that justice has been done by the bringing to bear of an active, impartial and independent judicial mind, nor that it is sufficient to establish jurisdictional error that the substantial adoption of the Attorney’s submissions contributed to the creation of an “impression” that the judge did not bring an independent and impartial mind to the determination of the application. Rather, as the Full Federal Court said in LVR (WA) Pty Ltd v Administrative Appeals Tribunal (2012) 203 FCR 166; [2012] FCAFC 90 at [91]:

11. [78]

    On the present application for judicial review the question is not whether justice has not be seen to be done, but whether the court should be satisfied that the decision-maker did not in fact bring an impartial and independent mind to the decision. That is, the question is not whether Mr Li, or a reasonable person in his position, would have a legitimate sense of grievance that his submissions had not been fully absorbed and analysed and transmuted into a personal conviction on the part of the judge, but whether it should be found as a fact that the judge did not bring his own independent and impartial mind to bear on the issues.

12. [79]

    There is no reason to doubt that the views expressed by the judge, albeit in terms that reflect the Attorney General’s first submissions, did express his own views on the material presented. I agree with Basten JA’s reasons (at [19]-[24] and [52]-[53]) that it cannot be inferred from the judge’s acceptance of the Attorney’s submissions that his Honour did not form the opinions that he expressed. As no clear and credible bases for challenging the sentence were raised, it cannot be inferred that the judge, in accepting almost verbatim the Attorney’s submissions, did not apply an impartial and independent mind to the issues raised.

13. [80]

    The principal question raised and argued was whether the judge failed to consider the matters raised in Mr Li’s supplementary submissions of 30 April 2018. As Basten JA observes (at [28]) it is evident from the judge’s citation (at [28] of the primary judgment) of the first sentence of paragraph 10 of Mr Li’s supplementary submission that his Honour had read the submission. His Honour made no other reference to it. If there were matters of substance in that submission that had not been raised in Mr Li’s first submission, then it could be inferred, as the Attorney submitted, that there had been a constructive failure to exercise jurisdiction.

14. [81]

    Basten JA concludes (at [32], [36] and [37]) that there was in substance nothing new in the submission of 30 April 2018. I agree. I set out below my reasons for so agreeing.

15. [82]

    Mr Li’s submission of 30 April 2018 was in two parts. The first part did not introduce any new matters or arguments. In response to a submission of the Attorney it referred to a paragraph of Mr Li’s initial submissions in which he said:

16. [83]

    Mr Li’s essential complaint is that the sentencing judge found that he had a higher level of criminal responsibility for the charges to which he pleaded guilty than did his co-offender. In reaching that conclusion the sentencing judge drew inferences from a statement of agreed facts presented at the sentencing hearing. Mr Li contends that although he agreed to the facts so stated, there were other facts of which he could have given evidence (but did not) that would have shown that he had a lesser criminal responsibility than his co-offender. Essentially, his complaint under the heading “Procedural Fairness” was a complaint that his legal representatives at the sentencing hearing had not adduced such evidence. Although not expressly put, it should be inferred that he would also contend that his counsel, on appeal to the Court of Criminal Appeal, had not raised this as a ground of appeal.

17. [84]

    Mr Li’s supplementary submission of 30 April includes an introduction called “Introduction of Statement Part 2 to Judicial Officer”. Paragraph 9 relevantly states that:

18. [85]

    The reference to Mr Li’s “general submissions” is a reference to the first set of submissions filed 29 January 2018. This paragraph accurately states that the matters raised in the supplementary submission of 30 April are intended to highlight what was said to be critical points made in Mr Li’s initial submissions, rather than to raise new matters. As was put by counsel for the Attorney General, the only difference was said to be one of emphasis.

19. [86]

    From the section in the supplementary submission headed “Procedural Fairness” the following contentions can be distilled:

20. [87]

    These matters had been addressed in Mr Li’s initial submissions of 29 January. In paragraph 8 of those submissions, to which the Attorney General responded and whose response was adopted by the judge, Mr Li raised the contention of apprehended bias and the irrational drawing of inferences:

21. [88]

    Mr Li’s initial submissions addressed the contention that he did not understand the conversations that took place in court because of his poor English skills. He gave evidence at the sentencing hearing without an interpreter. When asked if he was comfortable in doing so he said that he was. In his initial submissions he alleged that he “... had no knowledge how is the court process because that is usually exercised and determined by the legal team”. He said in his initial submissions (at [15]) that:

22. [89]

    In his initial submissions he criticised his legal representatives at the sentencing hearing and he said that he “... had no choice but had signed this statement [of agreed facts] in a very rush way under without any scrutiny or legal advice.”

23. [90]

    The substance of the matters raised in submissions in reply had been advanced in the initial submissions and addressed in the Attorney’s submissions that were adopted by the judge.

24. [91]

    The next topic addressed in part 2 of Mr Li’s supplementary submissions of 30 April was headed “Legal Argument”. It dealt with the hearing on the voir dire or the Basha inquiry (R v Basha (1989) 39 A Crim R 337) which took place in the Victorian County Court between 22 and 29 July 2008. This section of the supplementary submissions in substance repeats (in some areas verbatim) matters that had been raised in Mr Li’s initial submissions.

25. [92]

    In Mr Li’s supplementary submissions under the heading “Proof Beyond Reasonable Doubt” he contended that the Crown’s case was largely based on inferences drawn from the statement of agreed facts and did not prove beyond a reasonable doubt the facts the sentencing judge inferred from the statement of agreed facts, and the alleged degree to which he participated in the criminal enterprise. He made the same contention in his initial submissions. In those submissions he said:

26. [93]

    Those submissions were considered by the judge and answered by reference to the answers given in the Attorney’s submissions.

27. [94]

    Under the heading “Parity Principle” in his supplementary submissions of 30 April Mr Li said:

28. [95]

    The same submission was made, albeit in shorter form, at page 57 of Mr Li’s initial submissions:

29. [96]

    The conclusion in Mr Li’s submission of 30 April was that he had a lower degree of criminal responsibility for the offence than his co-offender. This was the same submission that he made initially and was addressed by the judge.

30. [97]

    Accordingly, I agree with Basten JA that, contrary to the submission of the Attorney General, it cannot be concluded that the judge did not have regard to the matters raised by Mr Li in his submissions of 30 April 2018. Those submissions raised no substantive new matter. It is clear that the judge considered them. Because they raised no new matter he did not have to address them specifically. It cannot be concluded from his Honour’s almost verbatim adoption of the Attorney’s submissions that he did not bring his own mind to bear on Mr Li’s submissions.

31. [98]

    Mr Li’s supplementary submission concluded with a list of ten questions he submitted the judge should require the Attorney General to answer. The judge was not required to address those questions. They covered the areas on which submissions had been made on 29 January 2018 and had been repeated in the supplementary submissions.

32. [99]

    I agree with Basten JA’s reasons (at [49]-[52]) that this case stands in contrast to the conclusion drawn by the Full Court of the Federal Court in LVR (WA) Pty Ltd v Administrative Appeals Tribunal (2012) 203 FCR 166; [2012] FCAFC 90.

33. [100]

    I would also dismiss the application.

34. [101]

    BRERETON JA: On 28 May 2018, Harrison J dismissed Patrick Lam Li’s application under s 78 of the Crimes (Appeal and Review) Act 2001 (NSW), for an inquiry into his sentence imposed on 10 August 2012 to imprisonment for a term of 19 years 6 months from 18 March 2009, consequent upon his plea of guilty to a charge of supplying a large commercial quantity of a prohibited drug. His Honour’s reasons for doing so extensively incorporated, without attribution, the written submissions which had been provided to him by the Attorney General in opposition to the application – not only as to uncontroversial history and principles, but also in respect of the formulation and disposition of the issues for consideration – while they barely referred to Mr Li’s submissions in support of it. Mr Li now applies to this Court, by summons filed on 13 September 2018, for judicial review of that decision. The essence of his case appears from the following excerpts of the applicant’s submissions to this Court [sic]:

35. [102]

    From his submissions, and from those passages in particular, appear complaints that:

    1. (1)

       the judge did not have regard to Mr Li’s second submission (being that dated 30 April 2018); and

    2. (2)

       the judge, in adopting the Attorney’s submissions, did not bring an independent and impartial mind to engage with the applicant’s claim and submissions.

36. [103]

    I agree with Basten JA, whose reasons in draft I have had the benefit of reading, that the complaint that the judge did not have regard to Mr Li’s second submission must be rejected. There is specific reference to that submission at one point in the reasons, in a sentence which was added by the judge to what was replicated from the Attorney’s submissions. I also agree with Basten JA that, in their terms, the reasons would not be inadequate for failure to address the issues that had been raised by Mr Li – including those that were elaborated and refined in his submissions in reply. However, to my mind, the critical question turns not on the words of the reasons themselves, but on the circumstances of their creation; [33] it is whether the judge’s extensive and unattributed use of the Attorney’s submissions amounts to an error of law or a constructive failure to exercise jurisdiction such as to attract relief under s 69 of the Supreme Court Act 1970 (NSW). Somewhat like Mason P in Beale v Government Insurance Office of New South Wales, [34] I am driven to conclude that the applicant is entitled to a declaration that the decision on his s 78 application is void, because the reasoning process exposed by the learned trial judge leaves the applicant with a justifiable sense of grievance – notwithstanding my suspicion that this may be the result of simple efficiency in the rendering in written form of an adequate process of reasoning on the part of a busy judge. Nevertheless, there is a breach of the principle that justice must not only be done, but must be seen to be done.

Justice must be seen to be done

1. [104]

   While the adequacy of reasons for a decision is influenced by the circumstances of the case, reasons will be inadequate not only if it is not possible to discern from them the reasoning upon which the decision is based, but also if justice is not seen to have been done. [35] As appears from the authorities discussed below, the second limb will be engaged – that is, justice will not be seen to have been done – if the “reasons” are such as to leave the unsuccessful party with a justifiable sense of grievance because they do not appear to be the product of the active application of an independent and impartial mind.

2. [105]

   In Connell v Auckland City Council, [36] Chilwell J, applying the decision of this court in Pettitt v Dunkley [37] to hold that a decision of justices was a nullity in the absence of reasons, added:

3. [106]

   In referring to being “justified” in feeling disturbed, his Honour was, I think, referring to circumstances in which a reasonable person in the position of the unsuccessful party would entertain such feelings.

4. [107]

   In Soulemezis v Dudley (Holdings) Pty Ltd, [38] McHugh JA, as he then was, explained that the giving of reasons for a judicial decision served at least three purposes, of which the first was to enable the parties to see the extent to which their arguments had been understood and accepted as well as the basis of a judge's decision (the second being to further judicial accountability, and the third to enable interested persons to ascertain the basis upon which like cases will probably be decided in the future). In the context of that case, where there was no relevant right of appeal, the touchstone was whether justice was seen to be done (emphasis added): [39]

5. [108]

   His Honour’s reasoning was influential in the judgment of Gray J (with whom Fullagar and Tadgell JJ agreed), in Sun Alliance Insurance Ltd v Massoud, [40] expressly holding that reasons would be inadequate if “justice is not seen to be done”: [41]

6. [109]

   In Mifsud v Campbell, [42] Samuels JA (with whom Clarke JA and Hope AJA agreed) referred in this context to the principle that justice must not only be done but must be seen to be done, which will be contravened if the unsuccessful party is left with a legitimate sense of grievance that its case has not been properly addressed (emphasis added):

7. [110]

   In Commissioner for Railways for the State of Queensland v Peters, [43] Kirby P (with whom Priestley JA and Waddell AJA agreed), in explaining why brief reasons, which incorporated the submissions for each party and expressed a preference for one without elaboration, were inadequate, referred not only to the impossibility of an appellate court ascertaining the basis on which the decision was made, but also to the risk that the parties would conclude that their arguments had not adequately been addressed, and the consequent damage to the administration of justice (emphasis added): [44]

8. [111]

   In Australian Securities Commission v Schreuder, [45] Underwood J wrote (emphasis added):

9. [112]

   In Beale v Government Insurance Office of New South Wales, [46] this Court held that there is a miscarriage of justice where reasons do not satisfy the principle that justice must not only be done but must be seen to be done. Mason P (with whom Sheller JA agreed) said: [47]

10. [113]

    Meagher JA emphasised the role of adequate reasons in mitigating the risk of a party being left with a “real sense of grievance”: [48]

11. [114]

    In R v Maxwell, [49] in a passage which was cited with approval by this Court in Moylan v Nutrasweet Co, [50] the Court of Criminal Appeal said:

12. [115]

    In Pollard v RRR Corporation Pty Ltd, [51] McColl JA, with whom Ipp JA and Bryson AJA agreed, said:

13. [116]

    The authorities to which I have referred support the following propositions:

    1. (1)

       reasons will be inadequate not only if it is not possible to discern from them the reasoning upon which the decision is based, but also if justice is not seen to have been done; and

    2. (2)

       justice will not be seen to have been done if the “reasons” are such as to leave a reasonable person in the position of the unsuccessful party with a justifiable sense of grievance at the appearance that the decision-maker has not addressed attention adequately, or at all, to the arguments of the parties, and understood the unsuccessful party’s arguments and either accepted them, or, if rejected, that the rejection was based on a clear and rational process of reasoning.

Judicial copying of submissions

1. [117]

   It is then necessary to consider the operation of those principles in the context of reasons that extensively incorporate and adopt, with or without attribution, the submissions of one or both parties. In Fyntray Constructions Pty Ltd v Macind Drainage & Hydraulic Services Pty Ltd, [52] Heydon JA, as he then was (with whom Hodgson JA and Ipp AJA agreed), explained that one reason why it is generally unsatisfactory merely to set out two competing sets of reasons and say that one is preferred, is that the reader cannot be sure that the competing submissions have been fully absorbed, analysed and transmuted into a personal conviction on the part of the judge that the orders to be made are just and in accordance with law (emphasis added):

2. [118]

   In Pollard v Wilson, [53] it was insufficient for the judge to agree with the admittedly well-constructed and soundly reasoned submissions of one party (which were set out), without indicating that he had himself analysed the evidence to conclude that the assertions of fact in those submissions were supported by the evidence, and this was so notwithstanding that much of the evidence was uncontroversial.

3. [119]

   In Fletcher Construction Australia Ltd v Lines MacFarlane & Marshall Pty Ltd (No 2), [54] the Victorian Court of Appeal rejected a submission that reasons which extensively adopted the submissions of one party and did not refer to the other’s were adequate because they implicitly rejected the other’s:

4. [120]

   In LVR (WA) Pty Ltd v Administrative Appeals Tribunal, [55] which arose in the context of administrative rather than judicial decision-making, the Full Court of the Federal Court observed that the circumstance that the reasons of the AAT comprised, almost entirely, verbatim and without attribution, the written submissions of one party, “would give rise to a serious concern that the tribunal had failed to bring its own mind to bear on the issues before it and thus that it had constructively failed to exercise its jurisdiction”. [56] Notable contributing considerations were the extent of the reproduction; that what was reproduced was not an earlier decision or precedent, but the submissions of one party; and that the material reproduced was not merely uncontroversial chronology or a statement of facts, but argument and conclusions.

5. [121]

   To like effect – although it involved reproduction of the reasons of a prior decision-maker rather than the submissions of a party – is Huluba v Minister for Immigration and Ethnic Affairs, [57] in which the applicant had applied for internal review, by reconsideration by a second delegate, of the first delegate’s refusal of his application for refugee status. The reasons of the second delegate repeated, almost verbatim, substantial portions of those of the first delegate, using the same language, sometimes in florid terms, on critical aspects of the decision-making process, which were specific to the applicant. Beazley J, as she then was, held that the use by the second delegate of the same language used by the first on critical aspects of the decision-making process made it more probable than not that the second decision-maker did not apply an independent mind to the decision-making process, and that this amounted to a denial of procedural fairness. [58] This would now probably be characterised as a constructive failure to exercise jurisdiction, rather than a denial of procedural fairness. [59]

6. [122]

   It is not necessarily impermissible for a judge to incorporate, even extensively, with or without attribution, the submissions of one or both parties. In Juneja v Tax Practitioners Board, [60] Besanko J concluded that reasons which comprised “the mostly uncritical adoption by the tribunal of the respondent’s submissions, copied verbatim”, did not mean that the tribunal had failed to bring its own mind to the issues; in so concluding, his Honour observed that the tribunal had referred in its reasons to the submissions for the other party. In Beaman v Bond, [61] it was acknowledged that portions of the first instance judgment were replicated from a party’s submissions, but much of what was replicated was an uncontroversial summary of the law and uncontested facts and, in addition, the tribunal had also referred to the applicant’s submissions. McKerracher J (with whom Gilmour and Charlesworth JJ agreed) nonetheless observed: [62]

7. [123]

   In Rodchompoo v Minister for Immigration and Border Protection, [63] the substantial reproduction, without attribution, of the Minister’s Statement of Facts and Contentions, including as to some matters of controversy, was not indicative of a constructive failure to exercise jurisdiction, because the reasons contained sufficient additional references, inserted by the Tribunal, to indicate that the Tribunal had considered evidence given at the hearing which was not included in the Statement of Facts and Contentions. In SZMUV v Minister for Immigration and Citizenship, [64] extensive reproduction of the Minister’s submissions, including on substantive matters, did not reveal error, because there was sufficient to indicate that the Federal Magistrate had given independent consideration to each ground. And similarly, in SZNRZ v Minister for Immigration and Citizenship, [65] extensive reproduction of the Minister’s submissions did not constitute error, because the short additional reasons sufficiently disclosed the manner in which the Federal Magistrate had proceeded. However, that was in circumstances where the appellant did not appear when the appeal was called on for hearing. Flick J observed that the repetition of the reasoning and submissions of others had many dangers, including that “it may create in the mind of the disappointed litigant the belief that independent judicial consideration has not been given to the legal and factual merits presented for resolution”. [66]

8. [124]

   As stated in Fyntray, the potential vice in reasons that substantially incorporate and/or adopt one party’s submissions is that they will fail to demonstrate that the unsuccessful party’s case has been “fully absorbed by the trial judge’s mind, analysed and transmuted into a personal conviction that the orders ultimately made are both just and in accordance with law” [67] – that is to say, that the trial judge has brought an active, independent and impartial mind to the resolution of the issues – and thus leave the unsuccessful party with a justifiable sense of grievance. The cases in which the extensive incorporation of a party’s submissions has not amounted to error all share the characteristic that the reasons contained, in addition to the reproduced submissions, references to evidence, or to the submissions of the other party, or additional reasoning, which sufficed to show that the decision-maker had turned his or her mind to the issues. This illustrates that the central issue is whether the judge has – or appears to have – personally and independently engaged with the issues so as to render an independent and impartial judgment; “[t]he concern about copying in the judicial context is not that the judge is taking credit for someone else’s prose, but rather that it may be evidence that the reasons for judgment do not reflect the judge’s thinking”. [68] As the Third Circuit said in Bright v Westmoreland County: [69]

9. [125]

   These issues have been considered by the Supreme Court of Canada, in Cojocaru v British Columbia Women’s Hospital and Health Centre, [70] where the trial judge had copied, almost verbatim (with inconsequential changes, such as replacing phrases such as “it is submitted” with phrases like “I have concluded”) and without attribution, 321 paragraphs from the plaintiffs’ written submissions; a further 40 paragraphs were the trial judge’s own words, while the remaining seven comprised a mixture of passages copied from the plaintiffs’ written submissions and passages written by the judge. [71] However, the trial judge did not accept all the submissions of the plaintiffs, discussed a number of issues and stated his final conclusions in his own words. [72]

10. [126]

    The British Columbia Court of Appeal ordered a retrial, [73] the majority (Levine and Kirkpatrick JJA) holding that the trial judge had not independently and impartially considered the law and the evidence and arrived at his own conclusions on the complex issues before him. [74] Their Honours observed that a close examination of the judge’s reasons alongside the plaintiffs’ written submissions left an indelible impression that the judge could not have applied his own reasoning process to the case, [75] and that an informed and reasonable observer could not help but be astonished by the virtual absence of consideration of the defendants’ arguments and the evidence adduced in support of their positions. [76]

11. [127]

    However, the Court of Appeal’s judgment was overturned by the Supreme Court of Canada. McLachlin CJ, with whom the other members of the Court agreed, said that while, as a general rule, it is good judicial practice for a judge to set out the contending positions of the parties on the facts and the law, and explain in his or her own words the conclusions on the facts and the law, the inclusion of the material of others is not prohibited, and judicial copying is a long-standing and accepted practice. However, if the incorporation of the material of others is evidence that would lead a reasonable person to conclude, taking into account all relevant circumstances, that the decision-making process was fundamentally unfair – in the sense that the judge did not put his or her mind to the facts, the argument and the issues, and decide them impartially and independently – the judgment could be set aside. Her Ladyship reasoned that attribution (or absence thereof) of copied material to the author is ambivalent as to whether the judge gave independent consideration to the issues addressed in the material copied; and that absence of originality is not of itself a flaw in judgment writing but part and parcel of the judicial process:

12. [128]

    After reviewing cases in England, Hong Kong, Australia, [77] the United States and Canada in which judicial copying had been held to be permissible, her Ladyship said:

13. [129]

    Notably, in scrutinising the quality of the copying, her Ladyship pointed to the fact that the judge had accepted some of the defendants’ submissions, and that a comparison of the submissions of the plaintiffs and the reasons for judgment showed that the portions of the plaintiffs’ submissions that the judge copied were edited before being incorporated in the reasons, as indicating that the judge did not uncritically accept the submissions but put his mind to its contents and whether they reflected his views:

14. [130]

    A strong element in the Canadian Court’s reasoning was provided by the presumption of integrity and impartiality that attends judicial decisions — a presumption that the judge has done the job as he or she has sworn to do, so that a party seeking to set aside a judicial decision because the judge’s reasons incorporated the material of others bears the burden of showing that the presumption is rebutted, which requires cogent evidence – as articulated in the following passages: [78]

15. [131]

    Although the underlying issue is fundamentally the same – whether the judge has applied his or her independent mind to the evidence and the issues so as to render an independent and impartial decision – the approach adopted by the Canadian Court in Cojocaru gives much greater emphasis to a presumption of judicial integrity and impartiality, and less to the appearance of justice having been done by the bringing to bear of an active, impartial and independent judicial mind, than does the jurisprudence in this country. I would not accept that one commences from the position that there is a presumption to be displaced; the essential issue is not only whether there has been, but whether there is also seen to have been, from the perspective of a reasonable person in the position of the unsuccessful party, an independent and impartial judgment. Moreover, I am unpersuaded that absence of attribution is entirely irrelevant; its danger lies in the appearance of obscuring what is being done, which upon being discovered by the unsuccessful party is calculated to exacerbate a sense of grievance from the appearance that its opponent’s case has been adopted sub silentio, while its own was ignored.

16. [132]

    Nonetheless, it is clear that extensive replication, whether or not attributed, of the submissions of one or both parties will not of itself amount to error, so long as the reasons sufficiently reveal that the decision-maker gave independent consideration to the relevant issues. However, this requires that the reasons appear to a reasonable person in the position of the unsuccessful party to demonstrate that the decision-maker has actively engaged with its submissions and contentions, and brought to bear an independent and impartial judgment founded on reason and logic. That requirement will not be satisfied if the reasons leave an impression that arguments have been embraced without serious consideration having been given either to the contrary point of view, or to the application of an independent point of view, as will be the case where reasons which substantially incorporate, reproduce and/or adopt the submissions of one party do not contain indicia, beyond mere formulaic and stylistic changes, that they are the product of the active application of an independent and impartial mind, which has absorbed and analysed the competing submissions to reach a personal conviction on the part of the judge that the orders to be made are just and in accordance with law.

The judge’s reasons

1. [133]

   The next question is whether, by that yardstick, the judge’s reasons were deficient. Although his Honour was making an administrative and not a judicial decision, in the context of a decision entrusted to the Court and its judges, the reasons he gave should be regarded as being pursuant to an obligation to do so. [79] And although the duties of judges and administrative decision-makers to give reasons have different sources, their purpose is the same. [80]

2. [134]

   The extent to which the judge’s reasons incorporated the Attorney’s submissions is best appreciated from the comparative document provided with the Attorney’s submissions in this court. The Attorney’s submissions to his Honour comprised 50 paragraphs; his Honour’s reasons 51. His Honour omitted paragraphs [2] and [4] of the Attorney’s submissions (which dealt respectively with the entitlement of the Crown to make submissions, and an accompanying bundle of documents), and made stylistic or formulaic changes to virtually every paragraph (including to reframe “submissions” as “conclusions”), but as to matters of substance, his Honour’s reasons contained only four substantive additions to the Attorney’s submissions. The first was that his Honour inserted an additional paragraph at [28]:

3. [135]

   It is the insertion of this paragraph that rebuts the argument that Mr Li’s second submission was overlooked. Nonetheless, the only reference to that submission was to a concession on the part of Mr Li, and the reasons do not address, in direct terms, the issues raised by Mr Li in those submissions. I accept that the second submission did not in substance raise new issues such as to require answers additional to those contained in the reasons, but the absence of any reference to its contents (other than the concession) contributes to an impression that there has been a mere adoption of the Attorney’s submissions, and not a personal engagement with those of Mr Li.

4. [136]

   The second was that his Honour added the last sentence (italicised below) at [34]:

5. [137]

   The third was that his Honour added to the table at [46], a column headed “NSW Sentence (prior to discount for early guilty plea)”, which served only to illustrate the point that is in the fourth, being the insertion in [47] of the sentence italicized below:

6. [138]

   His Honour also added the concluding paragraph [51]:

7. [139]

   As the Attorney submitted in this court, while part of what was reproduced involved uncontroversial history and principles of law, [81] significance attaches to the manner in which the reasons dealt with the nature of the applicant’s case. Mr Li was unrepresented, not legally trained, and was less than fluent in English. Unsurprisingly in those circumstances, his submissions required analysis and refinement to distill any specific “doubt or question … as to any mitigating circumstances in the case or as to any part of the evidence in the case” that he might be propounding. [82] The Attorney’s submissions undertook this exercise, in the following manner:

8. [140]

   His Honour adopted, practically verbatim, the Attorney’s formulation:

9. [141]

   The Attorney’s submissions below – mirrored by the judge’s reasons – then proceed to address the application by reference to the issues so formulated. That formulation does not, at least explicitly, refer to the issue of procedural fairness, which was several times adverted to in the applicant’s first submission, and elaborated in his second submission. The Attorney’s submissions, and thus the judge’s reasons, do not in terms refer to natural justice or procedural fairness – which were addressed by the Attorney in his reply submissions. I accept that, as a matter of substance, the words of the Attorney’s submissions in chief, as incorporated in the judge’s reasons, functionally sufficiently addressed those issues. However, the adoption of the Attorney’s characterisation of the applicant’s case, and then of the Attorney’s disposal of it, contributes to the creation of an impression that his Honour did not bring an independent and impartial mind to the determination of the application. Had the judge reformulated the issues in his own terms, it would have been clear that he had independently turned his mind to the applicant’s case.

10. [142]

    To my mind, such an impression is fortified by the circumstance that, as Basten JA points out, [83] surprisingly little attention was given to the circumstance that there had been an unsuccessful appeal to the Court of Criminal Appeal. In circumstances where s 79(3)(a)(i) provides that the Supreme Court may refuse to consider or otherwise deal with an application if, inter alia, “it appears that the matter … has been fully dealt with in the proceedings giving rise to the conviction or sentence (or in any proceedings on appeal from the conviction or sentence)”, independent consideration of the issues might have been expected to result in greater attention being given to that consideration.

11. [143]

    In my view, the judge’s reasons are, by the relevant yardstick, deficient. The extensive adoption of the Attorney’s submissions, not only on uncontroversial matters, but particularly on the formulation and rejection of the applicant’s case, with the only reference to the applicant’s second submission being to a concession, is such as to create an impression that the judge has not independently and impartially engaged with the applicant’s claim and submissions and given serious consideration to them. The four matters inserted – which embellish submissions made by the Attorney rather than engage with submissions advanced by the applicant – are insufficient to overcome this impression, and the stylistic changes, and substitution of conclusions for submissions, even less so. A reasonable person in the position of the unsuccessful applicant would have a legitimate sense of grievance that his submissions had not been fully absorbed, analysed and transmuted into a personal conviction on the part of the judge that the orders to be made were just and in accordance with law, and that the judge did not bring his own independent and impartial mind to bear on the issues. The absence of attribution contributes to this impression, because it obscures the nature of what has been done.

12. [144]

    In my view, therefore, the extent of the unattributed reproduction of the Attorney’s submissions, particularly in respect of the formulation of the applicant’s case and its disposal, is such as to create an appearance, from the perspective of a reasonable person in the position of the unsuccessful applicant, that his application did not receive proper independent and impartial consideration. Before us, the Attorney conceded as much. Justice was therefore not seen to be done. And as has been explained, in this field, appearances matter, whatever the reality may be.

A constructive failure to exercise jurisdiction

1. [145]

   It is next necessary to address whether that amounts to error of the kind that is cognizable under s 69 of the Supreme Court Act.

2. [146]

   Several decisions of this Court have held, or accepted, that failure to give adequate reasons, when reasons are required, is an error of law, involving a miscarriage of the decision-making process and a failure properly to discharge the functions of the decision-maker.

3. [147]

   In Pettitt v Dunkley, [84] Asprey JA said that failure to discharge the obligation imposed by law to give reasons was an error of law, in failing to fulfil the judicial function (emphasis added):

4. [148]

   Moffitt JA, as he then was, with whom Manning JA agreed, also held that failure to give reasons, when reasons were required, was an error of law, being a miscarriage of the judicial process. [85] His Honour said: [86]

5. [149]

   In Soulemezis v Dudley (Holdings) Pty Ltd, [87] McHugh JA (in the passage cited above at [107]) adopted the language of Asprey JA in Pettitt v Dunkley to hold that if a failure to explain the basis of a crucial finding of fact involved a breach of the principle that justice must not only be done but must be seen to be done, then it was an error of law because the judge had not properly fulfilled the function which the law calls upon a judicial officer to exercise.

6. [150]

   In Mifsud v Campbell, [88] Samuels JA said (in the passage cited above at [109]) in effect, that if a judge deals with the issues in a manner calculated to promote a sense of grievance in the adversary and create a litigant who is not only “disappointed” but “disturbed”, tending to deny both the fact and the appearance of justice having been done, then it will have worked a miscarriage of justice and have produced a mis-trial and resulted in an error of law which is reviewable on appeal, because it involves a failure by the judge to do what the nature of the office requires. Clarke JA expressed a reservation as to whether the error was one of law, but did not refer to the abovementioned cases. [89] Hope AJA did not find it necessary to resolve whether the error was one of law. [90]

7. [151]

   In Beale v Government Insurance Office of New South Wales, [91] Meagher JA said:

8. [152]

   A failure to give adequate reasons, where there is an obligation to do so, is a failure to properly perform the function of the decision-maker and to conduct the proceeding in accordance with proper processes – analogous to a denial of procedural fairness, or a failure to direct attention to and only to relevant considerations – and thus a species of jurisdictional error in the broad sense. In LVR, failure by a decision-maker to bring their own mind to bear on the issues was characterised as a constructive failure to exercise jurisdiction. That approach has been followed in this Court. [92] The nexus between a miscarriage in the discharge of the decision-maker’s function and jurisdictional error was explained by Basten JA in Boele v Rinbac Pty Ltd: [93]

9. [153]

   It follows that the failure to give reasons which sufficiently demonstrate that the judge’s own independent and impartial mind has been brought to bear on the issues is a constructive failure to exercise jurisdiction. It is therefore unnecessary to consider whether there is an error of law apparent on the face of the record: notwithstanding that, by operation of s 69(4) of the Supreme Court Act, the record includes the reasons, this is not self-evidently so, as resort must be had to the first-instance submissions of the Attorney, in addition to the reasons, to demonstrate the error. Moreover, the declaratory jurisdiction of the Court under s 75 of the Supreme Court Act is, as distinct from the prerogative jurisdiction under s 69, not strictly limited to cases of jurisdictional error and error of law on the face of the record.

The consequences of failure to give adequate reasons

1. [154]

   The requirement for reasons that demonstrate that the decision-maker has brought, and is seen to have brought, an impartial and independent mind to the issues raised by the application is not obviated or mitigated by the absence of any factual or legal dispute to be resolved, or of the demonstration of evidence which was not considered by the sentencing judge but has since become available. [94] Just as the requirements of natural justice are not relieved by the circumstance that compliance with them would have made no difference – the decision is void, not voidable, although there may be a discretion in some circumstances to decline prerogative or discretionary relief [95] – so the requirement for adequate reasons stands independently of the correctness of the decision-maker’s conclusion.

2. [155]

   In Pettitt v Dunkley, in the passage cited above, Moffitt JA held that a failure to give any reasons where there was a duty to do so, as with other errors in the judicial process, constitutes an error of law such as can vitiate the judgment even in cases where it does not appear whether or not the omission would have affected the result. [96] In Connell v Auckland City Council, which was cited in Mifsud v Campbell, Chilwell J held that the justices’ decision was a nullity in the absence of reasons. [97] In Palmer v Clarke, Kirby P said: [98]

3. [156]

   Similarly, Priestley JA said: [99]

4. [157]

   The appeal was allowed, for the trial judge’s failure to give sufficient reasons.

5. [158]

   In Fletcher Construction Australia Ltd v Lines MacFarlane & Marshall Pty Ltd (No 2), [100] the Victorian Court of Appeal, with reference to those passages, said:

6. [159]

   It is true that in Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme, [101] the High Court rejected arguments that a decision of the Minister to cancel a visa was not invalidated by the Minister’s failure to provide his reasons to the visa holder. However, that was in a context where the giving of the reasons to the visa holder was a step which, under the relevant statute, logically and temporally succeeded the making of a decision, and the statute expressly provided that a failure to comply with it did not of itself affect the validity of the cancellation. Moreover, it was accepted that reasons, once given, might reveal jurisdictional error. Here, they have been given, and reveal error.

7. [160]

   As Basten JA has pointed out, [102] the Court in LVR ultimately resolved the appeal on the alternative ground that there had been a failure to take into account a relevant consideration. It may be accepted that that ground does not arise in this case. But that is not to be conflated with whether the judge has brought, and is seen to have brought, an impartial and independent mind to the issues raised by the application. The circumstance that the applicant has not demonstrated that any matters of materiality were ignored or not taken into account by the judge determining the application, nor that there was now available evidence which had not been available to be considered by the sentencing judge, does not relieve the judge of the obligation of delivering reasons which demonstrate that the decision-maker has given serious consideration to the unsuccessful party’s submissions and contentions, and brought to bear an independent and impartial judgment. Nor is it affected by the circumstance that it cannot be said that adequate reasons would have made any difference to the result. If Mr Li’s application was hopeless, he was at least entitled to have that conclusion expressed in reasons which demonstrated that that the decision-maker had given serious consideration to his claim and submissions, and brought to bear an independent and impartial judgment, and did not leave the impression that the Attorney’s arguments had been embraced without the application of an independent point of view.

Conclusion

1. [161]

   My conclusions may be summarised as follows:

   1. (1)

      The extensive unattributed use made by the judge of the Attorney’s submissions is calculated to create in the mind of a reasonable person in the position of the unsuccessful applicant a justified sense of grievance that his submissions had not been fully absorbed and analysed, and that the judge had not brought his own independent and impartial mind to bear on the issues, and thus there is an appearance that justice has not been done.

   2. (2)

      Where reasons for decision leave the appearance that justice has not been done, there is a constructive failure to exercise jurisdiction.

   3. (3)

      Such an error vitiates the decision, regardless of whether it was objectively correct, or whether there were issues of fact or law raised by competing submissions which required resolution.

2. [162]

   As Simpson JA observed in GAR v Attorney General of New South Wales (No 2), [103] with reference to Sinkovich v Attorney General of New South Wales [104] and Buttrose v Attorney General (NSW), [105] there are complex and unresolved questions concerning the availability of relief in the nature of certiorari and mandamus in respect of determinations of this kind; but the same issues do not arise in relation to declaratory orders under s 75 of the Supreme Court Act. Her Honour indicated (at [93]) that she would have made a declaration along similar lines to those pronounced in Sinkovich and Buttrose, in the following terms:

3. [163]

   In my view, it suffices and is preferable simply to declare that the decision dismissing the application was void.

4. [164]

   In my opinion, there should be a declaration that the decision of Harrison J dismissing the applicant’s s 78 application is void.