Boros v O'Keefe [2017] VSC 560

2 The second defendant ('the defendant') alleges that on 31 May 2016 a vehicle driven by the plaintiff - or at least owned by the plaintiff - was detected travelling at 77 kph in a 60 kph zone.

3 On 7 September 2016, after being issued with an infringement notice, the plaintiff requested a court hearing.

4 On 17 November 2016, the Charge-Sheet and Summons were issued by the defendant against the plaintiff.

5 On 19 January 2017, the plaintiff sent documents to the Magistrates' Court, including a document headed a 'Notice of Default', under which he challenged the authority of 'the legislation relied upon in the prosecution case'. He also included a document headed 'Notice of No Plea' and an affidavit that he had affirmed, which he named, 'Affidavit of Truth'.

6 On 27 January 2017, the matter came on for hearing before a judicial registrar exercising the jurisdiction of the Magistrates' Court. The evidence of what occurred at the hearing was as follows:

(a) With respect to the part of the hearing, which was not recorded, the prosecutor in the Magistrates' Court deposed as follows:

[The plaintiff] did not recognise the jurisdiction of the court and that he had a constitutional argument. The judicial registrar asked the plaintiff if he was going to enter a plea or seek an adjournment. The plaintiff refused to do so and said words to the effect that he did not recognise the court's jurisdiction. The judicial registrar told the plaintiff he could remain in court and hear the decision or if he wished he could leave the court.

From this point the recorded part of the hearing commences.

(b) The audio recording (for that part of the hearing before the judicial registrar that was recorded) was played during the hearing before me; and a transcript of the recording was tendered.

7 There may be some differences between the recording and the transcript; but they are not significant. It is necessary to refer to the full transcript of the part of the hearing, which was recorded.

JUDICIAL REGISTRAR: --- in court or you can leave the court now; it's your choice.

ACCUSED: Sir, with that, we advise the court that - only for record - we do not enter a plea and we do not consent for this matter to be heard in our absence. We are here for this matter now.

JUDICIAL REGISTRAR: Thank you. Take a seat back in the court, thank you.

ACCUSED: Sir, I would prefer to retain my standing.

JUDICIAL REGISTRAR: You can leave the court.

ACCUSED: Unless you have this meeting - this matter (indistinct).

JUDICIAL REGISTRAR: You either leave the court or I'll have you removed.

ACCUSED: If you don't mind, sir, we shall leave the court.

JUDICIAL REGISTRAR: Thank you. Are you relying on the brief that's been served, Senior?

SENIOR CONSTABLE WALKER: Yes, Your Honour.

JUDICIAL REGISTRAR: Thank you.

ACCUSED: And for the record, that brief has been sent back and we shall require an audio copy of this hearing, sir.

JUDICIAL REGISTRAR: Certainly.

ACCUSED: Unedited, full copy, sir.

JUDICIAL REGISTRAR: Leave the court. Is the s 83 certificate on file or is there ---

ACCUSED: (indistinct)

JUDICIAL REGISTRAR: --- a s 84 certificate on file? There is a s 83A certificate on file. Do you rely on that?

SENIOR CONSTABLE WALKER: Yes, Your Honour.

JUDICIAL REGISTRAR: The relevant provisions under the Road Safety Act have all been complied with. I formally find the charge against the accused is proven. There is a s 84 certificate on file with the relevant offences alleged against him.

SENIOR CONSTABLE WALKER: Yes, Your Honour.

JUDICIAL REGISTRAR: In the circumstances, without conviction, the accused is fined the sum of $500 and there will be a formal stay of one month.

SENIOR CONSTABLE WALKER: If Your Honour pleases.

JUDICIAL REGISTRAR: Thank you.

8 In my opinion, what occurred at the hearing on 27 January 2017 and what was recorded may be summarised as follows:

(a) The plaintiff told the judicial registrar that he did not recognise the jurisdiction of the court and refused to enter a plea.

(b) The judicial registrar said he could remain in court or leave.

(c) The plaintiff said that he did not enter a plea and that he did not consent for the matter to be heard in his absence.

(d) The judicial registrar asked the plaintiff to take a seat in the court.

(e) The plaintiff said, 'Sir, I'd prefer to retain my standing'.

(f) The judicial registrar said, 'You can leave the court'.

(g) The plaintiff said something to the effect of, 'Unless you have this meeting, this matter'.

(h) The judicial registrar then said, 'You either leave the court or I'll have you removed'.

(i) The audio recording reveals a period of silence, which is consistent with the plaintiff's contention that, in accordance with the order of the judicial registrar, he then left the court.

(j) The judicial registrar then considered the evidence and made his decision in the plaintiff's absence.

9 Counsel for the defendant submitted that the application should be refused for the following reasons:

(a) The effect of s 16K of the Magistrates' Court Act 1989 was to abrogate the jurisdiction of the Supreme Court to judicially review the decisions of judicial registrars;

(b) Having regard to the circumstances, the judicial registrar was entitled to remove the applicant from the court; and

(c) The Court ought to exercise its discretion under O 56 of the Rules and refuse relief.

Is the supervisory jurisdiction of the Supreme Court abrogated by s 16K of the Magistrates' Court Act 1989?

10 It was not contested that in normal circumstances, the Supreme Court would have supervisory jurisdiction over the Magistrates' Court, including judicial registrars.

11 However, counsel for the defendant submitted that the jurisdiction was abrogated by s 16K(3) of the Magistrates' Court Act 1989, which provides as follows:

Unless the rules otherwise provided, the determination of the Court constituted by the judicial registrar may be appealed from or reviewed -

(a) on an application of a party to the proceeding; or

(b) on the Court's own motion.

12 It was argued that the words in the section, 'or reviewed', indicated that it was intended by the legislature that the judicial review procedures under O 56 of the Rules (and judicial review procedures generally) were limited; and that the only review procedure was to be an appeal de novo to a magistrate. It was submitted that otherwise the section would have no work to do.

13 In my opinion, there is nothing in s 16K, or elsewhere in the Magistrates' Court Act 1989, indicating that there was any legislative intention to interfere with the jurisdiction of this court; and therefore, it could not be said that it was implied by necessary intendment to so restrict the jurisdiction of this court in particular.

14 This conclusion is further supported by the following:

(a) Section 85(1) of the Constitution Act 1975 provides that the Supreme Court shall be the superior court of Victoria with unlimited jurisdiction. Subsections (5) and (6) provide as follows:

(5) A provision of an Act, other than a provision which directly repeals or directly amends any part of this section, is not to be taken to repeal, alter or vary this section unless -

(a) the Act expressly refers to this section in, or in relation to, that provision and expressly, and not merely by implication, states an intention to repeal, alter or vary this section; and

(b) the member of the Parliament who introduces the Bill for the Act or, if the provision is inserted in the Act by another Act, the Bill for that other Act, or a person acting on his or her behalf, makes a statement to the Council or the Assembly, as the case requires, of the reasons for repealing, altering or varying this section; and

(i) during the member's second reading speech; or

(ii) after not less than 24 hours' notice is given of the intention to make the statement but before the third reading of the Bill; or

(iii) with the leave of the Council or the Assembly, as the case requires, at any time before the third reading of the Bill.

(6) A provision of a Bill which excludes or restricts, or purports to exclude or restrict, judicial review by the Court of a decision of another court, tribunal, body or person is to be taken to repeal, alter or vary this section and to be of no effect unless the requirements of subsection (5) are satisfied.

In this case, it is not contended that subs (5) was satisfied and therefore the jurisdiction of this court to supervise the Magistrates' Court, including the judicial registrars, must be unaffected by s 16K of the Magistrates' Court Act 1989.

15 In Rodger v Wojcik,[1] Croucher J held that the decision of a judicial registrar of the Magistrates' Court was in fact a final order for the purposes of appeals under s 272(1) of the Criminal Procedure Act 2009. The appellant had been charged and convicted by a judicial registrar of the Magistrates' Court, in his absence, of exceeding the speed limit on a motorcycle contrary to r 20 of the Road Safety Road Rules 2009.

16 On appeal, Croucher J rejected the prosecutor's submission that:

(a) s 16K was 'the exclusive repository of a right of appeal against a judicial registrar's decision';[2] and

(b) the reference to final order in s 272(1) of the Criminal Procedure Act 2009 should be restricted to final orders by Magistrates (and not orders of Judicial Registrars).

[T]here is no warrant for construing s 272(1) in that way. The words in that provision are plain. They make no distinction between final orders made by magistrates and those made by judicial registrars.[3]

Was the judicial registrar entitled to remove the applicant from the court?

17 Counsel for the defendant submitted that, having regard to the circumstances, the judicial registrar was entitled to order the removal of the plaintiff from the court for the following reasons:

(a) The plaintiff had already had a reasonable opportunity to be heard in that he had filed documents stating that he would not enter a plea and otherwise indicating jurisdictional arguments, and those documents were on the court file.

(b) At the hearing, the plaintiff had already had the opportunity before the judicial registrar to state that he was proposing to make jurisdictional and constitutional arguments; but he had not sought an adjournment.

(c) The recording shows that he was not calm and collected and that he was obstructionist.

(d) The Court ought to take into account the busy nature of the Magistrates' Court.

18 It is common ground that the test to be applied by a court before exercising the power to remove a party from court was conveniently stated by Williams J in the King v Abrahams as follows:

The primary and governing principle, is, I think, that in all criminal trials, the prisoner has a right as long as he conduct himself decently to be present and ought to be present whether he is represented by counsel or not.[4]

He has a right to be present subject only to one qualification and that is that he does not abuse that right. If he abuses that right for the purpose of obstructing the provisions of the court by unseemly, indecent or outrageous behaviour, the judge may have him removed and proceed with a trial in his absence.[5]

19 The accused has a fundamental right to be present. This fundamental right is only lost if it becomes necessary by reason of the accused abusing the right to be present. The loss of this right may occur where the accused uses his or her right to be present to obstruct the proceedings in such a way that it is necessary for him or her to be removed to enable the proceeding to be completed. Where an accused is, by his or her outrageous behaviour, preventing a proceeding from continuing, a court may remove such an accused so as to avoid the consequence of being unable to complete a proceeding.

20 In my opinion, the judicial registrar did not accord the plaintiff procedural fairness in requiring him to be removed in the circumstances, which I summarise as follows:

(a) After the plaintiff refused to enter a plea, the judicial registrar quite properly asked the plaintiff to be seated in the court.

(b) The accused indicated his preference to 'retain his standing'. I do not consider this was in disobedience to the judicial registrar's direction. The plaintiff was a litigant in person and the judicial registrar could have explained to him that the purpose for him being asked to sit down was to enable the prosecution case to proceed.

(c) For the judicial registrar to proceed, after the accused had expressed his preference to retain his standing, and direct that he either leave the court or he would be removed from the court, was a breach of the court's obligation to provide procedural fairness to the plaintiff.

21 The circumstances described fall a very long way short of satisfying the test described in Abraham's case[6] that a person may lose his right to be present if the person has abused that right for the purpose of obstructing the proceedings by unseemly, indecent or outrageous behaviour.

22 In my opinion, the fact that the plaintiff had sent written submissions to the court before the hearing, is not relevant in determining whether the judicial registrar was therefore right to deprive him of the opportunity of putting those or other submissions orally at the hearing. Although I make no comment on the merit of such submissions, the plaintiff had a right as the accused to put those submissions; and the judicial registrar should not have ordered him to be removed prior to hearing the evidence.

Should the Court exercise its discretion to refuse relief?

23 I reject the defendant's submission that, by reason of the fact that the plaintiff had available to him an alternative remedy in the Magistrates' Court, I should exercise the discretion under O 56 of the Rules and refuse to grant the relief sought by the plaintiff.

24 Although it is true that an application could have been brought for a hearing de novo, in my opinion, I should not exercise my discretion to refuse relief for the following two reasons:

(b) Even in a busy Magistrates' Court, it is critical that the judicial registrars recognise their obligation to accord parties procedural fairness. The efficiency of the court cannot be used as an excuse to override a party's right to procedural fairness.

25 In those circumstances, I propose to give judgment for the plaintiff and order that the decision of the judicial registrar be quashed, that the matter be returned to the Magistrates' Court to be determined in accordance with law.

[1] [2014] VSC 308.

[4] [1895] ArgusLawRp 62; (1895) 21 VLR 343, 346 ('Abraham's case'); adopted in R v Vernell [1953] VicLawRp 79; (1953) VLR 590, 592.

[6] [1895] ArgusLawRp 62; (1895) 21 VLR 343, 347.