Appellant v First Respondent

2 It is accepted by the parties that the appeal is by way of rehearing and that for the appellant to succeed, it is necessary to show that there is a legal, factual or other discretionary error made by the Associate Justice. The test to be adopted is set out in Applebee v Monash City Council[2], Re Ascot Vale Self-Storage Centre Pty Ltd (In Liquidation)[3], and Neely v Southern Cross Feeds Pty Ltd (No 2).[4]

3 In the event that there is an error shown in the decision, the discretion of the court, under Rule 56.02(3) of the Supreme Court (General Civil Procedure) Rules 2005, is reenlivened and stands to be exercised afresh.

4 The background facts are fully set out in the decision. I will not repeat them here. It is not suggested by the appellant that there are any factual errors contained in the decision.

5 The notice of appeal sets out seven grounds of appeal. Six grounds were relied on by the appellant. Counsel for the appellant, conveniently, grouped the grounds of appeal into three categories which she addressed in her submissions:

(1) that the Associate Justice turned the explanation of the delay by the appellant into a condition precedent to the exercise of discretion in favour of the appellant. Grounds 1, 4, 6 and 7 are grouped within this submission.

(2) that the Associate Justice erred when she found that any prejudice to the appellant would be capable of cure by other remedy. This is addressed in Ground 5.

(3) that the Associate Justice erred in concluding that further publication of the appellant's evidence would not prejudice the appellant, particularly in the light of the finding that one of the issues that would be engaged in the substantive hearing was the encroachment upon the common law right of silence. This reflected Ground 3.

6 In support of the first submission that the Associate Justice had treated the need for a satisfactory explanation of the delay as a condition precedent to jurisdiction, rather than as factor to be taken into account, counsel for the appellant pointed to [49] of the decision where the last sentence reads:

that alone would be sufficient to defeat this application for extension of time.

7 The word 'that' relates to the absence of any explanation of the further delay incurred from March 2014 when the appellant says he appreciated the consequences of the decision, and when his current solicitor confirms that he was instructed to July 2014 when the proceeding was filed, a period well in excess of the usual period of two months, for making an application for judicial review.

8 In support of this submission, counsel for the appellant highlighted that the Associate Justice had made findings that:

(1) each of the substantive grounds in the application for review was arguable;

(2) the issues to be litigated were of public importance; and

(3) there was no specific prejudice to the first and third respondents if the extension was granted.

9 It was submitted that individually and cumulatively these factors were compelling. Counsel pointed to the fact that the Associate Justice, having found these matters, still went on to refuse the application. This gave force to the proposition that her Honour considered a satisfactory explanation for delay a condition precedent to the finding of special circumstances, rather than merely a factor to be taken into account and balanced in the assessment.

10 Senior Counsel for the first respondent submitted that the decision had to be read as a whole and, when it was, the contention that her Honour treated the explanation for delay improperly, let alone as a condition precedent, must be rejected.

11 In my view it is plain, from a reading of the decision as a whole, that the Associate Justice did not treat the explanation for delay as a condition precedent to a finding of special circumstances or to the exercise of her discretion.

12 First, in [12] of the decision, her Honour identifies and lists the relevant matters stating that the whole of the circumstances in the particular case must be considered. The relevant matters noted by her Honour in that paragraph include the length of the delay and the reason for delay. Her Honour proceeded to consider and analyse each factor in great detail, giving the various factors weight for or against the application for an extension of time.

13 At [73], her Honour accepted the first and third respondents' submission that the delay in failing to commence the proceeding until July 2014 was not adequately explained. She said that this was a significant factor against the grant of leave to file out of time. It is plain, from this reference, that her Honour treated the failure to explain delay over the period until July 2014, as a factor, and not as a requirement or condition precedent.

14 I accept the submission of Senior Counsel for the first respondent that when her Honour referred to the failure to advance an explanation for the delay from March to July 2014 as alone sufficient to defeat his application for extension of time, she was referring to the weight that she gave this consideration. Her Honour was not suggesting that a failure to explain delay was a condition precedent or anything of that sort.

15 A number of other references in the decision strongly point to the same conclusion. In [86], her Honour refers to the plaintiff's case as being arguable and that this is a factor tending towards the grant of an extension of time to seek judicial review. In [87]-[90], her Honour analyses prejudice to the defendants, again clearly on the basis that this is a relevant factor which compounded the impact of further delay. In [96], her Honour accepts the appellant's submission that the importance of the issue sought to be litigated is a factor that supports extension of time. Likewise, in [109]-[110], it is clear that her Honour considered all of the factors for and against, including the absence of an explanation or satisfactory account of the delays that took place on the part of the appellant.

16 I conclude that whilst her Honour considered the failure to provide any adequate explanation of delay as an important factor in the exercise of her discretion, there is no sign, reading the decision as a whole, that she treated the need to provide a satisfactory explanation of delay as a threshold or mandatory requirement or akin to a condition precedent.

17 Accordingly, the first submission and Grounds 1, 4, 6 and 7 of the notice of appeal fail.

18 The second submission on behalf of the appellant was that the Associate Justice erred when she found that any prejudice to the appellant would be capable of cure by other remedy, being an application to the trial judge. It was submitted, amongst other things, that the appellant had no standing to make an application to the trial judge and this factor should not have weighed against him in the application to extend time.

19 Senior Counsel for the first respondent contended that this argument was misconceived. He submitted that the appellant made no submissions, orally or in writing, to the Associate Justice, that there was any specific prejudice to the appellant if the extension was refused. Further, the Associate Justice, at [109], accepted that the appellant had not shown any relevant prejudice. The possibility of curing prejudice to the appellant was not one of the factors put against the extension of time, as no specific prejudice to the appellant was shown.

20 The part of her Honour's judgment entitled 'Injustice or prejudice to the party and utility' extends from [97]-[109] of the decision. Here, her Honour considered three specific submissions made by the defendants that the plaintiff had not shown any relevant injustice or prejudice if an extension of time was refused. Her Honour said at [97] that there were three limbs to the defendants' submissions in relation to these matters.

21 I will set the defendants' submissions out in a summary form.

22 The first limb was that there was no prejudice to the appellant if the extension was not granted because the evidence had already been published to the prosecution and defence in the forthcoming County Court trial. It was said that it was incontrovertible that any harm done by publication and any risk incurred could not be undone. A second consideration was that the County Court would have control over the publication of the appellant's evidence. The use of the coercively obtained material in the trial itself was subject to the control of the trial judge.

23 The second limb of the defendants' submission was that there was no risk to safety or reputation. As to this consideration, the Associate Justice found that there was no evidence that suggested that there was a risk to the appellant's safety or reputation.

24 The third and final limb of the defendants' submission was that there were alternative means to get the evidence. The appellant was, in any event, a competent and compellable witness. It was open to the prosecution to compulsorily examine him. The Associate Justice did not think it appropriate to reach any conclusion about the third limb of the defendants' submissions.

25 In the circumstances and as set out in [109], the Associate Justice did not consider it necessary to determine the question of utility to reach the conclusions that she did. On the question of prejudice to the appellant, there was no relevant prejudice shown. In fact, there was no evidence of prejudice to the plaintiff at all.

26 As a result, the consideration of the defendants' submissions on lack of prejudice and utility, including the 'other remedy' submission, were given no weight in the ultimate decision. Thus, even if her Honour's consideration of 'other remedy' is wrong, it is immaterial. It was not a vitiating error as it was not ultimately taken into account or given any weight.

27 I conclude that, in circumstances where the Associate Justice found there was no prejudice to the appellant, the consideration is not and could not conceivably be a vitiating error.

28 I now turn to the right to silence submission. The Associate Justice found, at [95], that the power to make a non-publication direction and requirement to do so in certain circumstances as provided by s 43, is an integral or even necessary intrusion on common law rights that the Major Crime (Investigative Powers) Act 2004(Vic) effected. Her Honour went on, in [96], to accept the appellant's submission that the importance of the issues sought to be litigated is a factor that supports the extension of time.

The plaintiff asserts that the issues that he seeks to litigate in this proceeding are of great public importance because they relate to the derogation of fundamental common law rights being the right to silence and the privilege against self-incrimination.

30 At [111], her Honour accepted that the issues the plaintiff seeks to raise in the substantive proceeding are of public importance and that he has arguable matters to put. Ultimately, these factors were, in the view of her Honour, counterbalanced by other factors as she set out in the decision.

31 I am satisfied that the Associate Justice fully appreciated and gave significant weight to the civil rights of the appellant, as to which see [84], [91]-[96] and [111], and as to the right of silence, which was urged as an important consideration in favour of the appellant.

32 In my view, her Honour clearly distinguished between the matters which she described as having public importance including considerations affecting the right to silence of the appellant and considerations of utility which were urged by the defendants and which ultimately attracted no weight in her Honour's judgment.

33 In conclusion, the consideration of derogation of common law rights, including the right to silence, was given substantial weight and was described by her Honour as having public importance.

35 Counsel for the appellant did not specifically mention or press Ground 2 of the notice of appeal in argument before me. Nonetheless, it cannot be the position that the Associate Justice was legally compelled to conclude that there were special circumstances by reference only to some factual features of the matter under consideration. The Associate Justice is entitled to, and must, have regard to the whole of the circumstances as she did. It is not suggested that she made any factual error in her findings.

36 I am not satisfied that there is any error such as would enliven the discretion of this court under Rule 56.02(3). The weight to be given to relevant considerations taken into account in making a discretionary decision is quintessentially for the decision maker. Individual perspectives as to the weight that should be given by a decision maker to particular relevant factors may vary but it is not for this court, on appeal from an Associate Justice, to interfere with the weight given to particular relevant factors in the absence of demonstrated error of fact, law or as to the exercise of the discretion.

37 In the present case, there is no legal basis on which the exercise of the discretion can be revisited.

38 For these reasons, I am not satisfied that any error has been shown in the decision. The appeal from the decision of the Associate Justice must therefore be dismissed and I will order that the notice of appeal, dated 30 October 2014, is dismissed.

39 I will order that the appellant pay the costs of the appeal of the first and third respondents.

[1] This is an edited version of an oral judgment given on 30 January 2015

[2] [2013] VSC 481 [17].

[3] [2014] VSC 75 [11]-[14].

[4] [2013] VSC 238 [5].