Palmer v Magistrate McKenzie & others

A particularly complex jurisdictional issue arose for consideration in this recent matter: whether the Supreme Court had jurisdiction to hear an application for judicial review of a decision by a state magistrate in relation to a complaint charging Commonwealth offences under the Corporations Act 2001 (Cth) (as well as State charges). The proceeding had a fairly complicated history. Briefly, it had been alleged that the applicant had dishonestly used approximately $12 million, amongst other matters. He unsuccessfully attempted to have the complaint summarily dismissed, with the Magistrates Court ruling that it did not have jurisdiction pursuant to s 22A or s 103B(1) Justices Act 1886 to do so since the case involved the exercise of federal jurisdiction under Commonwealth law. Martin SJA did not agree that the Magistrate’s ruling was legally wrong or an abuse of process. His Honour clarified that state judicial review laws have no application to proceedings heard under federal legislation. Only one discrete part of the application was ordered to be transferred to the Federal Court because it fell within federal civil jurisdiction. His Honour dismissed the remainder of the applicant’s application for judicial review, and he refused to make a declaration sought by the applicant to the effect that the complaint was an abuse of process.

Martin SJA

5 June 2025

Relevantly, in addition to determining that he lacked jurisdiction to summarily dismiss the complaint at a pre-committal hearing stage, the Magistrate also stressed that, even in the event that the Magistrates Court did have jurisdiction, he would have declined to make the orders sought, since the case did not meet the threshold as “one of the clearest cases” justifying summary dismissal. [6].

The second and third respondents (the Commonwealth Director of Public Prosecutions and the Australian Securities and Investments Commission), argued that the Supreme Court had no jurisdiction to entertain the application for judicial review, noting that, amongst other matters, the original order was not a decision made under a Queensland enactment; relief was unavailable under the Administrative Decisions (Judicial Review) Act 1977 (Cth) since s 9A of that Act provides that no court has jurisdiction to hear an application under that Act in relation to a decision of the type made by the Magistrate; s 9 of that Act also denies jurisdiction to State courts including any supervisory jurisdiction being exercised pursuant to s 39 Judicial Review Act 1991 or any relief under Pt 5 Judicial Review Act 1991, and s 39B(1C)(d) Judiciary Act 1903 (Cth) is inapplicable given the Magistrate was not acting as an officer of the Commonwealth. [13].

The applicant argued that the Magistrate’s decision had been made under state law, and that remained the case even if state laws were picked up and applied in a court’s exercise of federal jurisdiction. [25], [36]. In addition, he contended that the Supreme Court retained supervisory jurisdiction under Pt 5 Judicial Review Act 1991, [37], and that ss 9 and 9A Administrative Decisions (Judicial Review) Act 1977 (Cth) were constitutionally invalid as infringing the principle in Kirk v Industrial Court (NSW) (2010) 239 CLR 531 (insofar as they purported to take away the Supreme Court’s supervisory jurisdiction over decisions involving jurisdictional error). [45].

In Kirk v Industrial Court (NSW) (2010) 239 CLR 531, the High Court held that legislation which would remove the power to grant relief on account of jurisdictional error from a state Supreme Court was beyond state legislative power, whereas legislation which denied the availability of relief for non-jurisdictional error of law appearing on the face of the record was not. His Honour noted that in that case, the Court did not consider the supervision by a state Supreme Court of the exercise of federal jurisdiction by another state court or tribunal. [50].

His Honour granted one amendment to the originating application but otherwise dismissed the balance of the application, holding:

1.That s 9 Administrative Decisions (Judicial Review) Act 1977 (Cth) precludes relief:

(a)under s 30, s 43 or s 47 Judicial Review Act 1991

(b)under s 16 Administrative Decisions (Judicial Review) Act 1977 (Cth)

(c)reliant on s 39B(1C)(d) Judiciary Act 1903 (Cth)

(d)reliant on s 39(2) Judiciary Act 1903 (Cth)

(e)reliant on s 58 Constitution of Queensland Act 2001

(f)reliant on s 1337B(1) Corporations Act 2001 (Cth). [66].

2.That s 9A Administrative Decisions (Judicial Review) Act 1977 (Cth) precludes relief:

(a)under s 30, s 43 or s 47 Judicial Review Act 1991

(b)under s 16 Administrative Decisions (Judicial Review) Act 1977 (Cth). [66].

3.That as the Magistrate was not an officer of the Commonwealth (see Director of Public Prosecutions (Cth) v Kainhofer (1995) 185 CLR 528, 541–542 (per Toohey J) and R v Murray; ex parte Commonwealth (1916) 22 CLR 437, 471), relief reliant on s 39B(1C)(d) Judiciary Act 1903 (Cth) was unavailable. [56]–[66].

4.That ss 1338B and 1338C Corporations Act 2001 (Cth) like s 79 Judiciary Act 1903 (Cth) operate to pick up relevant state legislation and apply it as federal law. In circumstances where two of the charges concerning the applicant alleged breaches of the Corporations Act 2001 (Cth), accordingly the decision made by the Magistrate was made under both the Judiciary Act 1903 (Cth) and Corporations Act 2001 (Cth). [35].

5.That neither s 9 nor s 9A Administrative Decisions (Judicial Review) Act 1977 (Cth) operate to either curb or restrict the Supreme Court’s inherent supervisory jurisdiction. Instead, they only confine the jurisdiction of courts with respect to certain applications under the Administrative Decisions (Judicial Review) Act 1977 (Cth). They operate in a dissimilar manner to the facts considered by the court in Kirk v Industrial Court (NSW) (2010) 239 CLR 531 (where a privative clause was examined which purported to immunise a relevant decision from any appeal, review etc in any court). Neither s 9 nor s 9A oust the supervisory jurisdiction of the Supreme Court since so far as federal jurisdiction is concerned, the Supreme Court only has the jurisdiction conferred upon it and that conferral can be potentially affected by such conditions as the Commonwealth Parliament decides to impose. [51].

Disposition

The court allowed an amendment to the application, otherwise dismissing it entirely as beyond jurisdiction.

A Jarro