Djime v Le [2016] VSCA 202

JUDICIAL REVIEW - Originating Motion - Application for leave to appeal - Self-represented Plaintiff - To set aside summary changes proven in Magistrates' Court - In part seeking to contest findings - Desiring to recover damages but not claimed in the originating motion - Supreme Court (General Civil Procedure) Rules, O 56.

CRIMINAL PROCEDURE - Summary offences - Time of commencement of proceeding - Whether within 12 months after offence - Whether charges were issued by Registrar of Magistrates' Court - Criminal Procedure Act 2009, ss 6, 7, 12, 13 and 399 - Magistrates' Court Criminal Procedure Rules 2009, rules 8(1) and (2), and 10.

1 This is an application for leave to appeal against the order of a judge in the Trial Division which dismissed an appeal from the order of an associate judge which dismissed, on a summary application, an originating motion. The parties to the originating motion were Hamadou Djime as plaintiff and a police officer, Matthew Le, as defendant. They are the applicant and the respondent respectively to the present application.

2 The events which gave rise to the originating motion occurred at premises at 13 City Place, Sunshine on 18 September 2013. The crux of the matter was that the applicant, claiming entitlement to do so pursuant to a written tenancy agreement dated 17 September 2013 between himself as tenant and one Anthony Besanko as landlord, sought, with the aid of a locksmith, to enter the subject premises. He was prevented in that attempt by Anthony Besanko's brother, one Gilberto Besanko. It seemed that Anthony Besanko had changed his mind about the letting to the applicant. In any event, the police attended and sought to placate matters, advising the applicant that it was a civil matter and to seek advice as to his rights. But the applicant, asserting himself, entered the premises, in the process pushing past Gilberto, and refused police requests to leave whereupon, against his resistance, he was handcuffed and removed from the premises. Once outside he was again advised to seek advice, the handcuffs were removed and he left the scene.

3 Arising out of these events the applicant was charged with three offences: unlawful assault of a police officer, Sergeant Kearnes (charge 1); resist police (charge 2); and unlawful assault of Gilberto Besanko (charge 3). The informant was Mr Le, the respondent to the originating motion.

4 The charges were heard over several days at the Magistrates' Court at Sunshine. The Magistrate reserved his decision. On 5 March 2015, for reasons then stated, the Magistrate dismissed charge 1, found charges 2 and 3 proved but adjourned them without conviction to 9 September 2015, released the applicant on his undertaking to be of good behaviour in the meantime and ordered him to pay $650 to the Court Fund.

5 On the same day the applicant lodged an appeal to the County Court. That appeal would have involved the rehearing of the charges. However, on 28 July 2015 the appeal was abandoned.

6 The applicant did not seek to exercise the right to appeal to the Supreme Court on a question of law under s 272(1) of the Criminal Procedure Act 2009 (Vic) (CPA).

7 It is pertinent to note that on 25 July 2014 the applicant instituted a proceeding in the Victorian Civil and Administrative Tribunal in which, in part, he alleged that in the above events on 18 September 2013 the police discriminated against him on the basis of his race. By decisions given on 26 June 2015[1] and 23 December 2015[2] the claims were dismissed.

8 The originating motion was filed on 4 May 2015 pursuant to O 56 of the Supreme Court (General Civil Procedure) Rules 2015 (Rules). The proceeding was thus an application for judicial review. Mr Le is the sole defendant.[3] The Magistrates' Court should also have been named as a defendant[4] but it was not, and has not been added as such.

9 The relief or remedy sought was specified as follows:

Strike out or Dismiss the Fake, Unauthorized, Out of statute of limitation, and Invalid charges forged by the Informant, the Police Officer Constable Matthew Le.

10 The grounds on which the relief or remedy was sought were expressed somewhat infelicitously and sometimes with extravagance. Attending to their substance, they contend:

11 The charges were invalid because they were not filed with a registrar of the Magistrates' Court, as required by s 14 of the CPA. It is also alleged that the charge-sheet and summons were invalid for the further reason that they were undated, unsigned and/or they were 'fake' bearing 'fake stamp, date and signature' of the Magistrates' Court.

12 The charges were commenced more than 12 months after the date of offence, contrary to s 7(1) of the CPA. Hence, the charges were invalid.

3 Grounds 3, 4, 5, 7, the balance of Ground 8, and 9

13 That in various respects the Magistrate erred in that he failed to consider certain matters of evidence (grounds 3 and 4), ignored perjury of Sergeant Kearnes (ground 5), failed to take into account that Sergeant Kearnes was acting out of his duty as a police officer when he arrested the applicant and evicted him without a warrant of possession (ground 7), and wrongly considered the tenancy agreement as not being important to his decision (ground 9).

14 These grounds concern the merits of the Magistrate's findings and conclusions on the evidence, consideration of which is not appropriate or permissible on a proceeding for review under O 56. No more need be said about them.

15 On 2 December 2015, on the application of the respondent, Ierodiaconou AsJ dismissed the proceeding pursuant to s 63(1) of the Civil Procedure Act 2010 (Vic). That is, on the basis that the proceeding had no real prospect of success. No order was made as to costs, none having been sought. Her Honour's reasons were attached to the order.

16 An appeal by the applicant from that decision was heard by Zammit J who, on 19 February 2016, dismissed the appeal with no order as to costs.[5]

17 The applicant now seeks leave to appeal against Zammit J's decision. To obtain leave the applicant must satisfy the Court that the appeal has a real prospect of success.[6]

18 In presenting his case in this Court the applicant relied on the grounds stated in a Written Case dated 24 March 2016. The applicant elaborated on these grounds in his oral submissions.

19 The grounds in the Written Case are stated under two broad headings. The first heading states that the appeal has a real prospect of success. For this purpose three grounds were set out, which in summary state:

1. Ground 1 - the summary judgment application was heard on 2 December 2015 when no valid order had been made adjourning the summons to that day. Hence, Ierodiaconou AsJ had no authority to hear the matter; in consequence her decision was invalid. In his oral submissions the applicant said that the absence of authority extended to the appeal to Zammit J.

20 Under this ground the applicant added a point concerning the validity of the summary judgment summons. He submitted that, contrary to r 22.18(4) of the Rules, the summons had been short-served and that it was thus invalid.

1. Ground 2 - Zammit J failed to rule on the issues of non-compliance with ss 7 and 12 of the CPA. This ground relates to grounds 1, 2, part of ground 8, and 10 in the originating motion.
2. Ground 3 - Zammit J wrongly determined that the judicial review 'is against a police officer and that decision is from the Magistrate'.

21 The second broad heading states that Zammit J misstated the law and that her decision must be reversed in order to avoid a substantial injustice to the applicant. In particular, it is stated that Zammit J failed to consider the prejudice and damages caused by the police by reason of injury, false arrest, malicious prosecution, trespassing, homelessness, loss of wages and death threats that constitute violations of human rights. In other documents in the Application Books the applicant has claimed damages amounting to $4,806,000. This claim can immediately be put aside: the originating motion itself does not claim damages. All that is claimed is the setting aside of the charges. But, even more fundamentally, damages are not recoverable in a proceeding for judicial review. A different form of proceeding would be required. And, in so far as the claim would be based on the breach of rights under the Charter of Human Rights and Responsibilities Act 2006 (Vic), the Charter does not allow for the award of damages.[7] For this reason the case of R (on the application of Greenfield) v Secretary of State for the Home Department[8] does not assist the applicant.

22 The question then is whether any of the first three grounds has a real prospect of success.

23 The applicant's submissions under this ground are summarised above.

24 The points as to short-service of the summons and the absence of an order are not mentioned in the short reasons of Ierodiaconou AsJ. Nevertheless, the transcript of argument before Zammit J reveals that the applicant mentioned both points before her Honour.

(a) there was no evidence as to whether the summons had been served within time, and as to what notice, if any, was given to the applicant in relation to the adjournment to 2 December;[9]

(b) there was no evidence as to why the applicant did not attend the hearing on 2 December;[10]

(c) there was no evidence that the applicant was not aware of the hearing on 2 December or of any reason why he could not attend.[11]

Her Honour stated that the applicant's argument was that he had not consented to the adjournment to that day.[12] She observed, finally, that there was no evidence the applicant was denied procedural fairness.[13]

26 This Court has the advantage of evidence as to the course of events leading up to the hearing on 2 December. It is contained in an affidavit sworn on 3 May 2016, by Adrian Mark Castle, a Principal Solicitor in the Appeals Directorate of the Office of Public Prosecutions, who had the conduct of the matter for the respondent. The affidavit was filed in response to an application by the applicant for an order directing the Registrar to accept for filing documents prepared by the applicant as his application for leave to appeal. The affidavit was included in the Application Book and was referred to in argument. The following is revealed.

27 On 25 October 2015 the applicant sent an email to Mr Castle and Ierodiaconou AsJ's associate in which he referred to r 22.18(4), noted the short-service of the summons and advised that for that reason he would not appear on 5 November 2015.

28 On 26 October 2015 Mr Castle responded stating by email; he acknowledged short-service by one day and advised the applicant that he could raise the point with the Court on 5 November and could apply for an adjournment on or before that day.

29 Later that day the applicant responded stating that he would neither apply for an adjournment nor attend the hearing; the summons was 'Null and invalid'.

30 On 28 October 2015 the associate by email advised the applicant and Mr Castle that her Honour could not hear the application on 5 November and that therefore he had 'administratively adjourned the summons to be heard at 10.30 am on 2 December 2015'. He further advised that the return date of 5 November had been vacated and that no appearance was necessary.

31 In an email response on the same day, the applicant advised the associate (with a copy to Mr Castle) that the associate had no power to adjourn an invalid summons, that he (the applicant) would not attend the hearing and every decision would be unlawful.

32 True to his word, on 2 December the applicant did not appear before Ierodiaconou AsJ on the hearing of the summons. Mr Castle appeared for the respondent. The summons was heard and the order of dismissal made.

33 It is true, as the applicant submits, that the summons was short-served. Rule 22.18(4) required that the summons be served not less than 14 days before the date on which it was returnable. The summons was served by email and express post on 23 October with a return date of 5 November, which meant it was served one day less than the stipulated period.

34 Short-service of the summons constituted an irregularity in compliance with the rule. The irregularity could have been cured by consent, adjournment or dispensation by the Court. As mentioned, the applicant refused to consent and, knowing of the adjournment, declined to attend the hearing. In the time that elapsed until the hearing he had ample time in which to have prepared his case.

35 Then there is the applicant's submission that the 2 December order was invalid - in the sense of a nullity - because no order had been made adjourning the hearing to that day. To be precise as to the Rules, r 46.06(2) authorised the associate to the associate judge to adjourn the hearing of the application but only with consent. He did not have consent. Thus, the condition for exercise of the power was not satisfied. Of course, at any time prior to and at the hearing Ierodiaconou AsJ could have corrected the irregularity by an order.

36 The applicant submits that the consequences of these non-compliances with the Rules is that each of the summons and the order was a nullity. This is not so. Rule 2.01(1) provides that a failure to comply with the Rules 'is an irregularity and does not render a proceeding or any step taken ... or any judgment or order in the proceeding a nullity'.

37 Rule 2.01(2) provides that subject to r 2.03, where there has been a failure to comply with the Rules, the Court may set aside any step taken or order in the proceeding. But r 2.03 provides that the Court shall not order such a setting aside on the application of any party 'unless the application is made within a reasonable time and before the applicant has taken any fresh step after becoming aware of the irregularity.' Hence, unless set aside the irregularly served summons and the irregularly ordered adjournment stand.

38 The applicant has not applied to set aside the order of Ierodiaconou AsJ on account of the irregularity pertaining to the order (or absence of order) for adjournment or the short-service of the summons. Such an application would be made in the Trial Division. It would, however, be idle to suggest, let alone require, at this time that such a formal application be instituted. It is preferable to treat the submissions as constituting such an application.

39 However, the present appeal is brought not from the order of Ierodiaconou AsJ, but from the order of Zammit J. That is, the applicant opted to appeal. That was a 'fresh step after becoming aware of the irregularity'. Having had the appeal - which was by rehearing - the present submission seeks to go back to and rely on the prior events. We did not hear argument as to the consequence, if any, of the effect of proceeding in this way.

40 Regarding the events which have occurred: the summons was served only one day short, the period of the adjournment allowed the applicant ample time in which to prepare his case, and he knew when the case was to be heard but decided not to attend. He was not denied procedural fairness; he simply chose not to attend. The short-service in itself occasioned no prejudice to the applicant, and nor did the lack of an order for adjournment. Treating the applicant as applying to set aside the summons and the order of 2 December, regarding the facts and circumstances overall, the application should be refused. The irregularities not having been set aside, they stand and, thus standing, the applicant's submissions have no substance.

41 There are further reasons why ground 1 must fail. They are, in essence, based on the futility of setting aside the summons or the irregular order, the irregularities concerning which are matters of practice and procedure. If the summons were to be set aside, the respondent could issue another summons for summary judgment, and the process would begin again. If the respective decisions of Ierodiaconou AsJ and Zammit J were set aside by reason of the irregular order, the summons (assuming it is not set aside) would be re-fixed for hearing. The final aspect of futility is that, for the further reasons following, the originating motion has no real prospect of success.

42 It is convenient to commence discussion of this ground with the applicant's submission based on s 7 of the CPA.

43 Section 7(1) provides that a proceeding for a summary offence must be commenced within 12 months after the date on which the offence is alleged to have been committed. The charges in the present case were each for a summary offence.

44 Section 6(1)(a) of the CPA provides that a criminal proceeding is commenced by filing a charge-sheet containing a charge with a registrar of the Magistrates' Court.

45 The applicant submitted that the proceeding 'commenced' on 15 October 2014 when the Magistrate commenced to hear the charges. That was more than 12 months after 18 September 2013 when the offences were alleged to have occurred. Thus, the applicant submitted, the charges were invalid. This submission reads the word 'commenced' in s 7(1) as referring to the date on which the actual hearing of the charges was commenced.

46 It is to be noted that the applicant did not make this submission to the Magistrate. The applicant did not submit to the Magistrate that for the present or any other reason the Magistrate lacked jurisdiction to hear the charges.

47 The applicant noted that in her reasons Zammit J did not refer to s 7, or set out his argument. That is true, but to be fair her Honour referred to Mr Castle's affidavit and said that there was no evidence that the charges and summons were filed out of time.[14]

48 The applicant's reading of s 7(1) is plainly wrong. The time of commencement is that provided for in s 6(1)(a).

49 Evidence of a charge-sheet in the present case is contained in an affidavit sworn on 17 September 2015 by Adam Casselton, a Sergeant of Police, who appeared as prosecutor on the hearing of the charges against the applicant. The affidavit deposed to the relevant history of the proceedings and as to which he exhibited relevant documents. He also exhibited the transcript and the exhibits tendered by the prosecution.

50 The documents produced by Mr Casselton commence with execution copies of charges 1 and 2 which, he deposed, were issued on 20 November 2013 in the form of a charge and summons at the Sunshine Magistrates' Court. These documents include the charge-sheet (containing one charge) referred to in s 6(1)(a). The reference to the charges being issued is a reference to the procedure which follows the filing of a charge-sheet under s 6(1)(a). On that occurring, s 12 of the CPA provides, in summary, for a registrar of the Magistrates' Court to issue a summons to answer to the charge; s 12 is referred to more particularly below.

51 Mr Casselton's affidavit makes it apparent that the Registrar of the Sunshine Magistrates' Court issued summonses relating to charges 1 and 2, and that that occurred on 20 November 2013, well within the period of 12 months stipulated in s 7(1).

52 It was thus that the proceeding was commenced. When charge 3 was filed it was added to the proceeding. The evidence indicates that it was filed on 3 February 2014, also within the 12 month period.

53 For these reasons, the applicant's submission, based on a misreading of s 7(1), that the proceeding commenced at the time when the hearing commenced, and was thus 'out of time', has no substance. The charges were commenced in time and were thus valid. This means that grounds 2 and 10 in the originating motion must fail.

54 The applicant then presented a further submission directed to the grounds that contend that the charges were invalid by reason of their not having been filed as required by the CPA. The applicant did not make this submission before the Magistrate.

55 For the purpose of the submission, the applicant referred to the evidence in Mr Casselton's affidavit as to the events relating to the filing and service of the charges. He submitted that the charges had not been filed as required by the CPA and that, accordingly, there was no valid proceeding before the Magistrates' Court.

56 In the originating motion it is stated in the grounds relating to this submission that the charges were not filed as required by s 14 of the CPA. However, s 14 is not relevant. That is because in the present case the summonses were issued by the Registrar under s 12 of the CPA. This is apparent on a proper understanding of the evidence in Mr Casselton's affidavit.

57 Put bluntly, the applicant submitted that the evidence did not establish that charges 1 and 2, or charge 3, had been filed as required by the CPA. It is to be noted that the Magistrates' Court file has not been produced.

58 Arguing off Mr Casselton's evidence the applicant asserted that the 'Received 2/12/2013' stamp on the 'Charge-Sheet and Summons' pertaining to charges 1 and 2 was not the Registrar's stamp. He asserted that he had been told this by a court officer. He said that the stamp and date were false as indicating filing on the document. He said that there was nothing on charges 2 and 3 that stated when they were filed. As to charge 3, that bore no date of filing. Further as to charge 3, which Mr Casselton's affidavit showed was accepted by solicitors acting on the applicant's behalf by way of service, he said that the solicitors did not act for him. Hence, he submitted, the evidence was not sufficient to prove that charge 3 was served on him.

59 Later, in reply, the applicant referred to r 10 in the Magistrates' Court Criminal Procedure Rule 2009 (Magistrates' Rules) which provides that '[A]ny document filed with the Court shall be stamped by a registrar with the date and venue of the Court'. The applicant submitted that the charge-sheet and summons were not so stamped. This submission, as with the preceding submission, rests on the assumption that the documents produced by Mr Casselton are copies of the original charge-sheet and summons filed at the Magistrates' Court. That issue is dealt with below. But even if the submission were correct in that respect, it itself faces the further difficulty that r 8(1) of the Magistrates' Rules provides that non-compliance with a Rule does not invalidate a proceeding, unless the Court directs or orders otherwise. Rule 8(2) provides that:

If a rule has not been complied with, the Court may -

(a) waive the non-compliance; and

(b) set aside all or part of the proceeding; or

(c) make any other order it considers appropriate.

No application (or order) has been made under r 8(2).

60 Returning then to the alleged failure to file the charge-sheet and summons, in particular relating to charges 1 and 2, the applicant submitted that the documents produced by Mr Casselton were fakes or forgeries.

61 Zammit J considered the applicant's submission. She first noted that the applicant had asserted that the charges, in particular charges 1 and 2, had not been filed with the Magistrates' Court or had not been filed at all.[15] She then noted that the applicant appeared to be relying on the date of filing of the executed copy.[16] She noted that the charge and summons was issued by the Registrar of the Sunshine Magistrates' Court, and that s 12 of the CPA dealt with the issue of such a summons. The applicant appeared to rely on s 14 which was not applicable. Zammit J rejected the submission.

62 With respect, Zammit J was correct in so concluding. Some elaboration is necessary.

63 As mentioned, s 12, and not s 14, is the applicable section. Section 12(1)(a) provides that on the filing of a charge-sheet under s 6, application may be made to a registrar of a Magistrates' Court for the issue of a summons to answer to the charge directed to the accused. Sub-s (2) provides that the application is made by the informant or a person on behalf of the informant. Under sub-s (3) the application may be made by post. Sub-s (4)(a) provides that the registrar must, if satisfied that the charge discloses an offence known to law, issue a summons to answer the charge.

64 Once issued, a summons may then be served. Section 13(a) of the CPA provides that when served a summons must be accompanied by a copy of the charge-sheet. Proof of service is dealt with in s 399 of the CPA: an affidavit or declaration as to service must be filed in court and identify the document served and state the time and manner in which service was effected.

65 With this background it is apparent that the applicant's submission of fake, forged or otherwise invalid charges is without substance.

66 In regarding Mr Casselton's evidence, it is important to bear in mind that he has deposed to, and produced documents from, the police file. The file held in the Magistrates' Court is not in evidence. The flaw in the applicant's submission is that he was addressing the police file rather than the Magistrates' Court file which, of course, was the primary and complete evidence.

67 It is apparent that pursuant to s 6 the charge-sheet and summons for charges 1 and 2 was filed with the Magistrates' Court and that on 20 November 2013, pursuant to s 12, those charges were issued in the form of the charge-sheet and summons produced. The 'Received' stamp referred to earlier does not relate to the date of issue.

68 The next step is that the registrar, retaining the original charge-sheet and summons, provides several copies to the police for their purposes including for service. A copy of those documents was served on the applicant on 29 November 2013. An affidavit of such service was completed on the rear of another copy of the documents and filed with the Court on 2 December 2013. These are called the execution copies. Mr Casselton produced a copy of the execution copies. Contrary to the applicant's submission, they are not the original charge-sheet and summons that would be found on the file of the Magistrates' Court.

69 The evidence then shows that there were a series of mentions in the Magistrates' Court and that on 20 January 2014 Hartley's Lawyers advised the police that they were acting for the applicant.

70 Then comes charge 3, which the police determined to file on 27 January 2014. On the following day, Hartley's Lawyers advised they would accept service of the additional charge. On 3 February 2014 the respondent, as informant, signed charge 3; it was headed 'Continuation of Charges'. The original was sent to the Sunshine Magistrates' Court for filing and a copy was sent to Hartley's Lawyers by way of service.

71 In these circumstances, charge 3 was added to the proceeding already commenced by the earlier charge-sheet and summons.

72 Three further appearances in court followed culminating in the hearing in October 2014. At no time was it suggested to the Magistrate that he had no jurisdiction to hear the charges on account of a failure to file the charge-sheet and summons, or that charge 3 had never been served on the applicant.

73 For these reasons, the applicant's submissions must be rejected. The ground has no substance. This means in turn that grounds 1, 6 and part of ground 8 in the originating motion must fail.

74 This ground complains of a statement by Ierodiaconou AsJ in paragraph 10 of her reasons that the application for judicial review is made against a police officer although it concerns the Magistrates' Court decision. On the basis that the proceeding was wrongly constituted Ierodiaconou AsJ said that there was no real prospect of the originating motion succeeding on any ground concerning the decision of the Magistrates' Court. Her Honour treated that as sufficient basis on which to dismiss the proceeding.

75 In her reasons on appeal, Zammit J agreed that the Magistrates' Court should have been a defendant, but stated that the omission - being curable by amendment - was not a sufficient basis on which to summarily dismiss the proceeding. Thus, in dismissing the appeal, Zammit J did not rely on that ground.

77 For these reasons each ground relied on by the applicant fails. None has a reasonable prospect of success. It is also seen that no ground in the originating motion has substance. It was correct to dismiss the proceeding. Leave to appeal is refused.

[1] Djime v Kearnes (Human Rights) [2015] VCAT 941.

[2] Djime v Kearnes (No 2) (Human Rights) [2015] VCAT 2055.

[3] In documents filed subsequently the applicant added 'and Others' after Mr Le's name. In later documents, he further added the names of two police officers. In fact, however, no amendment has been made to add any person as a defendant.

[5] Djime v Le [2016] VSC 48 (Zammit J) ('Reasons').

[6] Supreme Court Act 1986 (Vic) s 14C.

[7] See Charter s 39(3).

[8] [2005] UKHL 14; [2005] 1 WLR 673; [2005] 2 All ER 240.