Appellant v Second Respondent

2 Western Truck Towing is a towing business with an address in Williamstown and operates licensed tow trucks. Its proceeding under O 56 sought review of a decision of a magistrate not to disqualify himself from further dealing with, or hearing, criminal prosecutions brought by officers of the second respondent, the Roads Corporation, for alleged breaches of s 26 of the Accident Towing Services Act 2007. That provision creates a criminal offence where the holder of a tow truck licence does not comply with a condition to which the licence is subject.

3 The Magistrate had set aside summonses issued by Western Truck Towing for witnesses to attend court to give evidence. The judicial review proceedings were based on claims that the Magistrate exhibited conduct which could disclose actual bias or which could give rise to a reasonable apprehension of bias and that he should have disqualified himself from hearing the Roads Corporation's application to set aside the summonses.

4 The Associate Justice summarised the basis of the application to the Magistrate in the following terms:

The basis of the application was that in making orders for the hearing of the VicRoads[1] application to set aside the witness summonses, and by granting an extension of the time for compliance with them, without giving Western Truck the opportunity to be heard as to the dates, and by apparently prejudging the relevance of the witnesses before hearing from Western Truck, Magistrate Lethbridge had demonstrated actual or apprehended bias in relation to the issues he had to decide in VicRoads' application to set aside the witness summonses.

5 Counsel for Western Truck Towing referred to conduct consisting of inappropriate communication, and the failure to inform or give the appellant the right to make submissions about whether "the subpoenas or the attendance of the witnesses in the subpoenas should come to court on the day of the objection."

6 In the judicial review proceeding, Western Truck Towing sought: orders in the nature of certiorari, quashing the Magistrate's rulings; orders for the reinstatement of the summonses; an order in the nature of mandamus, requiring that a magistrate other than the Magistrate hear the charges; and an order in the nature of prohibition, directing that the Magistrate not at any time deal with and/or sit in hearing of the charges.

7 There were other orders sought by Western Truck Towing that challenged the Magistrate's decision to dismiss the summonses which Western Truck Towing had caused to be issued. There was also an application for a declaration that particular conduct by the holder of a tow truck licence would not breach s 26 or Division 9 of the Accident Towing Services Act.

8 By summons, the Roads Corporation sought the dismissal or staying of the proceeding. On 3 May 2013, the Associate Justice dismissed the proceeding, relying, at least, on the summary judgment power contained in s 63 of the Civil Procedure Act 2010.[2] He decided that there was no real question to be tried. His orders, as recorded on the file, were:

1. The originating motion filed on 15 April 2013 is dismissed.
2. That the plaintiff shall pay the second defendant the costs of the proceeding.

9 On 7 May 2013, Emerton J refused an application by Western Truck Towing to stay the Magistrates' Court proceeding.

10 Western Truck Towing sought orders that the appeal be allowed, the orders below be set aside, and the respondent pay the costs of this appeal and the costs of the proceeding before the Associate Justice (including any reserved costs).

11 The grounds of appeal raised a number of issues concerning the Associate Justice's decision, but as developed in the hearing of the appeal, the argument was principally directed to the existence of the power on which the Associate Justice relied.[3] Since the Associate Justice's order of 3 May 2013, the criminal charges against Western Truck Towing have been heard and determined by the Magistrates' Court. I was informed by counsel for Western Truck Towing that it had been convicted and fined. I was advised by counsel that an appeal against the Magistrates' Court order is pending in this Court.

12 Because the charges have been heard and determined by the Magistrates' Court, in all but one respect, this proceeding is now futile. The occasion for the issuing of summonses or for ordering another magistrate to consider the issuing of summonses, if jurisdictional error was established, has passed. Counsel for Western Truck Towing informed me that, because of this, if it succeeded in having the Associate Justice's orders set aside, it did not wish to proceed with the O 56 proceeding and would consent to orders that it be dismissed. However, the Associate Justice's order leaves Western Truck Towing subject to an order for costs, which is a significant matter. Accordingly, I consider that the proceeding is not futile and that the court should proceed to hear the appeal.

13 It is important to note that Western Truck Towing's arguments as to jurisdiction were not put to the Associate Justice and he was not asked to rule on those issues. But as they relate to jurisdiction, I consider that they can still be put on appeal.

14 As stated, the Associate Justice dismissed the proceeding, at least, under s 63 of the Civil Procedure Act. Section 63 provides:

1. Subject to s 64, a court may give summary judgment in any civil proceeding if satisfied that a claim, a defence or a counterclaim or part of a claim, defence or counterclaim, as the case requires, has no real prospect of success.
2. A court may give summary judgment in any civil proceeding under subsection (1) -

(a) on the application of a plaintiff in a civil proceeding;

(b) on the application of a defendant in a civil proceeding;

(c) on the court's own motion, if satisfied that it is desirable to summarily dispose of the civil proceeding.

15 Civil proceeding is defined by s 3 to mean:

any proceeding in a court other than a criminal proceeding or quasi-criminal proceeding.

A proceeding to which the Criminal Procedure Act 2009 applies and includes

(a) committal proceedings;

(b) proceedings relating to bail;

(c) proceedings relating to the sentencing of an accused.

17 The term "quasi-criminal" is not defined but in the Explanatory Memorandum for the Civil Procedure Bill the following appears:

Civil proceeding means any proceeding in a court other than a criminal proceeding or quasi-criminal proceeding. In this context, the term quasi-criminal proceeding contemplates a proceeding which often, but not always, relates to a criminal proceeding, such as proceedings for the recovery of proceeds of crime and proceedings for contempt. These types of proceedings usually have a lower standard of proof, usually the civil standard, being on the balance of probabilities, rather than the criminal standard, which is beyond reasonable doubt. Examples of Acts which provide for the bringing of quasi-criminal proceedings are listed in cl 4.

(1) Subject to this section, this Act applies to all civil proceedings.

(2) This Act does not apply to proceedings under the following Acts -

(a) the Family Violence Protection Act 2008;

(b) the Personal Safety and Intervention Orders Act 2010;

(c) the Confiscation Act 1997;

(d) the Proceeds of Crime Act 1987 of the Commonwealth and the Proceeds of Crime Act 2002 of the Commonwealth;

(e) the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997;

(ea) the Criminal Organisations Control Act 2012;

(f) the Children, Youth and Families Act 2005;

(g) the Coroners Act 2008;

(h) the Victims of Crimes Assistance Act 1996;

(i) the Sentencing Act 1991;

(j) the Serious Sex Offenders (Detention and Supervision) Act 2009.

(iii) This Act does not apply to any proceeding in VCAT.

(iv) This Act does not apply to any proceeding under a prescribed Act.

19 I note that the Criminal Procedure Act 2009 by s 5 states that a "criminal proceeding" is commenced by -

(a) filing or signing a charge-sheet in accordance with section 6; or

(b) filing a direct indictment in accordance with section 159; or

(c) a direction under section 415 that a person be tried for perjury.

20 The Criminal Procedure Act also regulates committal proceedings and appeals against decisions of lower courts in criminal proceedings.

21 The Supreme Court (Criminal Procedure) Rules 2008 state as their object:

The object of these Rules is to provide certain forms and procedures for matters in the Court under the Crimes Act 1958 and the Criminal Procedure Act 2009 and under other legislation relating to matters of a criminal, quasi-criminal or related matter.

22 The term "quasi-criminal" is not defined in those Rules.

23 Western Truck Towing relied on a line of authority commencing with the decision of Cussen J in R v Watt; ex parte Slade[4] which has been followed in subsequent cases: eg in DPP v Greelish (No.2)[5]. The effect of those authorities is that in determining whether a proceeding is criminal or civil, one has regard to the underlying nature of the proceeding.

The first question I shall deal with is the question whether in this case there is any appeal... In some of the cases it will be found that the decision turns on the question whether the principal matter which is then directly under consideration is itself a criminal or civil matter... In other cases the proceeding directly under consideration may be said, in some respects, to be equivocal. Such are cases of habeas corpus, mandamus, certiorari, and matters of that kind. In these cases you may have to look back to see whether the matter directly under consideration is not merely subordinate or ancillary to some prior and more substantial matter, and whether the decision one way or the other, in the matter directly under consideration, does or does not affect the proceedings on, or in connection with, the other and more substantial matter. If you find it does affect the prior matter, whether a proceeding in court or not, which itself is criminal, then it may be held, and it has been held in many cases, that the proceeding directly under consideration is a criminal matter. There are numerous examples of that class of case in the books, and I think it is that class of case which gives rise to the most difficulty. In both classes it is the substance and not the form which determines the ultimate decision. If, for example, you have an application for habeas corpus, you cannot determine straight off, simply on learning that fact, whether the matter is criminal or not. If you find that that habeas corpus relates to the imprisonment of some person who is in prison for some offence, then it would probably be held that it is a criminal matter, and if it relates to the custody of a child, apart from any question of imprisonment in the ordinary sense, it may be held to be a civil matter. The same considerations will determine cases in connection with many applications for mandamus, certiorari, and so on.[6]

25 Western Truck Towing submitted that a clear line of authority, commencing with Ex parte Slade, governed the present matter and an application to judicially review a decision of a magistrate in a criminal proceeding was, in itself, a criminal proceeding.

26 Western Truck Towing submitted that the contrary approach of the Roads Corporation, which supported the Associate Justice's reliance on s 63 of the Civil Procedure Act, would allow matters which were truly criminal in nature - such as sentencing issues, issues about the right to silence, the exercise of the discretion to exclude real evidence and questions of proof and concerning the liberty of the subject - to be litigated under the rubric of civil proceedings. An application under O 56 that arises from a criminal proceeding should be treated as a criminal proceeding.

27 In addition, Western Truck Towing submitted that the judicial review proceedings were "quasi-criminal" proceedings within s 3. That term had not been defined because it encompassed all those matters which arise from, or about, or relating to a criminal proceeding and includes applications for habeas corpus. The term "quasi-criminal" was a term of art and should be interpreted by reference to the line of authority on which the appellant relied. The terms "criminal proceeding" and "quasi-criminal" proceeding should be given as broad as possible a meaning. "Quasi-criminal" proceedings means, in essence, any proceedings that are attached to or arise from an actual criminal proceeding in the lower court.

28 The Roads Corporation relied on the definitions of "civil proceeding" and "criminal proceeding" contained in the Civil Procedure Act and submitted that the proceedings under O 56 were not criminal proceedings within that definition and were therefore civil proceedings. They referred to the report of Lord Woolf, Access to Justice,[7] which was influential in the enactment of the Civil Procedure Act and submitted that that report contemplated that judicial review proceedings from both criminal and civil proceedings would be governed by the civil procedure reforms.

29 The Roads Corporation also referred to the judgment of the English Court of Appeal in Ewing v Director of Public Prosecutions,[8] where the Court was considering whether a vexatious litigant, subject to a civil proceedings order under s 42 of the Senior Courts Act 1981, required leave pursuant to s 42(3) before he could seek permission to commence proceedings for judicial review in a criminal cause or matter. Smith LJ stated:

Mr Ewing drew our attention to a large number of authorities, ... I do not propose to cite from any of these cases. In each of them the issue before the court was whether or not the judicial review in question was judicial review in a criminal cause or matter. The issue mattered because it determined the route of appeal which would follow the initial decision. The cases were not concerned with the question in issue here, namely whether an application for permission to proceed with judicial review and/or the judicial review proceedings themselves are civil proceedings even where the judicial review in question will be judicial review in a criminal cause or matter. Thus the authorities that Mr Ewing relied on are of no assistance one way or the other on the issue which has to be determined here.

30 The Court determined that the proceedings were civil proceedings.

31 I do not consider that the judicial review proceeding was a criminal proceeding within the definition of that term contained in s 3 of the Civil Procedure Act. It was not a proceeding to which the Criminal Procedure Act applied or which fell within one of the categories of proceedings listed in the definition of "criminal proceeding" in the Civil Procedure Act.

32 Nor do I consider that the judicial review proceeding was a "quasi-criminal" proceeding. That term has usually been used to refer to proceedings which concern conduct which is analogous to criminal conduct or which may attract sanctions analogous to criminal sanctions. Examples of such conduct includes civil contempt proceedings[9], customs prosecutions[10] and penalty proceedings.

33 It may be that the statutes referred to in s 4 of the Civil Procedure Act were intended to provide examples of the quasi-criminal proceedings to which the Act refers. Some at least of those Acts deal with proceedings that apply the civil standard of proof eg family violence protection orders made under ss 53 and 74 of the Family Violence Protection Act 2008. However, it is not possible to place all the statutes mentioned in s 4 of the Civil Procedure Act into one category. They include statutes which provide for substantive proceedings: eg proceedings that seek to recover the proceeds of crime.

34 The term "quasi-criminal" has been in use for a considerable time,[11] but so far as I am aware, judicial review proceedings have not commonly been described as quasi-criminal proceedings.

35 Counsel for Western Truck Towing submitted that Parliament would have made it abundantly clear in the Civil Procedure Act if it had intended to alter the effect of the line of authority exemplified by Ex parte Slade.[12] That submission would be entitled to great weight if it were not for the clear terms of the Civil Procedure Act in defining the terms "civil proceeding" and "criminal proceeding" for the purposes of the application of that Act. In my opinion, Parliament, by clearly defining the terms "civil proceeding" and "criminal proceeding", has stipulated the matters that are excluded from the operation of the Civil Procedure Act. Those matters do not include an application to judicially review a decision of a magistrate in a criminal prosecution. It is relevant to note that all judicial review proceedings in this court are regulated by the Civil Procedure Rules of the Court.

36 I do not consider that this case is to be determined, as Western Truck Towing contended, by applying the interpretative principle that legislation is not presumed to alter common law doctrines. Rather, the Court is to apply standard principles of statutory interpretation and give the words of the Civil Procedure Act their ordinary meaning.

37 Under earlier rules of court, an applicant for a prerogative writ to judicially review a decision had to demonstrate, usually at an ex parte hearing, an arguable case in order to obtain an order nisi which, when granted, was returnable after it had been served on the respondent. Under the streamlined provisions of O 56, an applicant for judicial review does not require leave to commence proceedings, but s 63 of the Civil Procedure Act provides a mechanism for a defendant to have the proceedings dismissed at an early stage.

38 Western Truck Towing's submissions that the Associate Justice lacked power to dismiss the proceeding under s 63 of the Civil Procedure Act cannot succeed and the appeal must therefore be dismissed.

39 The Roads Corporation submitted in the alternative that the Associate Justice had also determined that the proceeding was an abuse of process and had also based his decision to dismiss the proceeding on the power contained in r 23.01 of the Civil Procedure Rules. Western Truck Towing disputed that the Associate Justice had so acted.

40 In my opinion, the Associate Justice acted under s 63 of the Civil Procedure Act. This is clear enough from the last paragraph of his Honour's reasons which states:

For the above reasons, and because of the discretionary considerations identified in the submissions by VicRoads, and the potential for the proceeding if merely stayed under Rule 23.01 to act as a spectre overhanging the prosecutions due to commence on Monday next, the proceeding should be dismissed in its entirety pursuant to s 63 of the Civil Procedure Act 2010. It is in my view clear that there is no real question to be tried.

41 In addition, a fair reading of paragraphs 61-62 of the Associate Justice's reasons suggests that he also considered that the proceeding was an abuse of process within the meaning of r 23.01, because "there was no basis to the claim of apprehended bias" and that "is follow[ed] that the originating motion in its entirety should be dismissed".

42 I consider that this finding of the Associate Justice provided a second basis to dismiss the proceeding. The Civil Procedure Rules apply to every civil proceeding commenced in the Court, whether before or after the commencement date (r 1.05). It is not entirely clear if the Associate Justice based his order on r 23.01 but, in view of his findings, that provision provided a second source of power for the order that he made.

43 In its written submissions in reply, Western Truck Towing appeared to challenge the Associate Judge's exercise of the power to award summary judgment to the Roads Corporation. That submission was included as part of the abuse of process submission and appears to be directed to the inappropriateness of any determination that the proceedings were an abuse of process.

44 However, Western Truck Towing's submissions did not suggest any error in the manner in which the Associate Justice applied the discretion to order summary judgment for the defendant given by s 63 of the Civil Procedure Act and none is apparent in his reasons.

45 The Roads Corporation submitted, as an alternative, that if I found that the Associate Justice did not have power to make the order dismissing the proceeding under s 63 of the Civil Procedure Act, then I should either, permanently stay the proceeding under r 23.01(1), summarily dismiss it in the exercise of the Court's inherent powers, or hear and determine the O 56 proceeding forthwith, on the material before the Court. In view of the conclusion that I have reached, it is unnecessary to consider whether any of these courses would have been appropriate.

[1] A reference to the Roads Corporation.

[2] Western Truck Towing Pty Ltd v The Magistrates' Court of Victoria and Another [2013] VSC 224 (Derham AsJ).

[4] [1912] VicLawRp 43; [1912] VLR 225.

[5] [2002] VSCA 68; [2002] 5 VR 349; Clarkson v DPP [1990] VicRp 65; [1990] VR 745; DPP v Sher (No.2) [2000] VSC 350; (2000) 116 A Crim R 458; DPP v Hore & Askwith (No.2) [2005] VSCA 55.

[6] [1912] VicLawRp 43; [1912] VLR 225,241-242.

[7] Lord Woolf, Access to Justice, Chapter 18.

[8] [2010] EWCA Civ 70 [33].

[9] Boral Resources (Vic) Pty Ltd v Construction, Forestry, Mining and Energy Union [2013] VSC 572 [52].

[10] Chief Executive Officer of Customs v Jiang [2001] FCA 145; (2001) 111 FCR 395 [82], but see Chief Executive Officer of Customs v Labrador Liquor Wholesale Pty Ltd [2003] HCA 49; (2003) 216 CLR 161.

[11] Eg R v Parsons; Ex parte Farmers Produce Co Ltd [1888] VicLawRp 151; (1888) 14 VLR 836, 843 and Duncan v Kepert [1901] VicLawRp 27; (1900) 26 VLR 182, 185.

[12] [1912] VicLawRp 43; [1912] VLR 225.