Carra v Hamilton [2001] VSC 215

For the reasons set out in paragraph 20 below, it was some two months before the parties became aware that the judgment had been delivered.

24. The Magistrate made no order for the payment of interest. It is common ground that interest under what is now section 58 of the Supreme Court Act 1986 ("the Supreme Court Act") is allowable on damages recovered in the Magistrates' Court (Buronga Truck Sales & Service Pty Ltd v Callipari [1984] VicRp 6; [1984] VR 59). It is also common ground that a Registrar of the Magistrates' Court has no power to fix costs.

27. In No 5484, issued on 23 May 2000, the Carras seek, in summary (see further paragraph 38 below), orders providing for interest and costs in relation to the Magistrates' Court proceeding. The time limited in Order 56.02(1) of the Supreme Court Rules for the commencement of No 5484 was extended to 23 May 2000 by Master Wheeler on 20 July 2000.

30. In No 7362, issued on 25 October 2000, the Hamiltons seek, in summary, a declaration that there has been no determination or judgment given in the Magistrates' Court proceeding and an order that that proceeding be re-heard.

33. The Hamiltons sought an order for extension of the time for commencement of proceeding No 7362, and the Court file shows that on 6 February 2001 Master Wheeler ordered that the time for commencement of that proceeding provided for in Rule 56.02(1) of the Supreme Court Rules be extended to 25 October 2000. The Court file also shows that on 12 February 2001 the Carras by their solicitors gave notice of their intention to appeal against "the judgment order of Master Wheeler" made on 6 February. There is no other material on the Court file relating to any such appeal, and it is not referred to in any of the affidavit material before me, most of which predates the Notice of Appeal.

36. I was informed by counsel that the appeal had come before Beach J, and that it had "seemed more appropriate that the determination of that issue be left to the trial judge". There is no record of any relevant order on the Court file, but the matter proceeded on the basis that the appeal was before me. For reasons which will become apparent, the appeal is best dealt with when the facts have been established.

40. There has been some confusion in the evidence, first as to what happened when the judgment was delivered, and second, as to the recording of that judgment. The only witness as to those matters was Mr Stebbings, who has been since May 1999 Regional Co-ordinating Registrar of the Magistrates' Court at Bendigo, and a Deputy Registrar of the Magistrates' Court, and who has been employed in that court since 1986. Mr Stebbings swore an affidavit in this proceeding on 12 December 2000 and gave oral evidence. There are several affidavits before the Court sworn by practitioners representing parties in this matter who deposed to conversations with Mr Stebbings. Those affidavits are in parts inconsistent with evidence given by Mr Stebbings. His statements as recorded by those practitioners, as well as his sworn evidence, have varied over time. Both in evidence in chief and in cross-examination he made statements inconsistent with his affidavit and with statements recorded by the practitioners.

43. Nevertheless, having had the opportunity of observing the demeanour of Mr Stebbings in the witness box, I find him to be a witness of truth. I accept that the occasion of the handing down of the judgment in January 2000 was largely a matter of routine for him, save for the fact that it was Mr Byrne's last day of service as a magistrate, and that there was no particular reason why he should have noted or remembered such details as whether there was anyone else in the courtroom. I accept that as time went on he made further searches of court records, which enabled him to expand on, and in some cases to contradict, his earlier statements. He was open and frank about his inconsistencies and errors, and about his oversight, discussed below, as to the recording of the judgment. He did not attempt to deny that he had made statements recorded by others which he did not recall.

46. Thus the following findings of fact are made chiefly on the basis of Mr Stebbings' evidence.

49. Dealing first with the delivery of the judgment, it is common ground that the parties had not been notified that the judgment was to be delivered on 7 January 2000. Mr Byrne was on recreation leave in the first week of January. He arrived at the Bendigo Magistrates' Court on 7 January and told Mr Stebbings that the Court had to be opened because he had a judgment to deliver as it was his last day as a magistrate. Until then, Mr Stebbings had not known that the judgment was to be delivered that day.

52. Other matters, in the criminal jurisdiction of the Magistrates' Court, were also dealt with that morning by the duty magistrate in Court Room Number 2 at Bendigo. After those matters were disposed of, Mr Byrne entered that courtroom and delivered the judgment in the presence of Mr Stebbings, who acted as bench clerk. The last paragraph, containing the actual decision, was read aloud, and the reasons for decision were not read. Mr Byrne then handed to Mr Stebbings the document from which he had read in court. It was in typed form, signed by Mr Byrne over a signature block which read:

58. Unfortunately, Mr Stebbings overlooked turning on the audio tape for the delivery of the decision, despite his awareness that Practice Note No 1 of 1999 was in force, requiring all proceedings before the Magistrates' Court to be recorded by means of audio recording equipment.

61. The evidence of Mr Stebbings was consistently that the judgment was delivered in open court, although he did not recall whether there were any people in the courtroom at the time apart from himself and Mr Byrne. It is common ground that no representative of either party was in court. This question is dealt with further at paragraphs 29 and following below.

64. Mr Stebbings said that the procedure for recording decisions in the civil jurisdiction of the Magistrates' Court is that a document known as a "decision sheet" is generated by computer before a case is heard, and is handed to the magistrate hearing the case. Details such as the date, time, place, names of the parties and number of the case are inserted by the computer. The decision sheet is printed to include boxes and other spaces to enable the magistrate to record the decision conveniently in a standard summary form. When this is done the decision as recorded on the decision sheet is entered in the computer and the decision sheet is then placed on the court file.

67. In this case no decision sheet had been prepared at the time of delivery of the judgment. Mr Stebbings overlooked the absence of a decision sheet, and the file was filed away without any record of the judgment being entered in the computer and without the parties being made aware that the decision had been handed down. On 7 March 2000 Mr Stebbings became aware of his oversight and was concerned to enter the decision into the computer system. He caused the computer to generate a decision sheet showing the date 7 January 2000 and arranged for Mr Byrne to insert the details of the decision and sign the decision sheet.

70. The solicitor for the Carras received a copy of the judgment on 8 March and notice of the order on 9 March. Similar documents were received on 9 March at the office of the solicitor for the Hamiltons, who was then on leave and became aware of them on his return. He applied for and received a certified copy of the order which begins with the statement: "On 07/01/2000 the Magistrates' Court at Bendigo made the following entries in the register". A document to the same effect was received by the solicitor for the Carras. That statement is of course incorrect, in that the entries were not made until after 7 March.

Time for bringing the Magistrates' Court proceedings

74. It is convenient to deal at this point with the appeal by the Carras against the order of Master Wheeler that the time for commencement of proceeding No 7362 provided for in Rule 56.02(1) of the Supreme Court Rules be extended to 25 October 2000.

77. It is not in issue that that proceeding was not "commenced within 60 days after the date when grounds for the grant of the relief or remedy claimed first arose" as required by Rule 56.02(1), and was in fact commenced more than seven months after the expiry of that period, on 25 October 2000. Rule 56.02(3) provides:

The Court shall not extend the time fixed by paragraph (1) except in special circumstances.

81. In Prencipe v Nisselle (unreported, decided on 20 April 1999) I had cause to consider the expression "special circumstances" in that provision, and it is convenient to repeat some of what I there said.

The expression "special circumstances" is frequently used in legislation, and must in each case be considered in the context, both substantive and verbal, in which it appears. To begin with, it seems clear to me that Rule 56.02(3) does not require that there be special circumstances related to the reason for the late commencement, but requires merely that special circumstances be present. The Rule is, however, expressed negatively rather than positively; it would appear that the extension of time to commence proceedings is to be discouraged rather than encouraged. . . .

McDonald J in Schwerin v Equal Opportunity Board [1994] VicRp 60; [1994] 2 VR 279 was concerned with section 109(5)(a) of the Magistrates' Court Act 1989, giving the Court power to extend time if it is of the opinion that the failure to institute an appeal from the Magistrates' Court within the prescribed time "was due to exceptional circumstances". That provision differs from Rule 56.02(3), not only in the use of "exceptional" rather than "special", but also in the required causal connection between the circumstances and the delay, and accordingly is not of assistance to me. "Exceptional circumstances" in my view must be more extreme, further from the ordinary, if I may put it that way, than "special circumstances".

Holding that view, as I do, I must, with reluctance, disagree with the inclusion of the words "exceptional" and "extraordinary" (which is further again from the ordinary) in the statement by Beach J in Denysenko v Dessau [1996] VicRp 65; [1996] 2 VR 221 at 224 that:

`Special' when used in this connection [i.e. in Rule 56.02(3)] must mean something unusual, uncommon, exceptional or extraordinary.

Having said that, I would say that I regard the use of those words as obiter dicta, given the decision which His Honour came to in that case. . . .

In In re Norman (1886) 16 QBD 673 at 677 the English Court of Appeal was concerned with a provision to the effect that a bill of costs was not to be taxed when twelve months had elapsed since its delivery, "except under special circumstances". That expression is effectively the same as the phrase "in special circumstances" which is in question here. Lopes LJ said at 677:

The statute uses the words "special circumstances". Those are wide, comprehensive, and flexible words, and I think that the legislature intended them to be so, and that no Court can or ought to lay down any exhaustive definition of them. Charges which in one case would be special circumstances, in another would not be such. It is for the discretion of the judge to say what are special circumstances in a particular case. I cannot express my meaning better than by adopting the words of Bowen LJ in In re Boycott (1885) 29 Ch D 571 at 579 when he said:

Special circumstances, I think, are those which appear to the judge so special and exceptional as to justify taxation. I think no Court has a right to limit the discretion of another Court, though it may lay down principles which are useful as a guide in the exercise of its own discretion. It seems to me to be the true view of the statute, that there must be special circumstances making the payment differ from an ordinary payment, and that the judge thereupon has a discretion as to whether they are sufficient to authorise taxation.

That is entirely in accordance with my view, and expresses what I desire to convey.

That passage was relied on by FB Adams J in the Supreme Court of New Zealand in Re Hunter, Ex parte Exclusive English Imports Ltd (in liquidation) [1954] NZLR 746 at 752, considering whether there were "special circumstances" within the meaning of section 100(9) of the Bankruptcy Act 1908 (NZ) -to justify delay in lodging a proof of debt. The Court went on to say:

There is also the view expressed by Lord Goddard LCJ in Lines v Hersom [1951] 1 KB 682, 688; [1951)] 2 All ER 650,653 to the effect that `special' circumstances are those which are not of general application. I respectfully adopt the test suggested by these passages and do not think it is possible to go further by way of definition. I think it is impossible to regard circumstances as `special' if they are characteristic of the common run of cases. For this reason it will, in general, be impossible to admit proofs under section 100(9) in cases where the failure to prove has arisen from those circumstances, or combinations of circumstances, which commonly lead to and explain a failure to prove in time. There is thus a wide field in which the Court has no discretion.

I would, with respect, and with reservations as to the use in the above passages of the word "exceptional", adopt that view of the correct approach to the expression "in special circumstances" in Rule 56.02(3). It is consistent with the view of the Commonwealth Administrative Appeals Tribunal, presided over by Toohey J, then a Judge of the Federal Court, in Re Beadle and Director-General of Social Security (1984) 6 ALD 1, in the context of section 102(1) of the then Social Security Act 1947, which provided that a claim for family allowance must be lodged within 6 months of eligibility arising, or "in special circumstances within such longer period as the Director-General allows". The Tribunal said at 3:

An expression such as `special circumstances' is by its very nature incapable of precise or exhaustive definition. The qualifying adjective looks to circumstances that are unusual, uncommon or exceptional. Whether circumstances answer any of these descriptions must depend upon the context in which they occur. For it is the context which allows one to say that the circumstances in one case are markedly different from the usual run of cases. This is not to say that the circumstances must be unique but they must have a particular quality of unusualness that permits them to be described as special.

An appeal from that decision (Beadle v Director-General of Social Security [1984] AATA 176; (1985) 60 ALR 225) was dismissed by the Full Court of the Federal Court (Bowen CJ, Fisher and Lockhart JJ) who said at 228:

The phrase "special circumstances", although lacking precision, is sufficiently understood in our view not to require judicial gloss.

99. The relevant circumstances are the lack of notification to the parties that the decision was to be handed down, and the oversight of Mr Stebbings in not recording the decision, with the result that the parties were not notified of it. The combined effect of those circumstances was that neither party was aware of the delivery of the judgment until more than sixty days after it occurred. I am satisfied, on the basis of what I said in Prencipe v Nisselle, that those constitute "special circumstances" for the purposes of Rule 56.02(3), and that accordingly the discretion to extend the time for commencement of proceeding No 7362 is available. I note that that finding is consistent with the statement of Beach J in Denysenko v Dessau, following on that cited above, that:

The circumstances which must be special must relate to a plaintiff's failure to commence a proceeding in time, not the decision sought to be reviewed.

103. Mr Randall, for the Carras, appealing against the order of Master Wheeler extending time for the commencement of the proceeding, did not suggest that the relevant circumstances were not "special". His submission was that the Hamiltons should not be allowed an extension of time until October. They had been put on notice in May, by a letter to their solicitors from the solicitors for the Carras, that there were possible difficulties with the decision. The Carras had issued their proceeding in May.

106. Having considered that matter, while I have some sympathy for the submission of Mr Randall, I have come to the view that, given all the uncertainties of this case, it is appropriate that I exercise the discretion available to me to dismiss the appeal against the order of Master Wheeler, allowing the issues raised by the Hamiltons to be dealt with on their merits.

110. It is convenient to deal first with the Hamiltons' proceeding. The relevant provisions of the Act read as follows at all relevant times:

(3) The Court shall be constituted by a magistrate except in the case of any proceeding for which provision is made by any Act or the Rules for the Court to be constituted by a registrar.

(1) The principal registrar must cause a register to be kept of all the orders of the Court and of such other matters as are directed by this Act or the Rules to be entered in the register.

(2) An order made by the Court must be authenticated by the person who constituted the Court.

(1) 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.

Regulation 301 of the Magistrates' Court General Regulations ("the Regulations") 1990, which were in force at the relevant time, reads as follows:

For the purposes of section 18(2) of the Act, an order may be authenticated -

(a) if the order is entered in writing in the register, by signing the entry; or

(b) if the order is entered into a computerised data storage and retrieval system, by entering confirmation of the order into the system.

129. The first submission of Mr Northrop, for the Hamiltons, was that the judgment of the Magistrate had not been delivered in open court, as required by section 125(1) of the Act and therefore the decision was void, on the authority of such decisions as that of Fullagar J in Seapack Melbourne Pty Ltd v Clerk of Courts, Magistrates' Court, Yarram (unreported, delivered on 12 June 2000) and McDonald J in Wandin Springs v Wagner [1991] VicRp 85; [1991] 2 VR 496.

132. However, I would have difficulty, on the evidence, in finding that the judgment had not been delivered in open court. The evidence of Mr Stebbings was unshaken on this point and did not vary. Other matters had been dealt with in that courtroom on 7 January before Mr Byrne entered and delivered the judgment. The presence or absence of other people besides Mr Byrne and Mr Stebbings is not, of course, material. The lack of notice to the parties was regrettable, but it cannot be said that, by reason of that lack of notice, the proceedings did not take place in open court. Accordingly, that submission fails.

136. Mr Northrop's other submission was that the order was not "authenticated by the person who constituted the Court" as required by section 18(2) of the Act, and accordingly was invalid.

139. Regulation 301 (set out in paragraph 28 above) provides two methods by which an order may be authenticated. Mr Stebbings said that the civil jurisdiction of the court is the only jurisdiction where the magistrates do not personally enter their decisions in the computer; the procedure in the civil jurisdiction is as described in paragraph 19 above. That procedure would appear to accord with regulation 301(a). In this case the decision sheet, while it bears the computer generated date 7 January 2000, was not in fact signed by Mr Byrne until after 7 March 2000, and by then he was no longer a magistrate.

142. Mr Northrop pointed out that between 7 January 2000 and the date the decision sheet was signed, no order had been recorded and it would have been possible for the decision to be set aside or varied by the Magistrate (Carroll v Price [1960] VicRp 101; [1960] VR 651). However, in my view, taking a realistic approach, the signature of the decision sheet must be taken to have cured that situation, despite the fact that at the time when he signed it Mr Byrne was no longer a magistrate. Section 18(2) requires authentication "by the person who constituted the Court", (scilicet "for the purpose of the making of the order") and Mr Byrne was that person. It is common for there to be a time lag between the oral pronouncement of an order and the authentication of that order, although the time lag in this case was long.

145. The authentication of an order is a formal procedure intended to provide a written record of that order in the register. The position is stated by Lord Esher MR, first in Holtby v Hodgson (1889) 24 QBD 103 at 107:

Pronouncing judgment is not entering judgment; something has to be done which will be a record, and so the judgment that the judge has pronounced is the judgment which is to be entered. No subsequent ceremony, no signing of judgment, is now necessary. . . . the intention of the rule clearly is that, from the moment when the judge has pronounced judgment, and entry of the judgment has been made, the judgment is to take effect, not from the date of the entry, but from the date of its being pronounced; it is an effective judgment from the day when it is pronounced by the judge in court.

And in Guardians of the Poor of West Ham Union v Churchwardens, Overseers and Guardians of the Poor of St Matthew, Bethnal Green [1895] 1 QB 662 at 665:

There cannot be any doubt, I think, that, when the Lord Chancellor has put the question and the resolution of the House upon it has been pronounced, the judgment is then given. The exact terms in which that judgment is to be drawn up have no doubt to be subsequently settled by the proper officer. If the matter presents any difficulty or complication he may consult with the solicitors, or perhaps with the counsel of the parties, as to the exact terms in which it is to be drawn up; but it is impossible to suppose the process of drawing up the judgment is anything but a merely ministerial act.

151. The purpose of the requirement in section 18(2) of the Act that the order be authenticated, in effect, by the person who made it, is no doubt to ensure the accuracy of the record. I note that there is no such requirement in Order 60 of the Supreme Court Rules relating to the authentication of judgments and orders in the Supreme Court, which contemplates that orders will normally be authenticated by the Prothonotary. Rule 60.04, however, enables authentication by signature of the Judge or Master who made the order, or by another Judge or Master "where that Judge or Master is unable for sufficient cause to sign the order". Rule 60A.04 relating to the County Court is in similar terms. There is no such provision in the Act.

154. The fact that Mr Byrne was no longer a magistrate when he authenticated the order does not, in my view, affect the validity of that authentication. He was the "person who constituted the Court" for the purpose of the making of the order. The order had been made at a time when he was still a magistrate and thus had authority to make it, and the purpose of section 18(2) was achieved by the authentication.

161. The originating motion in this proceeding provides that the Carras seek:

1. an order in the nature of certiorari to quash so much of the order of Mr Byrne as relates to costs and to substitute orders that the Hamiltons pay to the Carras:

$2730 damages in the nature of interest from 9 October 1998 to 7 January 2000;

the Carras' costs on a solicitor-client basis from 6 October 1999 to 7 January 2000.

2. alternatively an order in the nature of mandamus directed to the Magistrates' Court of Victoria at Bendigo, requiring it to provide the Carras with the opportunity to make:

application for an order that the Hamiltons pay interest on the judgment sum of $18,406 at the penalty interest rate from 9 October 1998 to 7 January 2000;

application for an order that the Hamiltons pay the Carras' costs on a solicitor/client basis from 6 October 1999 to 7 January 2000;

application pursuant to Order 26.02(2) of the Magistrates' Court Civil Procedure Rules 1989 for an increase in scale items on the grounds of the complexity of the case and the fact that it was conducted on circuit.

3. alternatively an order in the nature of mandamus directed to the Magistrates' Court of Victoria at Bendigo to fix the Carras' costs of the Magistrates' Court proceeding after hearing the submissions of the parties.

173. The grounds on which the relief is sought are set out in the originating motion and in summary, they are:

s that the failure to notify the parties of the proposed delivery of the decision was a denial of natural justice in that the Carras were not given the opportunity to make application for orders for payment of interest or costs; s that the purported delegation to the Registrar of the power to fix costs was ultra vires the Magistrate.

The submissions of counsel on these matters were brief.

(1) The costs of, and incidental to, all proceedings in the Court are in the discretion of the Court and the Court has full power to determine by whom, to whom and to what extent the costs are to be paid.

The Carras, as successful parties to the Magistrates' Court proceeding, understandably seek the exercise of that discretion in their favour. It is apparent from their claim that there are issues to be determined; they are not simply claiming that scale costs should follow the event. As has been said, it is common ground that a Registrar of the Magistrates' Court has no power to fix costs, and that being so, the order of the Magistrate, in so far as it purports to direct that the costs of the proceeding by taxed by the Registrar, is ineffective.

185. In Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163 at 175-176 the High Court (Brennan, Deane, Toohey, Gaudron and McHugh JJ) said:

Where available, certiorari is a process by which a superior court, in the exercise of original jurisdiction, supervises the acts of an inferior court or other tribunal. It is not an appellate procedure enabling either a general review of the order or decision of the inferior court or tribunal or a substitution of the order or decision which the superior court thinks should have been made. Where the writ runs, it merely enables the quashing of the impugned order or decision upon one or more of a number of distinct established grounds, most importantly, jurisdictional error, failure to observe some applicable requirement of procedural fairness, fraud and "error of law on the face of the record". Where the writ is sought on the ground of jurisdictional error, breach of procedural fairness or fraud, the superior court entertaining an application for certiorari can, subject to applicable procedural and evidentiary rules, take account of any relevant material placed before it. In contrast, where relief is sought on the ground of error of law on the face of the record, the superior court is restricted to the "record" of the inferior court or tribunal and the writ will enable the quashing of the impugned order or decision only on the ground that it is affected by some error of law which is disclosed by that record.

189. JD Phillips J pointed out in Hansford v Judge Neesham (1994) 7 VAR 172 at 179 that the dividing line between error of law on the face of the record and want of jurisdiction is not always easy to draw, and it may be that in this case the order that costs be taxed by the Registrar is better characterised in terms of the former rather than the latter. In any case, on either ground certiorari will lie to quash that decision. Accordingly, it is not necessary to consider in this context the claim that the failure to notify the parties of the delivery of the judgment contravened the principles of natural justice.

192. However, it is clear from the passage from Craig v South Australia which is quoted above that the writ of certiorari does not empower the Court to do what the Carras seek; that is, to make a fresh decision in substitution for the decision so quashed. Accordingly the question as to whether the Court should exercise its discretion to make an order quashing the decision of the magistrate as to costs turns on whether, in the circumstances of this case, the Magistrates' Court has power to make a fresh order on the matter of costs. If the Magistrates' Court does have power to make a fresh order, the quashing of the order under review would enable it to do so. If the Magistrates' Court has no such power, the grant of the order for certiorari would be futile, and this has been found to be a ground for refusal to exercise the discretion. (See for example the decision of Fullagar J in R v Registrar-General; Ex parte Lange [1950] VicLawRp 12; [1950] VLR 45 at 54; reversed on appeal on the admission of further evidence in Lang [sic] v Registrar-General of the State of Victoria [1950] VicLawRp 53; [1950] VLR 307).

196. Mandamus will lie, speaking generally, where the respondent has refused to comply with a demand by the applicant to perform a public duty. The complaint filed by the Carras in the Magistrates' Court included a claim for costs. If mandamus is to lie to compel the Magistrates' Court to determine that claim, the Carras must show that the making of an invalid order as to costs can be regarded as a constructive refusal to make an order as to costs in response to that claim.

199. This matter was dealt with in R v War Pensions Entitlement Appeal Tribunal; Ex parte Bott [1933] HCA 30; (1933) 50 CLR 228, where Rich, Dixon and McTiernan JJ said at 242:

A writ of mandamus does not issue except to command the fulfilment of some duty of a public nature which remains unperformed. If the person under the duty professes to perform it, but what he actually does amounts in law to no performance because he has misconceived his duty or, in the course of attempting to discharge it, has failed to comply with some requirement essential to its valid or effectual performance, he may be commanded by the writ to execute his function according to law de novo, at any rate if a sufficient demand or request to do so has been made upon him.

203. Having already found that the Magistrate, in response to the claim of the Carras, made an order as to costs, albeit an invalid order, I am now compelled by the logic of the common law to find that, constructively, he refused to make such an order. Accordingly, mandamus will lie to compel the making of an order as to costs. Again, it is not necessary to consider in this context the submission that the failure to notify the parties of the delivery of the judgment contravened the principles of natural justice, as that submission has no relevance to a claim for mandamus. However, as in the case of certiorari, the question as to whether the discretion to exercise the power to make the order for mandamus should be exercised again turns on whether the Magistrates' Court has power to make a fresh order as to costs. If the Magistrates' Court has no such power, the making of the order for mandamus would similarly be futile. (See for example R v The Public Service Commissioner for the Commonwealth of Australia; Ex parte Killeen [1914] HCA 61; (1914) 18 CLR 586.)

207. Section 58 of the Supreme Court Act provides, in summary, that if in a proceeding a debt or sum certain is recovered, the Court must on application, unless good cause is shown to the contrary, allow interest to the creditor on the debt or sum at the rate provided for, from the time when the debt or sum was payable. As has been said (see paragraph 7 above) interest under section 58 is allowable in the Magistrates' Court. The Carras, having been successful in the Magistrates' Court proceeding, understandably see themselves as entitled to the payment of interest under that provision, there being no suggestion of any good cause to the contrary.

211. The Magistrate made no order as to interest and thus there is no order which could be quashed in this proceeding by an order for certiorari. In any case, as has been said, any such order could not enable the order for the payment of interest which is sought by the Carras.

215. The complaint filed by the Carras in the Magistrates' Court included a claim for interest. Having made no order in response to that claim, the Magistrate may be taken to have refused to determine the claim, and mandamus will lie to compel its determination. Yet again, the question as to whether the discretion to exercise the power to make the order should be exercised will turn on whether the Magistrates' Court has power to make that determination_._

The power of the Magistrates' Court to make a fresh decision

219. I now turn to consider the question whether, Mr Byrne having retired, there is power in the Magistrates' Court:

s if the costs order is quashed by an order for certiorari, to make a fresh order as to costs; s to comply with any order for mandamus directing the making of an order in response to the Hamiltons' claims for costs and interest.

223. In the case of this Court, the question is dealt with by section 87(2) of the Constitution Act 1975 ("the Constitution Act") which reads:

(2) Despite anything in any Act or the Rules, any power, duty or act which might have been exercised or performed by the Court constituted by a Judge or by a Master may be exercised or performed by the Court constituted by any other Judge or Master (as the case requires) if the Court cannot for any reason be constituted by that first-mentioned Judge or Master.

Similarly, section 15 of the County Court Act 1958 ("the County Court Act") reads:

Notwithstanding anything in any Act any power duty or act which might have been exercised or performed by any judge or master of the County Court but for his having ceased for any reason to be a judge or master of the County Court or for his absence on leave or vacation or in consequence of sickness or otherwise shall be exercisable or performable by any other judge or master (as the case requires) of the County Court.

There is no corresponding provision in the Act, and the answer to the question must be sought in the common law.

230. The jurisdiction of the Magistrates' Court to make orders as to costs and interest appears from paragraphs 40 and 47 above respectively. The question is whether, Mr Byrne having retired, those jurisdictions can be exercised by another member of that Court.

233. A number of reported cases deal with the situation where a judge has died, or otherwise become unable to sit, at a stage where a proceeding involving the hearing of evidence has not been completed and there is no relevant statutory provision corresponding to those appearing in the Constitution Act and the County Court Act. Discussion of the problem conventionally begins with Coleshill v Manchester Corporation [1928] 1 KB 776. In that case the judge died after hearing three of the plaintiff's witnesses and was replaced by another judge who continued the case "at the urgent request of the parties" before the same jury, without rehearing those witnesses. In the Court of Appeal Scrutton LJ at 785-786 expressed in the following terms his disapproval of that course:

I can understand that in the unprecedented and painful circumstances it is unnecessary to take any objection to what happened, but I think it is a precedent which should not be followed in future. I doubt whether a judge has any jurisdiction to continue the hearing of a case in which witnesses have been called in Court in the course of the trial before the jury and another judge, it not being a case of evidence being taken on commission or before an examiner.

237. Sir Robert Megarry in A Second Miscellany-at-Law (1973) at 54 (see the passage from the judgment of Priestley JA in Wentworth v Rogers (No 3) (1986) 6 NSWLR 642 cited in paragraph 58 below) observes of the words of Scrutton LJ "it is perhaps not unfair to say that they have been distinguished with more zest than they have been followed." In The Forest Lake [1968] P 270 the judge had retired through ill-health while the case was part heard and a hearing de novo had been ordered. The question was whether the evidence already given was admissible at the re-hearing without recalling the witnesses. Karminski J in distinguishing Coleshill was clearly influenced by considerations of the difficulty and expense which would have been entailed in recalling witnesses who were masters, first officers and other members of ships' companies.

240. The High Court (Williams ACJ, Webb and Kitto JJ) said in Brennan v Brennan [1953] HCA 28; (1953) 89 CLR 129 at 136-137:

The real objection to the further proceedings before Clancy J. was that, in a case which raised important issues of fact, as to which conflicting evidence had been given before Edwards J., his Honour decided to proceed from the stage the hearing had reached before Edwards J. and not to hear the whole suit de novo. There are cases in which such a course has been pursued: Coleshill v Manchester Corporation (1928) 1 K.B. 776; In re Application of British Reinforced Concrete Engineering Co Ltd (1929) 45 T.L.R. 186; Bolton v Bolton (1949) 2 All E.R. 908. In all these cases the Court on appeal criticised the course that had been followed but accepted what had been done and did not order a new trial. There are, we think, in most cases grave objections to such a course and the objection becomes graver when there is, as in the present case, a serious conflict of evidence. But the parties were all represented by counsel or solicitors and they all requested his Honour to take the course he did. It was open to any of the parties to apply to his Honour for leave to recall any of the witnesses for examination if they thought fit, but they all elected not to do so and the two witnesses who were further examined were recalled at his Honour's request. "If a litigant has himself induced, acquiesced in or waived the irregularity he cannot afterwards complain of it": Marsh v Marsh (1945) A.C., at p. 285. In these circumstances it appears to us that we should, if we can, consistently with the public interests which are involved in divorce proceedings, dispose of the appeal on the materials before us. To order a new trial at this stage would involve a great deal more expense than would have been incurred if the hearing before his Honour had proceeded de novo. After much consideration we have decided to proceed on the materials before us.

244. In Orr v Holmes [1948] HCA 16; (1948) 76 CLR 632, an order for a new trial was made by the Full Court of the Supreme Court of Queensland and the question of costs reserved. Before that question was dealt with, one member of the Full Court died, and the Court, differently constituted, made the order for costs. An objection to that procedure was rejected by Dixon J in the following terms at 637-638:

An order had been pronounced upon the appeal or application for a new trial. The order which was drawn up included a specific provision adjourning or reserving the question of costs and so treating it as a distinct matter. The case is not one of the death of a judge before the hearing and determination of a proceeding are concluded by a court of which he is a necessary member. The order had disposed of the proceeding before the court and, as a matter of jurisdiction, the Supreme Court constituted as a Full Court in any manner might hear and determine the question of costs adjourned or reserved. No doubt as a matter of convenience the court would not be differently constituted to deal with costs that are adjourned or reserved, if it could be avoided. But that consideration does not affect jurisdiction.

It does not appear that there was any relevant statutory provision.

249. The passage cited from Orr v Holmes in the preceding paragraph assumes a complete separation between the substantive issues on the one hand and the issues which might arise on consideration of the question of costs on the other. It is to be noted that there is in the matter before me a claim for solicitor-client costs in respect of a specified period. Whether the determination of that claim will involve consideration of evidence which was before Mr Byrne is a matter not within my knowledge. But it seems to me that I must consider the question before me on the basis that there is not a complete separation between the matters which were before Mr Byrne and the matters to be considered in relation to at least the claim for costs.

252. More directly on point, as relating to the decision of a single judge rather than of a Full Court of three judges, is Wentworth v Rogers (No 3) (see paragraph 54 above), where the issue arose in the following circumstances. Cantor J in the Supreme Court of New South Wales had heard and determined an application for public interest immunity made by the Attorney-General of New South Wales in answer to a subpoena addressed to him. Argument on costs was adjourned. Cantor J fell ill before the matter of costs came on for hearing and it was heard and determined by Maxwell J, who had read the papers which had been before Cantor J. Leave was sought to appeal against the costs order. There was no relevant statutory provision.

255. Priestley JA, with whom Glass JA agreed, said at 653:

The circumstance of the change of judge was made the subject of a submission that Maxwell J had no jurisdiction to make the orders which he did. I do not think this can be right. If a judge is unable through absence to make an order which needs to be made for some proceeding before the court to be completed there must be jurisdiction in the court enabling another judge to make the order. The question which can present difficulties in such circumstances is the extent to which the new judge can use materials already before his predecessor in arriving at his conclusion. Very often this problem is solved by the parties' agreement to the new judge making such use of the material before his predecessor as he sees fit. What the position is in the case where the parties do not agree does not appear to be the subject of any clear authority binding on this Court. In England the only place where the matter is at all fully discussed appears to be in Sir Robert Megarry's A Second Miscellany-at-Law (1973) at 53-58. Both the Supreme Court Practice (1985) vol 1 at 24, and Halsbury's Laws of England, 4th ed, vol 37 par 61 at 53 refer to Sir Robert Megarry's work as the best discussion of the topic, showing that a stone of authority may lie concealed amongst flowers of anecdote. In the present case, however, I do not think it necessary to investigate the law in cases where use by the new judge of the materials before his predecessor is opposed. In the present case the inference I draw from the materials before this Court showing what happened before Maxwell J is that the applicant's representatives took part without demur in the proceedings before Maxwell J in the course of which it was transparently clear that his Honour was making use of the materials which had been before Cantor J. Once the applicant's representatives took part in those proceedings, for which as I have earlier remarked there must undoubtedly have been jurisdiction, without complaint about the procedure adopted, I do not think that the applicant, in the circumstances of the case, can later seek to make that procedure the subject of application for leave to appeal. In my opinion the present application should be dismissed with costs.

259. Kirby P considered the authorities at some length and concluded at 650 that the application for leave to appeal should be dismissed on the basis that:

Whilst the present case falls short of the circumstances that faced the High Court in Brennan, in the sense that the status of the parties is not determined by the order under challenge and there was not in this case, as in Brennan, a positive request by the parties to the second judge to proceed as he did, the cases are sufficiently analogous to give guidance to the established way in which challenges of the present kind should be considered. Whilst it would not do a grave injustice to require (so far as that is now possible) a de novo hearing of the costs argument, it would certainly involve some injustice, delay and expense. Furthermore, when the substance of the matter is examined, and the ruling made by Maxwell J considered against the facts as known to this Court, it can be said with confidence that no such injustice has occurred as requires leave to appeal against his Honour's interlocutory order. In these circumstances, although an irregularity may have occurred, it is not one which requires the leave of the Court to permit an appeal.

263. All of the authorities which I have cited indicate that there are, as the High Court said in Brennan, "grave objections" to a judicial officer completing a matter heard in part by another judicial officer without rehearing the evidence heard by the first judicial officer; or to a judicial officer making a further order when the substance of the matter has been dealt with by another judicial officer. However, it is clear from those authorities that in the end, where the interests of justice and the necessity of the case dictate, that is the procedure which must be adopted, even in the absence of a relevant statutory provision. A court will, understandably, form that view more readily if the parties are in agreement with that course or have waived their right to object.

266. Dealing with the question before me proleptically, as I must, I cannot presuppose consent or waiver by the parties. What I do presuppose, in the place of that consent, is the making of orders of this Court, on the basis set out in paragraphs 46 and 49 above, directing that the Magistrates' Court make orders as to costs and interest. It is clear that in the proceeding before the Magistrates' Court the object of a fair trial has not been achieved to date and will not be achieved if the Magistrates' Court has no power, in all the circumstances, to deal with the claims for costs and interest. Irremediable prejudice would be suffered by the Carras if that were the case. I am satisfied that justice and the necessity of the case require that the Magistrates' Court be empowered to deal with those claims on the making of the orders contemplated.

269. Accordingly, I find that it is appropriate, in all the circumstances of this case, that I exercise the discretion to make the orders for certiorari and mandamus referred to in paragraphs 42, 46 and 49 above.

273. For these reasons there will be the following orders:

1. that the appeal of the Carras lodged on 12 February 2001 against the order of Master Wheeler made on 6 February 2001 that the time for commencement of proceeding No 7362 of 2000 be extended to 25 October 2000 be dismissed; 2. that proceeding No 7362 of 2000 be dismissed; 3. that in proceeding No 5484 of 2000: (a) there be an order in the nature of certiorari to quash the order made by Mr Byrne, Magistrate, in proceeding No L02380124 in the Magistrates' Court of Victoria at Bendigo on 7 January 2000, insofar as it relates to costs; and (b) there be an order in the nature of mandamus directing the Magistrates' Court of Victoria at Bendigo to hear and determine the claims of the Carras in proceeding No L02380124 for interest and costs.

Counsel may wish to make submissions as to the costs of this proceeding.