Aaron Patrick Nattrass v. Attorney General

CACV000230/1996

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Coram: Mortimer, Mayo and Ching JJA in Court

Date of hearing: 3 January 1997

Date of Judgment: Judgment 6 January 1997

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JUDGMENT

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Mortimer JA:

1. On 14 November 1996, after an ex parte hearing Keith J refused the appellant leave to apply for judicial review. We dismissed his appeal against that decision on 3 January 1997 and we now give our reasons.

The background

2. The appellant is charged in the District Court with 35 offences of dishonesty concerning the running of an immigration consultancy in Hong Kong. The offences are said to have been committed in 1988 and 1989. If they are made out they are very serious. The trial was fixed for 1 May 1995 before His Honour Judge Caird. The appellant applied for a stay of the criminal proceedings. With short adjournments the hearing continued until 30 June 1995 when the judge discharged himself. However, on 19 December 1995, following an application by the appellant, the High Court - in its supervisory capacity - ordered Judge Caird to continue the hearing. In obedience to the order, the hearing was resumed in March 1996. There were adjournments but the stay application was resumed on 12 August 1996. When it was nearly complete the judge discharged himself again on 3 September 1996 on the grounds that he was medically unfit to continue the trial. On 5 September 1996 Her Honour Judge Beeson, the senior District Court judge, provisionally re-listed the case for trial on 15 January 1997.

The application

3. Before Keith J the appellant asked for leave to apply for judicial review of the following decisions:

4. For the purposes of the application for leave, the judge was prepared to assume that the challenge to the decision-making in each case could be shown to have passed the threshold but he refused leave on the basis that in each case no practical remedy was available.

5. At the time of the hearing before Keith J the appellant's main objective was to have Judge Caird restored to the case. By that time, however, Judge Caird had applied for early retirement on the grounds of ill health and the appointment of a tribunal was proposed to examine whether he ought to be dismissed for misconduct. Taking into account that the judge was soon due to reach retirement age, Keith J considered it so unlikely that the judge could ever resume the hearing - even if ordered - that no practical relief could be granted.

6. As for Judge Beeson's decision not to discharge herself from the listing hearing, he considered that even if it could be shown that she ought to have discharged herself from making the administrative directions the only outcome would be to have another judge fix the date.

The appeal

7. The appellant appears in person. Although we have tried to keep his submissions relevant to this appeal, his argument has tended to range far and wide.

8. Since Keith J's decision, his view as to Judge Caird's availability has been borne out by the events. His Excellency the Governor has indicated that he will allow Judge Caird to retire early on the grounds of ill health and an agreed letter has been put before the court to that effect. In the circumstances the appellant recognises that there is no purpose in him in asking the court for an order of mandamus. He submits however that leave should still be granted for him to apply for a certiorari to strike down the judge's decision and for a declaration to stay the criminal proceedings against him. He wants the stay application to be determined in the High Court and not in the District Court.

9. Before this Court, the main focus of his submissions has been to obtain leave to challenge Judge Beeson's refusal to discharge herself from presiding over the listing hearing. He submits that his counsel was not heard and therefore that her decision was procedurally unfair and, secondly, he submits that justice has not been seen to be done. He puts his case in this way. Judge Caird made an allegation that Judge Beeson had sought to influence him in the case. Although it appears that Judge Caird has since withdrawn this allegation as a misunderstanding consequent upon his illness, the appellant says that he fears Judge Beeson could have selected the new judge and could seek to influence him in the conduct of the case. Therefore, he submits, he should have leave to strike down Judge Beeson's decisions so that another judge would then direct the new hearing date and consequentially select the judge.

Conclusion

10. As can be seen, the submissions made to this Court have been different, both in emphasis and content from those made to Keith J.

11. Turning first to the application to review Judge Caird's decisions, the reasons given by Keith J to refuse leave have been reinforced by subsequent events. The appellant now seeks leave to apply only for a declaration. But there is no basis upon which judicial review could be granted to obtain such a declaration. There is no decision upon the stay to be reviewed and it is trite law that judicial review cannot be allowed for the purposes of making the decision which is challenged save in very unusual circumstances which are not here present.

12. In considering Keith J's refusal of leave to challenge Judge Beeson's decisions, it is necessary to emphasise her role in re-listing the case. She was then making administrative directions. The appellant's solicitors had written a letter on the day before the hearing to the Registrar of the District Court asking that Judge Beeson should not preside over any hearing concerning the case, but the transcript shows that no reference to this letter was made at the hearing. The appellant's counsel submitted that the judge should not sit on the basis that she might be called to give evidence at the trial. She dismissed that application at once without further protest or submission from counsel and then determined the provisional dates and estimated length of the trial. If the transcript is accurate - and there has been no suggestion to the contrary - she made no mention of the judge who was to try the case. Further, it is to be noted that in the notice of appeal it is not suggested that Judge Beeson directed which judge should try the case. We would add, however, that even if she had, this would not alter our view of the merits of the appeal.

13. The appellant also contended that he instructed his counsel to take points under the Bill of Rights at the hearing before Judge Beeson but his counsel failed to do so. It suffices to say that it was wholly inappropriate for counsel to make such submissions at that hearing but he is not shut out because it will be open to the appellant to raise these matters at any resumed hearing of the case.

14. The threshold for obtaining leave to apply for judicial review is low. But the requirement is important. It is a filter process whereby the court can prevent abuse of its process by trivial applications and also can prevent applications for which no practical relief or remedy can be granted and which, therefore, would be pointless and wasteful. Not without some misgivings, because we doubt whether it would be shown that the judge acted unfairly or ought to have discharged herself, we agree with Keith J's practical approach.

15. Judge Beeson performed a simple administrative task in fixing the date and length of the trial. There can be no practical benefit to the appellant in having another judge perform the same function because there is no justified complaint of the judge who is to try the case. The appellant's submission on this is wholly without foundation. To allow this application for judicial review to go to a hearing would be a purposeless waste of time and money and would disadvantage the appellant because the criminal proceedings and any new application for a stay would be considerably delayed.

16. The judge's decision refusing leave cannot be faulted. He was plainly right to do so. The jurisdiction of the High Court in judicial review proceedings over an inferior tribunal is supervisory and remedial, not disciplinary.

17. For these reasons, this appeal was dismissed.

Representation:

Mr Aaron Patrick Nattrass in person

Mr David Fitzpatrick inst'd by AGC for Respondent