Appellant v First Respondent Second Respondent

1 On 2 April 2011, the first respondent was intercepted by the police informant while riding a motorcycle on Plenty Road, South Morang. The first respondent's speed was detected at 94kph. It was alleged that the first respondent was travelling through a roadworks area with a displayed speed zone of 40kph.

2 A contested hearing before a judicial registrar was conducted at the Heidelberg Magistrates' Court which concluded on 6 December 2012. The judicial registrar determined he could not be satisfied beyond reasonable doubt the speed signage displayed in the roadworks area complied with the management plan for the roadworks. The judicial registrar found the first respondent was not guilty of travelling at 94kph in a 40kph zone, but was guilty of travelling 94kph in a 80kph zone (being the maximum speed on that part of Plenty Road). No conviction was recorded. The first respondent was ordered to pay a fine of $244, and costs were awarded against the Chief Commissioner of Police in the sum of $8,055.

3 The police prosecutor at the hearing before the judicial registrar, Senior Constable Bradley Beale, pursuant to s 16K of the Magistrates' Court Act 1958 ("the Act"), lodged a request for review of the hearing and determination of the judicial registrar, supported by affidavit material, on 21 December 2012. The request for review was lodged one day outside the 14 day time limit allowed for by r 5(3) of the Magistrates' Court (Judicial Registrars) Rules 2005 ("the Rules").

4 On 3 January 2013, Magistrate Wighton granted the application for review. The certified extract of the Magistrate's order does not record an order for an extension of time for making the application. Further, it is apparent the application was granted by the Magistrate in chambers.

5 On 17 April 2013, the matter came on for re-hearing before Magistrate Pithouse. The Magistrate accepted a plea of "autrefois convict (or double jeopardy)". The stay previously made concerning the orders of the judicial registrar was revoked and the Chief Commissioner of Police was ordered to pay costs in the amount of $6,600.

6 The appellant seeks to appeal the order of the Magistrates' Court made on 17 April 2013, and the acceptance by the Magistrate of the special plea of autrefois convict. The appellant appeals to this Court on a question of law pursuant to s 272 of the Criminal Procedure Act 2009 and by way of an application for judicial review pursuant to r 56.01 of the Supreme Court (General Civil Procedure) Rules 2005.

7 These appeals involve questions of statutory construction and procedure in the Magistrates' Court. It is not disputed that s 16K of the Act applies in criminal proceedings. It is also not disputed that s 16K provides for de novo review. What is disputed is whether, in criminal proceedings, the police informant may seek such a review and further, whether the process of seeking review of the decision of a judicial registrar is voided as a consequence of the failure to comply with process and procedures of the Act and the Rules.

(1) The Court constituted by a magistrate may direct that the hearing and determination of a proceeding by the Court constituted by a judicial registrar be reviewed by the Court constituted by a magistrate.

(2) A direction may be given under subsection (1) at the request of a party to the proceeding or by the Court of its own motion.

(3) A review under this section is to be conducted as a hearing de novo.

(1) A request under section 16K of the Magistrates' Court Act 1989 for the review of the hearing and determination of a proceeding by the Court constituted by a judicial registrar must be in Form 1.

(2) The request must be accompanied by an affidavit that must state the reasons for the request.

(3) The request and the affidavit must be filed within 14 days after the day on which the order was made.

(4) The Court may extend time under paragraph (3) before or after the time expires, whether or not a request for the review is made before the time expires.

(5) The request for the review must be determined by the Court -

(a) after consideration of the request and the accompanying affidavit; and

(b) unless the Court otherwise directs, without notice to any person.

All proceedings in the Court are to be conducted in open court, except where otherwise provided by this or any other Act or the Rules.

11 In submissions to this Court, Mr C. Young for the appellant contended that "the special plea of autrefois convict is not available in summary proceedings...".[1] Nevertheless, the appellant accepted "that a defence is available based on a plea in bar" and thus the appellant does not take issue on this particular point.

12 The appellant in this appeal contends the proceeding before the Magistrate was a hearing de novo and that the special plea was founded upon the orders of the judicial registrar which were the very subject of the hearing de novo[2] and therefore the special plea was of no application. The appellant, in submissions, sought to make good the following propositions:

(a) s 16K of the Act is available to seek review of decisions made by judicial registrar in criminal proceedings;

(c) the review was a hearing de novo, thus all issues must be retried.

13 The appellant accepted in argument that a statute will not be construed as altering fundamental rules of criminal justice, including the rule against double jeopardy, absent clear words or necessary intendment. However, the appellant submitted the rule against double jeopardy was not applicable in the face of what was submitted to be a substantial history of legislative provisions of appeals by informants against acquittals, together with the provisions of s 16K of the Act.

14 The appellant contends the plain words of s 16K(3) of the Act require that a review hearing be conducted as a hearing de novo; to deny one party this right of review "would lead to a very incomplete guarantee of judicial independence if one party to a proceeding was not able to enforce the supervision and control of the court". Mr Young submitted that if a review was to be truly a hearing de novo, there could be no place for a plea in bar. It was further submitted that fundamental to the delegation of judicial functions to a judicial registrar is the right of review, to both parties, in a criminal proceeding from the person to whom the power was delegated to the actual repository of that power; in these circumstances, the Magistrate.

15 In Harris v Caladine,[3] the High Court considered s 37A(1) of the Family Law Act 1975 which empowered judges of that Court to make rules delegating to registrars certain powers of the Court. Order 36A, r 7(4) provided that: "A court reviewing an exercise of power by a ... registrar shall proceed by way of a hearing de novo but may have regard to the proceedings, including the evidence given [before the registrar]". In considering the permissibility of such delegation, Mason CJ and Deane J stated:

It seems to us that, so long as two conditions are observed, the delegation of some part of the jurisdiction, powers and functions of the Family Court as a federal court to its officers is permissible and consistent with the control and supervision of the Family Court's jurisdiction by its judges. The first condition is that the delegation must not be to an extent where it can no longer properly be said that, as a practical as well as a theoretical matter, the judges constitute the court. This means that the judges must continue to bear the major responsibility for the exercise of judicial power at least in relation to the more important aspects of contested matters. The second condition is that the delegation must not be inconsistent with the obligation of a court to act judicially and that the decisions of the officers of the court in the exercise of their delegated jurisdiction, powers and functions must be subject to review or appeal by a judge or judges of the court. For present purposes it is sufficient for us to say that, if the exercise of delegated jurisdiction, powers and functions by a court officer is subject to review or appeal by a judge or judges of the court on questions of both fact and law, we consider that delegation will be valid. Certainly, if the review is by way of hearing de novo, the delegation will be valid. [4]

...provided that the exercise of the power is subject to review by way of a de novo hearing by a justice or judge of that court ... . Nor, in my opinion, will anything less than a hearing de novo to review the exercise of the power by the officer be sufficient. That is to say, appellate review is an insufficient condition of the delegation of the exercise of the power; there must be a complete rehearing of the facts and the law as they exist when the Justice or judge reviews the order made by the officer. Otherwise, the officer and not the Justices or judges of the court would be exercising the original jurisdiction of the court. [5]

17 Mr Young referred me to the Minister's Second Reading Speech of 21 April 2005 concerning the Magistrates' Court (Judicial Registrars and Court Rules) Bill where the then Attorney-General, Mr Hulls, made specific reference to the two conditions referred to (in the judgment of Mason CJ and Deane J in Harris) being incorporated into the provisions of the Bill.

18 Thus, so the appellant contends, nothing in the principles enunciated by the Court in Harris and nothing in s 16K of the Act can be seen as limiting the right of review to one party, in this case, limiting the right of review to an accused and denying such right to the police informant; indeed, to limit review in such a way, said Mr Young, would be inconsistent with the principles of Harris.

19 Mr O.P. Holdenson QC for the first respondent submitted that the appeal should fail for a number of reasons:

(a) the appellant's contended construction of s 16K of the Act offends the common law principle against double jeopardy;

(b) the application for review of the decision of the judicial registrar was not made within time; i.e. "within 14 days after the day on which the order was made" pursuant to r 5(3) of the Rules. The date of the request for direction for review of the judicial registrar's order was 21 December 2012. The date of the order of the judicial registrar was 6 December 2012. It was not contested by the appellant that this was one day out of time;

(c) the order of the Magistrate of 3 January 2013 records only that an application for review of the judicial registrar's decision was granted. No order was made for an application to extend time for review of the order of the judicial registrar;

(d) in the order granting the application for review of the judicial registrar's decision, the applicant is referred to as police prosecutor Bradley Beale, not the police informant, Thomas John Bateman. Beale was not "a party" as is required by s 16K of the Act;

(e) the application for review was granted by the Magistrate on 3 January 2013 "in chambers" in contravention of s 125(1) of the Act, which states that all proceedings "are to be conducted in open court".

20 Mr Holdenson submitted that the words "a party" in s 16K(2) of the Act do not include a police informant to an unsuccessful prosecution. To construe the section in such a way, it was contended, would breach common law double jeopardy rules and the ability of an accused to plead the special "plea in bar".

21 Mr Holdenson said the abrogation of a fundamental common law principle, the rule against double jeopardy, can only be undertaken by statute expressly or by necessary implication and not by general words. This could not happen "without [the legislature] expressing itself with irresistible clearness". Further, "to give any such effect to general words simply because they have that meaning in their widest, or usual, or natural sense, would be to give them a meaning in which they were not really used".[6]

22 In Thompson v Mastertouch TV Service Pty Ltd,[7] Deane J (with Smithers and Riley JJ in agreement) dealt with provisions of the Federal Court of Australia Act 1976 conferring jurisdiction on the Court to hear appeals. The Court held that:

(a) the general words of the relevant sections concerning provision of jurisdiction to hear appeals from judgments of the Court constituted by a single judge;[8]

(b) to, in the exercise of its appellate jurisdiction, affirm, reverse or vary the judgment appealed from or set aside the verdict and judgment in a trial on indictment and order a verdict of not guilty or other appropriate verdict[9] with other general words,[10]

could not be construed as removing, altering or modifying fundamental common law rights.[11] Deane J stated:

I consider that the conclusion is unavoidable that the general words used in s 24(1)(a) and (b) to confer jurisdiction 'to hear and determine appeals' do not confer jurisdiction to hear and determine appeals in circumstances where the existence of the jurisdiction and the right to invoke it would be contrary to a fundamental principle relating to the circumstances in which an appeal should exist. The right of the subject which finds expression in that principle, namely, the right to be spared the jeopardy of an appeal from an acquittal after a hearing on the merits of a criminal charge by a court of competent jurisdiction, is not, upon proper principles of statutory interpretation, to be swept aside by the general terms of a statute which has no underlying policy requiring that such terms be given such an effect and which contains nothing that points clearly or unmistakably or, indeed, at all, to that effect as having been either contemplated or intended. [12]

23 The appellant contends there is a history of the principle relating to double jeopardy in matters of summary jurisdiction being set aside. In Davern v Messel,[13] Gibbs CJ (with Wilson and Dawson JJ in agreement) observed:

A decision of a court of summary jurisdiction discharging a complaint or information has never been regarded with the same sanctity as a verdict of a jury. The consistent trend of legislation, both in England and Australia, has been towards allowing the prosecution to appeal against an order of the magistrate or justices dismissing a charge and empowering the court on appeal to quash the order and to direct the defendant to be convicted ... . It is apparent that it is no longer exceptional, or thought to be contrary to public policy, in Australia, to allow an appeal from an acquittal by a magistrate or justices.[14]

24 After review of numerous authorities, Mason and Brennan JJ in Davern stated:

The Australian cases indicate that our courts have readily perceived indications of statutory intention to confer a right of appeal on a prosecutor from an acquittal in summary proceedings. There has been less reluctance to concede a right of appeal from an acquittal in summary proceedings than from an acquittal on indictment, for the very good reason that a jury verdict of not guilty has been traditionally regarded as inviolate.[15]

25 While the judgments in Davern, recognised a legislative trend to confer a right of appeal on the prosecution in summary proceedings, the judgments also affirmed the rule against double jeopardy and that in considering legislation "no statute will be construed as abrogating a fundamental principle of the common law unless an intention to do so is clearly expressed".[16] The words of the statute "must be clear, express, and free from ambiguity".[17]

26 In Director of Public Prosecutions v Garde-Wilson,[18] Bongiorno AJA (with Maxwell P and Ashley JA in agreement) considered s 17(2) of the Supreme Court Act 1986, which provided that "unless otherwise expressly provided by this or any other Act, an appeal lies to the Court of Appeal from any determination of the Trial Division constituted by a judge". Garde-Wilson was convicted of contempt of court and no further penalty was imposed by the trial judge. The DPP appealed, alleging inadequacy in the penalty imposed. The appeal was dismissed. Bongiorno AJA stated that a Crown right of appeal against sentence or acquittal is contrary to fundamental principle. His Honour referred to Thompson and Davern, and concluded:

The court considered that the clearest possible terminology would be required to confer such a right. Similarly with respect to appeals against sentence, the High Court has repeatedly held that a specifically conferred power is required [citations omitted]. Express authorisation of such an appeal by the legislature is required to displace the general presumption against the Crown enjoying a right of appeal even in respect of sentence. [19]

27 At face value, the words of s 17(2) of the Supreme Court Act might be thought to be explicit "... an appeal lies to the Court of Appeal from any determination of the Trial Division constituted by a judge". However, underscoring the importance of precise words of legislation to remove rights, Bongiorno AJA considered the words of s 17(2) of the Supreme Court Act were "very general". He stated that to construe what he described as:

The very general right of appeal conferred by s 17(2) upon a person affected by a determination of the Trial Division of the Supreme Court as extending to the Crown in respect of a sentence imposed by the court in a contempt case would radically alter the general law to the detriment of the subject. To achieve such a result the legislature would have needed to use specific language directed specifically to an extension of the Crown's right to appeal in a criminal case to a case such as the present. It not having done so, notwithstanding the general words of s 17(2), it follows that the Crown has no right of appeal in this case.[20]

28 Whether the proceeding be indictable or summary, the words of a statute conferring a right of prosecution appeal against acquittal (or conviction) must be clear and unambiguous. Gibbs CJ made this point unequivocally in Davern:

Notwithstanding these decisions, there is in my question no sufficient reason to question the rule, laid down in Benson v Northern Ireland Road Transport Board, that a statute will not be understood to confer a right of appeal from a decision dismissing a criminal charge unless it does so distinctly. It is a rule to which it may be assumed the parliamentary draftsmen have had regard in framing legislation enacted since that time. [21]

29 In the particular circumstances of the legislative provision I am required to consider in this appeal, I am of the opinion that the intent of the legislature in enacting s 16K of the Act was to provide all parties, including a police informant, with a right of appeal by way of a hearing de novo before a magistrate from a proceeding determined by a judicial registrar. In my opinion, the words of s 16K of the Act establish such a right "distinctly".

30 As the authorities discussed above demonstrate, fundamental to the lawfulness of the delegation of magistrates' jurisdiction to judicial registrars is the requirement that the delegated jurisdiction:

(a) not impinge on judicial independence, that the delegation is not to the extent that it can be said judges no longer constitute the court;

(b) is subject to review or an appeal by a magistrate by way of a hearing de novo.

31 In Macleod v Australian Securities and Investment Commission,[22] Gleeson CJ referred to the principle of "double jeopardy" being of "notoriously imprecise meaning and application".[23] His Honour stated that the principle cannot direct the meaning of legislation that is clear on its face.[24] Gleeson CJ referred to the decision of Doyle CJ in Australian Securities and Investments Commission v Vis[25] and set out his Honour's statement concerning Davern:

Nor, in the present case, are there textual reasons which would lead one to conclude that a power to appeal is not conferred. All that is left is the exceptional nature of prosecution appeals. But, as Mason and Brennan JJ said in Davern, 'courts have readily perceived indications of statutory intention to confer a right of appeal on a prosecutor from an acquittal in summary proceedings'. In this respect, the case is finely balanced. In the absence of any textual indications that a right of appeal is not conferred, and bearing in mind the approach generally taken to rights of appeal in summary matters, I conclude that [the ASC] does have the power to appeal that it has exercised in the present case.[26]

32 The underlying policy of s 16K of the Act as indicated in the words of the section itself and the statutory intention demonstrated in the Second Reading Speech is that magistrates retain control and supervision of the Court's jurisdiction. That necessarily means magistrates retain control and supervision of judicial registrars. Thus, by s 16K(2) of the Act, the Court of its own motion may seek a direction for review of a decision of a judicial registrar. It is, in the end, incomprehensible that the Parliament would establish a regime for all parties, apart from a police informant in a criminal proceeding (of minor nature), to seek review of a decision of a judicial registrar, particularly in circumstances where such review, by hearing de novo, is mandatory to the effective delegation of judicial power. In my opinion, there is no ambiguity in s 16K of the Act and the establishing of a review process of the decisions of judicial registrars. As was stated by Mason CJ and Deane J in Harris:

The importance of insisting on the existence of review by a judge or an appeal to a judge is that this procedure guarantees that a litigant may have recourse to a hearing and a determination by a judge. In other words, a litigant can avail him or herself of the judicial independence which is the hallmark of the class of court presently under consideration. [27]

33 Such review hearing is a hearing de novo and, in such circumstances, a defence based on a plea in bar is not available. A hearing de novo involves the exercise of the original jurisdiction and "the informant or complainant starts again and has to make out his case and call his witnesses".[28]

34 I do not accept the submission of Mr Holdenson that the order of Magistrate Pithouse of 17 April 2013 where he accepted "the plea of autrefois convict" (or double jeopardy) did not constitute a "final order" as required under s 272(1) of the Criminal Procedure Act. Mr Holdenson relied upon the judgment of Gillard J in Falkner v Barba[29] as supporting the proposition "at least by implication" that the appropriate order for the Magistrate to make included the dismissal of the charge. I do not consider the judgment of Gillard J justifies such an implication (his Honour did not specifically consider the point).

35 In the New South Wales Court of Criminal Appeal case of R v Stone,[30] Hunt AJA (with Hislop J in agreement) considered that the acceptance by a judge that a plea in the nature of autrefois convict had been made out must be the same as a jury's verdict on such a plea, that is the ruling has the effect of discharging the accused.[31] The Court held, in Stone, that such a ruling was "a final decision which disposed of the proceeding against the respondent".[32] In this matter it is my opinion that the orders of Magistrate Pithouse had the effect of discharging the first respondent and that the orders were "final" for the purposes of s 272(1) of the Criminal Procedure Act.

36 The first respondent submits that s 26 of the Charter of Human Rights and Responsibilities Act 2006 ("the Charter") gives legislative expression to the common law double jeopardy rule and supports the respondent's contention that s 16K of the Act should not be construed as conferring a right of de novo review on an unsuccessful police informant. Section 26 of the Charter provides:

A person must not be tried or punished more than once for an offence in respect of which he or she has already been finally convicted or acquitted in accordance with the law.

(1) So far as it is possible to do so consistently with their purpose, all statutory provisions must be interpreted in a way that is compatible with human rights.

(2) International law and the judgments of domestic, foreign and international courts and tribunals relevant to a human right may be considered in interpreting a statutory provision.

(3) This section does not affect the validity of -

(a) an Act or provision of an Act that is incompatible with a human right; or

(b) a subordinate instrument or provision of a subordinate instrument that is incompatible with a human right and is empowered to be so by the Act under which it is made."

37 In Slaveski v Smith,[33] the Court of Appeal (Warren CJ, Nettle and Redlich JJA) considered questions as to the approach of construction of statutes in the context of provision of rights under the Charter. The Court of Appeal referred to the High Court decision Momcilovic v R.[34] In that case, the High Court examined the operation of s 32(1) of the Charter. The Court of Appeal summarised the holding in Momcilovic as follows:

...French CJ, Crennan and Kiefel JJ and Gummow J, Hayne J and Bell J each held in separate judgments that s 32(1) does not require or authorise a court to depart from the ordinary meaning of a statutory provision, or the intention of Parliament in enacting the provision, but in effect requires the court to discern the purpose of the provision in question in accordance with the ordinary techniques of statutory construction essayed in Project Blue Sky Inc v Australian Broadcasting Authority.[35]

38 Their Honours in Slaveski concluded as to the effect of s 32(1) of the Charter:

Consequently, if the words of a statute are clear, the court must give them that meaning. If the words of a statute are capable of more than one meaning, the court should give them whichever of those meanings best accords with the human right in question. Exceptionally, a court may depart from grammatical rules to give an unusual or strained meaning to a provision if the grammatical construction would contradict the apparent purpose of the enactment. Even if, however, it is not otherwise possible to ensure that the enjoyment of the human right in question is not defeated or diminished, it is impermissible for a court to attribute a meaning to a provision which is inconsistent with both the grammatical meaning and the apparent purpose of the enactment.[36]

39 For the reasons outlined above, it is my opinion the words of s 16K of the Act and the statutory intention demonstrated by the Second Reading Speech enable a police informant to seek review by way of hearing de novo to a magistrate from the decision of a judicial registrar. Whilst the Charter embraces the common law principle against double jeopardy, that does not permit a construction of s 16K of the Act that is inconsistent with the "grammatical meaning and apparent purpose" of that section.[37]

40 Mr Holdenson referred me to the decision of the Supreme Court of Canada in Thibault v Corporation Professionnelle des Medecines du Quebec.[38] The case concerned the dismissal by a Court of Sessions of a complaint of unlawfully practising medicine filed against the appellant by the respondent. The appellant argued in the Supreme Court that a statutory provision[39] allowing an appeal from the dismissal by way of a trial de novo was contrary to the Canadian Charter of Rights and Freedoms s 11(h), which provides: "Any person charged with an offence has the right ... if fully acquitted of the offence not to be tried for it again ...". This is a provision similar to s 26 of the Victorian Charter. The Court held the right of a prosecutor or complainant to appeal from an acquittal by way of trial de novo was contrary to s 11(h) of the Canadian Charter and the acquittal by the Court of Sessions was restored.

41 The respondent urged me to adopt a construction of s 16K of the Act consistent with the reasoning of the Court in Thibault, "a construction ... which is compatible with s 26, meaning Mr Bryar is not to be tried more than once for an offence". I cannot agree with such a construction. As discussed above, s 32(1) of the Charter requires me to give a construction to s 16K of the Act that is consistent with grammatical meaning and apparent purpose; as I have already decided the meaning and purpose of s 16K of the Act is consistent with the police informant having an entitlement, subject to the approval of a magistrate, to seek review of the decision of a judicial registrar. Further, I agree with the submission made on behalf of the appellant that the steps required of the police informant and the Court in permitting a review of a judicial registrar distinguish s 16K of the Act from the provisions of the Summary Convictions Act under consideration in Thibault, where the prosecutor could appeal directly to the Supreme Court. Section 16K of the Act provides for review of a judicial registrar's decision only after a magistrate has considered the application and the affidavit setting out the reasons for the request for the review. Thus, the Court retains control of the process in distinction to the situation in Thibault.

42 When the review came on for hearing in the Magistrates' Court on 17 April 2013, there was discussion between the Magistrate and the police prosecutor concerning the manner in which the application for a review of the judicial registrar's decision was granted. The police prosecutor stated to the Magistrate that he had "run it by" his colleague, Leading Senior Constable Beale (police prosecutor before the judicial registrar) and "the application was granted in chambers by Mr Wighton".[40] The application for review was granted by Magistrate Wighton on 3 January 2013. On 17 April 2013, Magistrate Pithouse, the magistrate presiding over the review hearing in the Magistrates' Court, asked how the application could be granted "in chambers"? Mr Holdenson before me, asked the same question. He contends an application under s 16K of the Act must be dealt with in open court. He relies on s 125(1) of the Act, which requires all proceedings in the Court to be conducted in open court, except where otherwise provided. I was not directed to, and cannot find, any enactment which enables the Court to hear an application for review of the decision of a judicial registrar in a criminal matter, other than in open court.

43 Gillard J, in Lednar & Ors v The Magistrates' Court & Anor,[41] had cause to consider s 125(1) of the Act in circumstances of applications to the Magistrates' Court for orders directing a person found guilty of certain offences to undergo a forensic procedure to obtain a body sample. The orders made concerning the collection of body samples from such persons were made "in chambers". The plaintiffs sought relief by way of judicial review, and one of the issues considered by his Honour was s 125 of the Act. His Honour found:

I am satisfied that in making orders against each plaintiff in Chambers instead of open court constituted a breach of the mandatory obligation under s 125 that all proceedings are to be conducted in open court. [42]

44 Mr Young submitted that s 16K of the Act and the rules of court "show a necessary implication to displace s 125". He contended that because s 16K of the Act concerned the Court exercising its jurisdiction of supervision and control of judicial registrars, because the review can be undertaken without notice and on the Court's own motion, that such matters are sufficient to support the implication that s 125(1) of the Act does not apply, and that the application for review of the judicial registrar's decision could be made in chambers.

45 In considering the mandatory words of s 125(1) of the Act, I do not accept this submission of the appellant. That the application can be made without notice on one view supports, rather than detracts from, the requirement such application be made in open court. It is a well established principle of the common law that the administration of justice take place in open court. Whilst that rule is subject to exceptions,[43] there is nothing to suggest any such exception exists to overcome the mandatory injunction of s 125(1) of the Act.

46 Mr Young referred me to r 1.20 of the Magistrates Court (General Civil Procedure) Rules 2010. Rule 1.20(r) provides:

Unless the court otherwise orders, the following proceedings need not be conducted in open court: any application, notice of which is not required to be given by or under any Act, or these rules, to another person, whether or not a party.

47 Mr Young submitted this rule provided a strong indication that the kind of jurisdiction provided for by s 16K of the Act is the sort of jurisdiction that can be dealt with in chambers. It is submitted for the appellant that this rule should be seen as a strong indication that in the criminal context the proceeding can be adjudicated otherwise than in open court.

48 No similar provision is contained in the Magistrates' Court (Criminal Procedure) Rules 2009 ("Criminal Procedure Rules"). In my opinion, the omission of a like rule from the Criminal Procedure Rules is telling against the argument of the appellant; the failure to replicate the Civil Procedure r 1.20 in the Criminal Procedure Rules can be interpreted as emphasising the common law principle of open justice in criminal proceedings and thus mandating the requirements of s 125(1) of the Act.

49 Finally, the appellant submitted that if it were wrong concerning the open court submission, the order of the Magistrates' Court of 3 January 2013 is voidable and not void. The appellant submitted that there would be no purpose in voiding the order of 3 January 2013 where the review subsequently took place. Gillard J considered a similar argument in Lednar.[44] His Honour in that case concluded, after a review of relevant authority:

The legislature has not expressly provided that a breach of s 125 results in the proceeding being void, and in my opinion following the reasoning of the Privy Counsel in McPherson v McPherson supra, that the effect of a breach of s 125(1) of the Magistrates' Court Act 1989 is that the order made is voidable at the instance of the person affected by it. [45]

50 The question Gillard J then dealt with was whether the effluxion of time and the execution of the orders in respect of two of the three plaintiffs in the matter before him made the orders voidable, rather than void. In all cases, his Honour found that the effluxion of time did not result in the loss of the right of each plaintiff to quash the orders made on the basis of breach of s 125(1) of the Act. His Honour recognised:

(a) that notice of the order to the person affected and the occurrence of an event thereafter making it impossible to set aside the order and restore the status quo will likely result in a refusal to set the order aside;[46]

(b) that delay itself may be a discretionary basis for refusing to quash a voidable order;[47]

(c) a court will refuse to quash an order if the effect of it would be to achieve nothing.[48]

51 Nevertheless, his Honour found in the circumstances of the matter before him that each plaintiff was entitled to have the order made against him quashed. His Honour noted that because an order is voidable does not mean the person affected loses his right to set it aside. In Lednar, two of the three appellants had provided body samples, but the Court "had the power to order that the samples be delivered up for destruction".[49] Thus, the circumstances of Lednar favoured the exercise of discretion to quash the orders.

52 In Ho v Lonergan,[50] the Western Australian Court of Appeal (Pullin, Newnes and Murphy JJA) considered s 45 of the Magistrates' Court (Civil Proceedings) Act 2004 (WA) which, in all material respects, was in the same terms as s 125(1) of the Act. In that case, the Magistrate failed to deliver a judgment in open court as required by the section. The Magistrate sent the judgment to the parties by post. The Court of Appeal observed the Magistrate had power to make orders of the sort made, the Court's jurisdiction had been properly invoked and, thus, what occurred was an irregularity but that the orders made were effective unless set aside.[51] The Court stated:

In our view it could not have been intended that any failure to comply with s 45 of the MCCP Act has the effect that proceedings are of no effect.[52]

53 Mr Young submitted there was no purpose in voiding the order of Magistrate Wighton made on 3 January 2013. He contended both delay on the part of the first respondent and futility militated against the exercise of my discretion to quash the order.

54 The certified extract of the order of Magistrate Wighton granting leave to review the decision of the judicial registrar gives no hint that the order was made in chambers. As discussed above, it was not until the hearing on 17 April 2013 that the issue of the order of 3 January 2013 being made in chambers was raised by Magistrate Pithouse.[53] The point was not pursued by counsel for the first respondent before Magistrate Pithouse. Later, in the review hearing when his Honour asked what the proceeding was about, counsel for the first respondent indicated that the issue to be determined was "the fact that police are, in essence, trying to have a fresh crack at my client".[54] Further, this issue was not addressed in the first respondent's written outline of submissions to this Court. The first time that s 125(1) of the Act appears to have been taken up by the first respondent was on the morning of the hearing before me when Mr Holdenson advised Mr Young that he would make submissions on the point.

55 The failure of the first respondent to take up the point before the Magistrate on 17 April 2013 when it became known the order was made in chambers is a factor against now quashing the order of 3 January 2013. Events have moved on with the hearing of 17 April 2013. The status quo cannot be restored.[55] The review hearing has taken place. Finally, if I were to quash the order of 3 January 2013, the Rules would not prevent a further application to extend time for review of the judicial registrar's decision to be made by the police informant. Thus, there is the potential that an order quashing the order of 3 January 2013 would be futile.

56 In the circumstances of this case, it is not appropriate to quash the order of 3 January 2013 on the ground that it was made in chambers in contravention of s 125(1) of the Act.

57 Rule 5(3) of the Rules requires that a request for review pursuant to s 16K of the Act must be filed with a supporting affidavit within 14 days after the day on which the order was made. The request for direction for review of the judicial registrar's decision is also dated 21 December 2012.[56] The affidavit in support of the request for review is dated 21 December 2012. It was not in dispute that the application for review was filed one day out of time.

58 The failure to comply with r 5(3) of the Rules was explained by the police prosecutor before the judicial registrar, Leading Senior Constable Beale, in his affidavit in support of the application for review as follows:

When preparing for this application I was not aware that this request for direction needed to be filed within 14 days. I required approval from my supervisors and as such took 14 days to prepare this application. I am aware that the court may extend the 14 days either before or after the time limit has expired, and given the circumstances I request extension of the filing time by one day.

59 Mr Beale was seeking to utilise the provisions of r 5(4) of the Rules whereby the Court may extend time before or after the 14 days expires, whether or not the request for review is made before the time expires. Clearly, the affidavit brought to the attention of the Magistrate that was to determine whether or not to grant the request for review the fact that Mr Beale (on behalf of the police informant) was seeking an extension of time.

60 Mr Holdenson referred to the certified extract of the order of Magistrate Wighton of 3 January 2013. The extract states "Application granted", referring to the application for review. There is no order for an extension of time; the first respondent submits that a formal order for extension of time is a necessary precursor to an order granting a review of the judicial registrar's decision.

61 At the re-hearing before Magistrate Pithouse on 17 April 2013, the issue of extension of time was raised. The following discussion occurred between the Magistrate and Mr Foster, then counsel for the first respondent:

MAGISTRATE: But the application was for review, not for an extension of time.

FOSTER: That's correct, Your Honour. The only application was made in the affidavit itself.

MAGISTRATE: But does it say the application actually that - - -

FOSTER: Here, here are the relevant extracts [the rules].

MAGISTRATE: The app -, that there has to be an application or can it be in the affidavit?

[The Magistrate was then handed a copy of the request for a direction for re-hearing and a copy of the affidavit]

...

MAGISTRATE: Let's not beat about the bush, what's this about? Costs or what?

FOSTER: Well, more so than costs, Your Honour. What it's about is that possibly of my client losing his licence for 12 months, the fact that my client's appealed an acquittal on that charge and the fact that police are, in essence, trying to have a fresh crack at my client.[57]

62 Later, in delivering his ruling upon the re-hearing, Magistrate Pithouse stated as follows:

Particularly in light of the procedure that is to be adhered to with regard to the obtaining of an order for the purposes of review. I make it quite clear that I'm not here to review the decision of Magistrate Wighton and I think it is conceded - and I'll stand corrected if not - but I think it is conceded by counsel for the accused that the order for review - withdraw that. The review which has been ordered pursuant to s 16K of the Magistrates' Court Act has been properly and regularly obtained. And that if it were not so, it is not a matter for me to determine. And that should be otherwise determined in another place.[58]

63 Mr Holdenson submitted that counsel for the first respondent at the re-hearing never conceded the granting of the application for review of the decision of the judicial registrar had been regularly obtained. I do not agree with this submission. The re-hearing proceeded on the basis the application granting it had been regularly obtained. Certainly, no argument was advanced on behalf of the first respondent that the granting of the application for review was irregular. In any event, for the reasons that follow, it is not material whether counsel for the first respondent made the concession or not.

64 Mr Young submitted the affidavit in support of the application for review unambiguously raised the need for an extension of time and that it is apparent the Magistrate was aware of the necessity to extend time. He further submitted there was nothing to suggest an extension of time was not granted by the Magistrate ordering the application for review.

65 Rule 5(5) of the Rules requires the Magistrate to determine the request for review "after consideration of the request and the accompanying affidavit". There is nothing to indicate the Magistrate did not determine the request for review in the manner prescribed by the Rules and specifically after consideration of the affidavit as mandated by the Rules, which requested the extension for the filing of the request for the review by one day.

66 In my opinion, it is not a requirement of the Rules that the Magistrate, in making the order concerning the review "Application Granted" specifically identify an extension of time for the granting of the application by one day. Form 1, the form required to be used for requesting a review of the decision of the judicial registrar, makes no provision for a specific request for an extension of time as permitted by r 4 of the Rules. I read the Magistrate's order of "Application Granted" as encompassing the processes required by r 5(4) and (5) of the Rules and incorporating an extension of time of one day as requested in the affidavit considered by the Magistrate. The order of the Magistrate granting the application of necessity meant the Magistrate had extended time for filing of the request and the affidavit.

67 The request for direction for review of the judicial registrar's decision was prepared and signed by the police prosecutor, Mr Beale. The form was signed by Mr Beale as, "the party making the request". The affidavit in support of the application was sworn by Mr Beale and it was he that undertook legal research, sought approval from superiors to institute the review, and requested in the affidavit a review of the judicial registrar's decision.

68 The first respondent submits that what is demonstrated by the application and affidavit is that the wrong person made the application. Relying on the words of s 16K(2) of the Act, Mr Holdenson said that it is only "a party to the proceeding" who can make the request for a direction for review, and the police prosecutor Beale was not a party. Thus, it is contended there was a jurisdictional error because the Magistrate was not empowered to grant an application made by a person who was not a party. This submission was not put to the Magistrate at the re-hearing on 17 April 2013.

69 The appellant contends it is apparent from all the materials that Mr Beale, as a police prosecutor, was acting on behalf of the police informant Senior Constable Bateman.

70 Senior Constable Bateman is identified as a party on the Form 1 request for review. That form states, in part: "Take notice that the abovementioned police informant/plaintiff/defendant requests under 16K of the Magistrates' Court Act a direction ...". I do not accept that a police prosecutor cannot fill out a form and submit an affidavit on behalf of the police informant in whose name the request is commenced, in a similar way to a solicitor filling out such a form and swearing an affidavit in support on behalf of a client. To interpret the word "party" in the rule as excluding a police prosecutor acting on behalf of a police informant in a police matter is an interpretation that is overly restrictive and technical.

71 In considering the various submissions of the first respondent concerning the procedural steps involved in an application for review of a judicial registrar's decision, I have, as far as the language of the Act and the Rules permits, adopted a flexible approach to give effect to statutory purpose. In MAC v R,[59] Nettle JA observed (in different circumstances):

Furthermore, errors and omissions in compliance with statutory procedural requirements are bound to occur; especially when legislation is complex, the volume of business is high and resources are limited. It is, therefore, not a question of the court condoning prosecutorial incompetence for it to recognise that the reality that errors can and do occur and, so far as possible consistently with the interests of justice, to do what can be done to overcome the problems thereby created. So to do is no more than to give effect to the statutory purpose of the legislation in the reality of the context in which it is required to operate...[60]

72 Nettle JA underscored this approach by referring to the judgment of Kirby J in Emanuele v Australian Securities Commission.[61]

...Courts today are less patient with meritless technicalities. They recognise the inconvenience that can attend an overly strict requirement of conformity to procedural preconditions. In the morass of modern legislation, it is easy enough, even for skilled and diligent practitioners (still more lay persons who must conform to the law) to slip in complying with statutory requirements.[62]

73 Thus, a flexible approach to statutory preconditions is to be encouraged. I do not believe there is merit in any of the submissions put to me on behalf of the first respondent concerning the procedural aspects of granting the application for review in this matter pursuant to the Act and the Rules. If I did, I would be moved to adopt an approach that would overcome technical and rigid insistence upon procedural preconditions.

74 Mr Holdenson submitted that if the appellant was successful in making out its argument concerning s 16K of the Act, I should exercise the discretion conferred on the Court pursuant to s 272(9) of the Criminal Procedure Act and inherent in the granting of any relief pursuant to r 56.01 of the Supreme Court (General Civil Procedure) Rules to make orders so as not to remit the matter for re-hearing. Mr Holdenson submitted that the first respondent had served his penalty, had been found guilty by the judicial registrar, had paid the fine of $244 on 17 April 2013 and that a notice had been served on him by Victoria Police on 24 July 2013 indicating three demerit points had been accumulated as a consequence of the finding of guilt by the judicial registrar. In these circumstances, it was contended it was appropriate to refuse the relief sought by the appellant.

75 I think there is merit in this submission. The offence, the subject of the proceeding, occurred on 2 April 2011, over three years ago, the hearing before the judicial registrar was protracted, commencing on 2 March 2012 and not concluding until 6 December 2012. The effluxion of time is very significant and, as stated above, the first respondent has served his penalty. Further, it is apparent that the decision of the judicial registrar was founded on a finding of fact concerning compliance of road signage with the traffic management plan and did not involve in any sense an institutional matter. Finally, the important question of the construction of s 16K of the Act has in effect overtaken this proceeding at significant cost both in time and resources. In these circumstances, I think it appropriate to exercise my discretion and not refer this matter back for re-hearing.

(1) The appeal pursuant to s 272 of the Criminal Procedure Act 2009 (proceeding

(2) The orders made on 17 April 2013 by Magistrate Pithouse in the Magistrates' Court at Heidelberg in case No. B12486923 be quashed.

(3) The appeal pursuant to r 56.01 of the Supreme Court (General Civil Procedure) Rules 2005 (proceeding S CI 2013 2442) be dismissed.

(4) In respect of each proceeding (S CI 2013 2441 and S CI 2013 2442), there be no order as to costs.

[1] State Pollution Control Commission v Tallow Products Pty Ltd (1992) 29 NSWLR 517.

[2] Notice of Appeal - Grounds of Appeal (a) and (b).

[3] [1991] HCA 9; (1991) 172 CLR 84.

[4] Harris v Caladine [1991] HCA 9; (1991) 172 CLR 84 at 95.

[5] Harris [1991] HCA 9; (1991) 172 CLR 84 at 164.

[6] X7 v Australian Crime Commission [2013] HCA 29; (2013) 298 ALR 570 at 595, [86] (Hayne and Bell JJ) citing O'Connor J in Potter v Minchen [1908] HCA 63; (1908) 7 CLR 277 at 304. In X7, their Honours found that general words of the relevant provisions of the Australian Crime Commission Act 2002 authorising examination of a person charged with an indictable offence about the subject matter of the offence would depart to a marked degree from the "general system of law" at 596, [87].

[7] [1978] FCA 24; (1978) 19 ALR 547.

[8] Section 24(1)(a) of the Federal Court of Australia Act 1976.

[9] Section 28(1)(e) of the Federal Court of Australia Act 1976.

[10] See generally s 28(1)(a) - (e) of the Federal Court of Australia Act 1976.

[11] Thompson v Mastertouch TV Service Pty Ltd [1978] FCA 24; (1978) 19 ALR 547 at 556 (Deane J).

[13] [1984] HCA 34; (1984) 155 CLR 21.

[14] Davern v Messel [1984] HCA 34; (1984) 155 CLR 21 at 37-38 (Gibbs CJ).

[15] Ibid at 52 (Mason and Brennan JJ).

[17] Ibid at 48 (Mason and Brennan JJ).

[18] [2006] VSCA 295; (2006) 15 VR 640.

[19] Director of Public Prosecutions v Garde-Wilson [2006] VSCA 295; (2006) 15 VR 640 at 647, [24].

[20] Ibid at 647, [26] (Bongiorno AJA).

[21] Davern [1984] HCA 34; (1984) 155 CLR 21 at 32.

[22] [2002] HCA 37; (2002) 191 ALR 543.

[26] Macleod v Australian Securities and Investment Commission [2002] HCA 37; (2002) 191 ALR 543 at 552, [39].

[27] Harris [1991] HCA 9; (1991) 172 CLR 84 at 95.

[28] Builders Licensing Board v Sperway Constructions (Syd) Pty Ltd [1976] HCA 62; (1976) 135 CLR 616 at 620.

[29] [1971] VicRp 39; [1971] VR 332.

[30] [2005] NSWCCA 344; (2005) 64 NSWLR 413.

[32] R v Stone [2005] NSWCCA 344; (2005) 64 NSWLR 413 at 433, [71].

[33] [2012] VSCA 25; (2012) 34 VR 206.

[34] (2011) 245 CLR 1.

[35] Slaveski v Smith [2012] VSCA 25; (2012) 34 VR 206 at 214, [20] (references omitted).

[36] Ibid at 215, [24]. The Court of Appeal, in Slaveski, observed that in Momcilovic their Honours did not achieve consensus as to the operation of s 7(2) of the Charter of Human Rights and Responsibilities Act 2006 ("the Charter") - what they are and when they may be limited. However, the Court stated the effect of s 7(2) on s 32(1) of the Charter "is limited" at 215, [23].

[38] [1988] 1 RCS 1033.

[39] Pursuant to s 75 of the Summary Convictions Act.

[40] Magistrates' Court hearing transcript dated 17 April 2013 at T17-18.

[41] [2000] VSC 549.

[44] Lednar & Ors v The Magistrates' Court & Anor [2000] VSC 549 at [397].

[50] [2013] WASCA 20.

[53] Magistrates' Court hearing transcript dated 17 April 2013 at T18-19.

[54] Magistrates' Court hearing transcript dated 17 April 2013 at T24.

[55] Contrast the evidence in Lednar concerning notice to and actions of plaintiffs in that case. See Gillard J at [414]-[417].

[56] Note the affidavit of Senior Constable Rachael Noon, police prosecutor at hearing before Magistrate Pithouse on 17 April 2013, deposes that the request for review was filed by Senior Constable Beale on 6 December 2012 after the hearing before the judicial registrar. In fact, the date of the document is 21 December 2012. The date, 6 December 2012, appears to have been inserted as the date of the order made by the judicial registrar. In any event, the affidavit was not filed until 21 December 2012 and the request for review needed to be accompanied by an affidavit in support for the request process to be complete under the Rules.

[57] Magistrates' Court hearing transcript dated 17 April 2013 at T23-24.

[58] Magistrates' Court hearing transcript dated 17 April 2013 at T64.

[59] [2012] VSCA 19; (2012) 34 VR 193.

[60] MAC v R [2012] VSCA 19; (2012) 34 VR 193 at 201, [36].

[61] [1997] HCA 20; (1997) 188 CLR 114.

[62] MAC [2012] VSCA 19; (2012) 34 VR 193 at 201, [37].