Corrado v Gebhardt [1999] VSC 35

Corrado v Gebhardt [1999] VSC 35 - VSC 1999 case summary — Zoe

[29]

The two grounds argued before me were (1) that the first defendant failed to observe and apply the requirements of procedural fairness. This appeared to have two aspects, first, that the judge failed to draw to the notice of counsel for the plaintiff (the respondent on the appeal) that he was considering making an order under s.75 of the Sentencing Act which did not involve the recording of a conviction or the imposition of a fine, so as to provide a fair opportunity for contrary argument to be presented, thereby failing to afford the plaintiff an opportunity of responding to submissions on behalf of the second defendant before allowing the appeal. I should say that it does not appear that counsel for the second defendant, the appellant before the judge, had specifically put a submission that there should be no conviction and no fine although he had commenced to develop submissions in relation to matters in mitigation. The second aspect of the procedural fairness complaint is that the learned judge failed to draw to the notice of counsel for the plaintiff views held and expressed by the judge in his reasons for sentence "represented in the decision in Tower Crane". I propose to deal with the second of these matters immediately as in my view it is wholly without merit and was not much developed by counsel for the plaintiff before me. Tower Crane was one of the cases in the case summaries which is a very substantial exhibit containing a mass of cases most of which were utterly irrelevant to the matters before this judge and which were not specifically addressed by counsel for the prosecution when making submissions on the appeal. Tower Crane Specialists Pty. Ltd. was a case in which a employee of that company had sustained injury when he fell from scaffolding when it was being disassembled; the defendant was convicted and fined $26,000 on a charge under a different section of the Act. On appeal to the Melbourne County Court the judge affirmed the penalty, conviction and fine. The only aspect of the report of that case which could have any relevance to Judge Gebhardt in respect of this matter was the third paragraph in the four-paragraph summary of it to this effect:

[33]

Before proceeding to a consideration of the grounds, I will briefly deal with non-contentious legal aspects. First, whilst I propose to say something later in these reasons concerning the use of Order 56 proceedings in cases of this kind, there can be no dispute that relief in the nature of certiorari under Order 56 is available to correct errors of the County Court made in the exercise of its appellate jurisdiction pursuant to s.83 of the Magistrates' Court Act. See: Hansford v. Judge Neesham (1994) 7 V.A.R. 172 at 178 (J.D. Phillips, J.); Brand v. Parson [1994] VicRp 17; [1994] 1 V.R. 252, Fagioli v. Ure (1996) 84 A.Crim.R. 504; and Flynn & Ors v. DPP & Anor [1998] 1 V.R. 322. It has been recognized that relief in the nature of certiorari as envisaged within Order 56 reaches to grounds which will include (1) a lack of procedural fairness or breach of natural justice; (2) jurisdictional errors; (3) errors on the face of the record. No argument was advanced before me that the remedy sought was not arguably available on this proceeding. Thus I need not consider for the purpose of this case the issue of whether relief in the nature of certiorari may go to correct an error of law or failure to provide procedural fairness when the County Court is exercising jurisdiction pursuant to s.83 of the Magistrates' Court Act in appeals against sentence for offences contrary to the Occupational Health & Safety Act 1985. Second, there is no issue argued before me concerning what is the record for the purposes of the error in the face of the record or to enable the perception of any procedural unfairness or breach of natural justice. I have had occasion in other decisions to consider the effect of the decision of the High Court of Australia in Craig v. South Australia [1995] HCA 58; (1995) 184 C.L.R. 163 at 175-176. There is no dispute about what is the record in this case. Section 10 of the Administrative Law Act 1978 provides that in a case of an inferior court (such as the County Court) the "record" includes any reason given for the decision whether in writing or orally. See also Hansen (supra) and Flynn (supra) and my own observations in Frugtniet v. Victoria Legal Aid, unreported, 11th March 1997. In that case I expressed the view that in many cases the Court may need to refer to some background material to make the record which has to be examined accessible and meaningful. In this case it is not necessary to examine this aspect further as both plaintiff and second defendant in their affidavits and exhibits filed in this proceeding freely referred to what transpired in the course of the hearing and the relied on the exhibits tendered. These included, as I have indicated, the outline of the case for the respondent prepared and addressed by Mr. Maidment for the respondent, the affidavit of Mr. Lac (Exhibit MCK4), the summary of recent prosecution documents, the instructor's re-constructed notes of the proceedings and the summary of cases.

[40]

Moreover, the plaintiff's submissions to me proceeded upon the basis that the prosecutor-respondent in the County Court had a right of reply. By that I mean, an ineluctable ineradicable right to reply to submissions made subsequent to the prosecution submission, in order to rebut them. This misconceives the nature and procedure of an appeal to the County Court from a magistrate. It is a rehearing. It is not an appeal strictly so called to an appellate court in which the conventional practice is that the prosecutor might briefly open the facts and law to the appeal court, have the appellant present its argument on the appeal, with the prosecution replying. This was not such an appeal. It was a hearing de novo, in the words of the Act, a rehearing. The obligation lay upon the prosecution as it normally does, to put the whole of the case on fact and law to the judge in opening and in the calling of evidence. The appellant, really the defendant for the purposes of the rehearing, makes its defence response on the law or with evidence. It may be that in some cases the tribunal might invite the prosecuting respondent, in respect of matters about which doubt is held or legal argument might thought to be helpful, to make further submissions. In my judgment, there is no right in County Court appeals for the opening respondent to reply. Even if I am wrong in my judgment of that procedural propriety, this was not a case in which it could be said that having regard to the way in which Mr Maidment presented the case that he had such a right. It was an appeal on the matter of sentence only. The number of options was limited, and not difficult to perceive. It is absolutely clear from the reading of the submissions made and prepared by counsel for the prosecution that he was putting the case that there should be no reduction in the sentence. He did address the Court (although it must be said that he appears to have been so confident about his position that he did not develop the argument) by insisting upon the maintenance of the sentence imposed by the magistrate. Thus he was conscious of and anticipated the chance of the risk that a more lenient sentence might be imposed. That is a matter which he should have specifically raised with the County Court judge when he addressed the County Court judge. If that is incorrect, although it may have involved some interruption to the learned County Court judge, he should have raised the issue of his right to further address, or his desire to do so, as soon as he became aware of what the judge was doing. Not only did he not do that, he confined his observations to matters involving the acceptance of what had been said. See also Autodesk Inc v. Dyason (No. 2) [1993] HCA 6; (1992-3) 176 C.L.R. 300.

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