Appellant v Respondent

Supreme Court of Victoria|2015-02-09|Before: J FORREST J

PRACTICE AND PROCEDURE - Application by appellant to extend time in which to commence judicial review proceeding - Application dismissed by Associate Justice - Appeal from order of Associate Justice - Whether Associate Justice denied procedural fairness to the appellant and erred in law - Whether the merits of a case are a relevant consideration in determining an application for an extension of time - Supreme Court (General Civil Procedure) Rules 2005 (Vic).

2 His appeal to the County Court against the conviction and sentence failed.

3 Mr Lazarevic then sought, out of time, judicial review of the County Court Judge's decision. An application to extend the time in which to seek judicial review was heard before Derham AsJ of this Court on 30 September 2014 and dismissed, with detailed reasons published on 3 October 2014.[1]

4 Mr Lazarevic now appeals from the decision of Derham AsJ. To succeed, Mr Lazarevic must show that the Associate Justice committed an error of law.[2]

5 In essence, the grounds of appeal are that the Associate Justice denied Mr Lazarevic a fair hearing and failed to address Mr Lazarevic's primary argument. That is, the Associate Justice failed to address the reasons forMr Lazarevic not filing his originating motion within the time prescribed by the Supreme Court (General Civil Procedure) Rules 2005 (Vic) (Rules).

6 In my opinion, the transcript of the hearing and the reasons of the Associate Justice, demonstrate that there was no unfairness or error of law. Accordingly, this appeal should be dismissed. My reasoning now follows.

7 Mr Lazarevic appeared for himself on the appeal. As I followed his submissions, he identified three errors on the part of the Associate Justice:

(1) that the Associate Justice denied him procedural fairness in that his Honour was emotional and did not listen to the case Mr Lazarevic wished to put;

(2) that the Associate Justice erred by considering the merits of Mr Lazarevic's case for judicial review. Mr Lazarevic contended that the only consideration relevant to his application to extend time was his explanation for the delay in filing his originating motion and that it was not open to his Honour to consider the prospects of success of the substantive case.

(3) that the Associate Justice was wrong in concluding that the hearing before the County Court judge was conducted impartially and that Mr Lazarevic was not denied 'natural justice'.

8 I have listened to and watched the DVD of the County Court hearing before his Honour Judge Michael Bourke. I have also read the transcript of the hearing before the Associate Justice and his Honour's reasons . I have also reviewed the material which was before the Associate Justice and particularly the affidavits filed by Mr Lazarevic on 12 June, 28 July and 25 September 2014 (the gist of which is set out in paras [15] and [16] of the reasons) and the affidavit of Mr Adrian Castle sworn 26 September 2014.

9 On 23 April 2013, Mr Lazarevic was charged with two offences arising from his driving of a motor vehicle on 19 March 2013: driving whilst his authorisation to do so was suspended; and using a hand held mobile phone in a moving vehicle. The case came on before his Honour, Magistrate McNamara on 12 July 2013. Mr Lazarevic appeared for himself and pleaded not guilty. The two charges were found proven. Mr Lazarevic was convicted on the count of driving whilst his authorisation was suspended and fined $500 with costs. He was also convicted on the count of using a hand held mobile phone and fined $150.

10 On 7 August 2013, Mr Lazarevic lodged a notice of appeal against his conviction on both counts. The appeal was heard before his Honour Judge Bourke in the County Court on 11 November 2013. In essence (albeit that the form of the orders were altered), both convictions and the penalties imposed by the magistrate were affirmed and Mr Lazarevic was granted a stay until 11 February 2014.

11 On 23 May 2014, Mr Lazarevic issued a summons and originating motion seeking judicial review in the form of certiorari and prohibition to quash the orders of Judge Bourke . It was clearly out of time. Rule 56.02(1) allows a period of 60 days in which to seek judicial review. To obtain an extension of time, an applicant must demonstrate that there are exceptional circumstances surrounding the failure to issue within time.[3]

12 On 28 July 2014, Mr Lazarevic's summons came on before Zammit AsJ. Her Honour set down Mr Lazarevic's application for extension of time for 29 September 2014. The following appeared under the heading 'Other Matters' in her Honour's orders:

The plaintiff explained to the Court that he had documents that he wanted to put before the Court in support of an application to extend time. The Court informed the plaintiff that he needed to file and serve any documents with an affidavit. The plaintiff was also informed that in any application to extend time he needed to establish that he had a prima facie case and that mere assertions of being denied natural justice were not adequate.

13 The application to extend time was, as I mentioned earlier, heard and determined by Derham AsJ on 29 September 2014.

14 Mr Lazarevic's appeal against his Honour's decision was filed on 24 October 2014.

15 Mr Lazarevic represented himself at the hearing. Mr Hannan appeared on behalf of the informant and respondent to the appeal, Senior Constable Andrew Tanner.

16 After calling on the appeal and explaining to Mr Lazarevic the roles of the prosecutor and the Judge, the Trial Judge asked Mr Lazarevic to provide his defence to the charges. Mr Lazarevic said 'I was driving and I was on the mobile phone'.

17 His Honour patiently listened to Mr Lazarevic's discursive analysis of the Australian Constitution and that his defence rested on an asserted inconsistency between s 92 of the Constitution and the provisions of the Road Safety Act 1986 (Vic) and the regulations made under it. This was the consistent theme of the submissions put by Mr Lazarevic during the course of the hearing.

18 Notwithstanding the admissions made by Mr Lazarevic at the commencement of the hearing, Senior Constable Tanner was called and gave evidence as to the circumstances surrounding the offences.

19 Prior to cross examination, his Honour explained to Mr Lazarevic, in a careful and considered way, the questioning which would be permitted of Senior Constable Tanner. In the course of the cross examination, which was essentially irrelevant to the charges, but perhaps not to Mr Lazarevic's perceived defence, Mr Lazarevic sought permission from his Honour for his brother-in-law to ask questions of the witness. His Honour, benevolently it may be thought, acceded to the request and permitted this gentleman to act as a McKenzie Friend. [4] His questioning of Senior Constable Tanner traversed (amongst other things) the ownership of Coppin Street, Richmond.

20 At the conclusion of the Respondent's case, the Trial Judge carefully and correctly explained to Mr Lazarevic, his right to give evidence in his own defence. Mr Lazarevic declined to give evidence.

21 His Honour then invited submissions from Mr Lazarevic as to the disposition of the appeal. Again, Mr Lazarevic repeated, in a convoluted way, his reliance upon the alleged inconsistency between s 92 of the Constitution and the Road Safety Act and the regulations made under that Act. His Honour, at Mr Lazarevic's request, permitted the McKenzie Friend to make submissions on Mr Lazarevic's behalf. His Honour then heard submissions from Mr Hannan.

22 Unsurprisingly, his Honour at the conclusion of the submissions, held that the Road Safety Act and its regulations were validly enacted and that there was no inconsistency with any provision of the Constitution. He found the charges proven and then asked Mr Lazarevic for submissions in respect of penalty.

23 In response, Mr Lazarevic said that he was not guilty of any offence and then asked that the McKenzie Friend be permitted to address the Court. His Honour acceded to this request and was greeted with a submission regarding 'the trade mark status of Mr Lazarevic's given name, as set out on his birth certificate.'

24 Ultimately, his Honour determined that the fines imposed by the Magistrates Court were fair and just and reimposed those fines with a costs order.

25 Finally, His Honour asked Mr Lazarevic whether he sought a stay in relation to the payment of the fines. Mr Lazarevic did not respond directly, but said that he proposed to appeal and that next time he would be fully prepared to argue his case.

26 Mr Lazarevic was unrepresented. Mr Castle, a solicitor of the Office of Public Prosecutions, appeared on behalf of the respondent.

27 Mr Lazarevic filed three affidavits in support of his application and one, sworn by Mr Castle, was filed on behalf of the respondent named as 'Victoria Police'.[5] The transcript of the hearing occupies 17 pages.

28 The application to extend the time within which Mr Lazarevic could commence his proceeding was refused and the proceeding dismissed.

29 The comprehensive reasons of the Associate Justice were published in admirably rapid time.[6]

Ground of appeal 1 - was Mr Lazarevic denied a fair hearing by the Associate Justice?

30 Mr Lazarevic was at pains to emphasise that all he wanted was the opportunity to present his case for an extension of time. He contended that Derham AsJ was 'emotional' and that he 'did not hear my case'.

31 I have read the transcript of the hearing before the Associate Justice carefully. It is true, as Mr Lazarevic pointed out that, on a number of occasions, he was interrupted by the Associate Justice. But, as I read it, this was simply in an effort to draw Mr Lazarevic's attention to the relevant issues on the application and in particular, the need to demonstrate special circumstances. It is to be remembered that the Associate Justice already had the benefit of Mr Lazarevic's three affidavits as well as the affidavit of Mr Castle and the hearing was confined to determining whether there was sufficient material to justify the grant of an extension of time.

32 It was, in my opinion, perfectly proper for the Associate Justice to endeavour to direct Mr Lazarevic to those matters which his Honour regarded as central to the application, including whether the appeal had, in substance, a proper basis. I will return to this point in a moment.

33 In an application of this nature in a busy court, with many litigants seeking the opportunity to be heard, his Honour was entitled to conduct the hearing in a precise manner, bearing in mind that Mr Lazarevic was unrepresented. I do not suggest that Mr Lazarevic was rude or disrespectful to his Honour. But it is clear from the transcript that he was discursive on matters that had no relevance to the application before his Honour (for instance, a discussion on the incorporation of the Victoria Police and its lack of an ABN number, allegations concerning systemic corruption in the 'whole system', the need for a jury trial of his originating motion and the payment of his fines to a charity of his choice).

34 In my opinion, the hearing was conducted with both fairness and firmness, as it needed to be. I see no vice whatsoever in his Honour determining the application ex tempore. This was a relatively simple matter and it is abundantly clear (as demonstrated by the published reasons) that his Honour was well on top of both the principles and the facts.

Ground of appeal 2 - did the Associate Justice err by considering the merits of the application for judicial review?

36 After setting out a number of the authorities relating to the existence of special circumstances, as required by Rule 56.02(3), in relation to an extension of time, his Honour reached the following, with respect, unimpeachable, conclusion:[7]

(a) The rule requires the Court to be objectively satisfied that special circumstances exist;

(b) The existence of special circumstances is to be determined by reference to all the circumstances of a case;

(c) The factors relevant to the exercise of the discretion under Rule 56.03(2) [sic] include, but are not limited to:

(i) the period of the delay;

(ii) the reason for the delay;

(iii) whether the plaintiff has an arguable case;

(iv) the justice to both parties, including the prejudice to the parties; and

(v) the public interest in the finality of litigation.

37 The Associate Justice then specifically addressed the way in which the existence of an arguable case was relevant to the application, or as his Honour put it, 'whether the plaintiff has a real prospect of success'.[8] His Honour went on to say:

The fact that the plaintiff may demonstrate an error below, or other grounds for judicial review, does not automatically result in there being 'special circumstances', for if that were so there would be little practical point to the time limit contained in the Rule. On the other hand, where it is clear that a plaintiff's grounds are not arguable, or he has no real prospects of success, there will ordinarily be no point in extending the time and therefore no special circumstances exist.[9]

38 Mr Lazarevic contended that the only relevant consideration for the Court was whether there was an explanation for his delay in filing his originating motion and summons.

39 In Mann v Medical Practitioners Board of Victoria,[10] the Court of Appeal held that in determining whether special circumstances exist a judge is entitled to have regard to all the circumstances of the case and to determine whether those circumstances can be properly categorised as special.[11]

On the question of the prospects of success of the substantive application Chernov JA said:

I also agree with Hansen AJA that no relevant error was made by the learned primary judge in concluding that Mr Mann has not established the existence of "special circumstances" within the meaning of r 56.02(3). It is clear enough that the factors that his Honour took into account in his thorough analysis of this issue were relevant to its resolution. Mr Mann argued, however, as I understood him, that there were two other matters that amounted to "special circumstances" which his Honour overlooked. The first was the Board's condemnation of him as a medical practitioner without first according him an opportunity to meet the criticism. The second was that his complaint against the Board's conduct is likely to have ramifications for other medical practitioners. In my view, neither matter constitutes a "special circumstance". Given the lateness of the application and having regard to what I have said about the applicant's prospects of success in any claim against the Board based on breach of natural justice, on no view can the first matter be regarded as a "special circumstance". A like conclusion must apply in relation to the second matter put forward by Mr Mann as a "special circumstance". Even if it were relevant to consider for this purpose whether the resolution of Mr Mann's proposed claim against the Board is likely to have an impact on its conduct towards doctors generally in respect of disciplinary complaints, there is no acceptable evidence before us to support that contention.[12]

Most importantly, however, it was the Judge below who was charged with the responsibility of deciding whether Mr Mann had shown special circumstances for waiting more than six years before the institution of the proceeding, and as Hansen AJA has explained, that means that in the absence of a real likelihood of error and the prospect of substantial injustice, the Judge's decision must stand.[13]

40 It follows from these statements that I do not accept that the Associate Justice was confined to consideration of the question of delay, as submitted by Mr Lazarevic; in my opinion, the Associate Justice correctly considered the prospects of success of the originating motion as being a matter germane to an extension of time.

41 Further, as discussed under the third ground of appeal, his Honour was correct in determining that the substantive ground of the originating motion (denial of procedural fairness) was doomed to failure.

There is no basis whatever in the ground of a denial of procedural fairness nor the ground, if it be a ground, that the judge was biased.[14]

His Honour would have been entitled to dismiss the application for extension on this basis alone.

43 However his Honour also considered the contents of Mr Lazarevic's affidavits and concluded that ignorance of procedure was not a sufficiently reasonable explanation for his failure to issue within time:

In this case, the explanation for the delay is, when properly analysed, ignorance of the fact that there is a time limit. That is, the plaintiff relies upon his inability to obtain any legal advice (without substantiating that inability otherwise than by assertion) and his reliance upon the registry staff for assistance in the procedural steps and requirements for launching an application for judicial review under O 56.

I do not accept that this is an explanation for delay which supports the proposition that the circumstances are out of the common run of cases. They are not. The position of a litigant in person is commonly one of a lack of familiarity with the law and the procedure. This case exemplifies that position in all respects. There is nothing unusual or out of the general run of matters that litigants, whether represented or not, must undertake investigations and research in order to pursue their rights of review. There is nothing special in the fact that a lay person has a limited understanding of the procedural requirements for the launching of an application in this court. It is the norm. In short, there is nothing special about the position in which the plaintiff found himself.[15]

44 It is clear, therefore, that his Honour did not ignore Mr Lazarevic's explanation for the delay in filing the originating motion. Rather, he considered that that it did not justify a finding of the existence of special circumstances. Whilst others may have taken a different view of Mr Lazarevic's reasons, his Honour's conclusion was, I consider, open to him.

Ground of appeal 3 - did the Associate Justice err in his conclusion that the appellant was afforded a fair hearing in the County Court?

45 In my opinion, there has been no error shown in the conclusion reached by the Associate Justice or in his reasoning. I have set out in précis, the details of the County Court hearing at [15]-[25].

46 The Associate Justice concluded:[16]:

Overall, the learned Judge was astute to ensure that the plaintiff had a fair hearing and he gave the plaintiff every opportunity to present a sensible defence to the charges

There is no basis whatever in the ground of a denial of procedural fairness nor the ground, if it be a ground, that the Judge was biased.

47 I agree entirely with this conclusion. The hearing was conducted impartially and with exemplary fairness. There is no substance whatsoever to Mr Lazarevic's complaints. The third ground of appeal fails.

[1] Lazarevic v Victoria Police [2014] VSC 497. The appropriate respondent was Senior Constable Tanner, the informant. No point was taken as to the reference to 'Victoria Police'.

[2] Hau v Westpac [2014] VSC 606, [37] and [48], Schreuders v Grandiflora Nominees Pty Ltd [2014] VSC 310, Oswal v Carson [2013] VSC 355.

[4] Apostolou v Commissioner of State Revenue [2008] VSC 332, [20]-[21].

[6] Lazarevic v Victoria Police [2014] VSC 497.

[10] [2004] VSCA 148 ('Mann').

[11] Ibid, [57], [67]-[72] (Hansen AJA, with whom Chernov and Nettle JJA agreed).

[13] Ibid, [22] (citation omitted); see also [57]-[72] (Hansen AJA).

[14] Lazarevic v Victoria Police [2014] VSC 497, [47].

[15] Lazarevic v Victoria Police [2014] VSC 497, [50]-[51].

[16] Lazarevic v Victoria Police [2014] VSC 497, [46]-[47].

Court (General Civil Procedure) Rules 2005

At a glance

Court

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Before

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Judgment (74 paragraphs)

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Legislation Cited (4)