DPP v Sabransky [2002] VSC 143

5. The questions of law stated by Master Wheeler on 20 March 2002 are as follows:

(c) held, if he did so, that he had no jurisdiction to hear;

the charges in case No. M00446393, after finding that the summons in that case had not been served in accordance with s.34 of the Magistrates' Court Act 1989.

1.2 Was the Magistrate in error when he declined to:

the hearing of charges in case No. M00446393 as requested by the Prosecutor, after the Magistrate found that the summons in that case had not been served in accordance with s.34 of the Magistrates' Court Act 1989."

18. The background to this appeal is somewhat convoluted and it is appropriate to set out in some detail what occurred prior to the order of the Magistrate, the subject of this appeal.

21. On 2 April 1998, the respondent was served with a summons to answer charges alleging that on 1 April 1998 she had driven a motor vehicle whilst having a blood alcohol content in excess of .05%, failed to give her name and address at the scene of an accident and driven carelessly, in breach of various provisions of the Road Safety Act 1986. Upon being filed in the Magistrates' Court at Melbourne this proceeding was numbered L01246112.

24. Subsequently, and it would appear after the informant became aware of certain defects in the summons to answer charges served on 2 April 1998, a further summons to answer charges making the same allegations as those in the summons the subject of proceeding L01246112 was issued on 1 March 1999. This summons was purported to have been served on the respondent by the informant by leaving it at an address in Heidelberg on 1 March 1999. Upon being filed in the Magistrates' Court this proceeding was numbered M00446393. The informant did not seek to withdraw the charges the subject of proceeding L01246112 prior to issuing the summons the subject of proceeding M00446393.

27. Finally, the proceedings in the Magistrates' Court came on for hearing before a Magistrate on 2 August 2000. On that occasion Mr Hardy of counsel who appears for the respondent on the appeal before me, appeared for the respondent and stated that he appeared "under protest". He submitted that proceeding numbered M0046393 was a nullity because it contained charges against the respondent arising out of the same set of facts as those alleged in proceeding L01246112. Mr Hardy submitted that proceeding M00446393 should be struck out as an abuse of process. Furthermore, he submitted that those proceedings had never been served upon the respondent.

30. The issue of whether or not there was an abuse of process by the commencement of two proceedings based upon the same factual circumstances was resolved by the Magistrate striking out the first set of proceedings numbered L01246112, after being requested to do so by the prosecutor.

33. The Magistrate then proceeded to hear proceeding M00446393. It will be recalled that Mr Hardy had appeared "under protest" because, he submitted, the summons had not been served upon his client. The issue of the service of the summons in proceeding M00446393 was the subject of evidence given by the informant, and by the mother of the respondent upon whom the charge had allegedly been served, and by the respondent herself during the course of the first day of the hearing before the Magistrate.

36. On the second day of the hearing the Magistrate handed down his ruling in relation to the issue of service. He concluded on the evidence before him that the summons in question had not been served upon the respondent. The appellant makes no complaint upon the appeal before me about this finding. Rather, it is what followed that forms the subject of this appeal.

39. Having decided that there was no service upon the respondent of the summons in proceeding M00445393 the Magistrate stated (at p.207 of the transcript) that he was "not prepared to proceed on the trial of the matter". He said (at p.208 of the transcript) " ... my view is that theyre (sic) struck out. The case clearly hasn't been heard on its merits."

42. The prosecutor then submitted that the proceedings should be adjourned as the proceedings before the Court had been properly filed and the defective service of the summons did not affect the validity of the charges.

45. The submission made by Mr Hardy before the magistrate was that he should dismiss the charges as the time for service had expired and as the summons had never been extended. In making this submission to the Magistrate he relied upon the course which had been followed by Hayne J (as he then was) in Nitz v Evans 19 MVR 55.

48. However, notwithstanding the submission of the prosecutor on the one hand that the proceedings should be adjourned, and the submission of Mr Hardy that the proceedings should be dismissed, the Magistrate ordered that the charges be struck out.

51. This appeal is brought pursuant to s.92(1) of the Magistrates' Court Act 1989 whereby a party to a criminal proceeding in the Magistrates' Court may appeal to the Supreme Court on a question of law, from a final order of the Magistrates' Court in that proceeding.

54. On 1 December 2000, Master Wheeler made orders in relation to the course of this appeal. The respondent did not appear at the hearing on that date, but on 8 February 2001 a summons was filed on her behalf. The summons sought (inter alia) a variation of the order made as to the question of law to be stated and a declaration that an affidavit of the informant, Alan Donald Mooney, which had been filed on 31 August 2000, be removed from the Court file and a declaration that paragraph 6 of the affidavit of Jeffrey Hayden Birrell which had also been filed on 31 August 2000 be struck out. Each application for such a declaration was based upon a submission that the affidavits in question contained irrelevant and inadmissible material and/or new evidence which was not before the Magistrate.

57. On 20 March 2001, and after hearing submissions on behalf of the respondent and the appellant, Master Wheeler varied the terms of the question of law to be stated to those referred to in paragraph 2 above. He reserved the question of striking out the affidavits or parts thereof of the informant and Jeffrey Hayden Birrell to the trial judge.

60. Upon the appeal coming before me, Mr Hardy stated that there were a number of preliminary submissions that he wished to make. The first such submission relates to the issue of striking out the affidavits or parts thereof of the informant and Jeffrey Hayden Birrell. The second such submission is that the order of the Master fails to articulate any proper question of law. Furthermore, Mr Hardy submits that the order made by the Magistrate was not a final order within the meaning of s.92 of the Magistrates' Court Act 1989 ("the Act"). As there was limited time available for the hearing of the appeal, counsel agreed that these preliminary issues would be determined by me at the same time as the appeal and furthermore, that each party, after the hearing, would file written submissions as to the issue of whether or not the order made by the magistrate was a "final order".

63. I turn now to consider the preliminary issues. The first issue is whether or not the whole or any part of the affidavits of Alan Donald Mooney and Jeffrey Hayden Birrell sworn the 30th and 31st days of August 2000 respectively should be admitted into evidence. It is apparent that both affidavits contain material that was not before the Magistrate. It is, in my view, clear that insofar as such affidavits relate to matters which were not the subject of the evidence given before the Magistrate and which were not otherwise before the Magistrate, they should not be admitted into evidence. Cook v Blackburn [1989] VicRp 4; (1989) VR 35 at p.37, Carter v Ried [1992] VicRp 22; (1992) 1 VR 351 at 363.

66. It follows that paragraph 3 of the affidavit of Alan John Mooney should be struck out. It appears to me that all other matters referred to in the affidavits in question were before the Magistrate by way of material upon the relevant files, oral evidence or submission or are alternatively relevant to procedural aspects of the appeal, such as the certified extracts of order of the Magistrates' Court.

69. It is convenient at this point to deal with the further preliminary issue raised by the respondent that the order made by the Magistrate was not a "final order" of the court in that proceeding. It is submitted by Mr Hardy that the plain meaning of s.92(1) of the Act is that only "final orders" may be the subject of appeal to the Supreme Court on a question of law.

72. Mr Hardy relies upon a number of decisions in support of his submission that the order of the magistrate striking out the proceeding in this case was not a final order and is thus not amenable to appeal pursuant to s.92 of the Act. In Bullmore and Anor v Zurich Australian Life Insurance Ltd (Unreported) 24 January 1991, Fullager J expressed the opinion that a magistrate who had refused to grant an adjournment did not make a final order in doing so. In referring to the term "final order" as used in s.109 of the Act (which section is the civil proceeding equivalent of s.92 of the Act), his Honour agreed with a submission made to him that the expression "final order" excluded interlocutory orders such as the grant or a refusal of an adjournment. His Honour considered it correct that a party aggrieved by an interlocutory order was left to rely upon O.56 of the Rules of the Supreme Court.

75. By supplementary submissions in writing dated 7 August 2001, Mr McArdle QC for the appellant, submits that it is necessary to consider the surrounding circumstances in order to determine whether or not the order made by the Magistrate striking out the proceedings was a final order. Whilst he concedes that it is necessary to look at the legal effect rather than the practical effect of such an order, he submits that the circumstances before the Magistrate were such that there is no distinction between the legal and practical effects. There can be little argument that from a practical viewpoint the order of the Magistrate was likely to be the end of the proceeding. There was no procedure available to the prosecution to resurrect or reinstate the matter Mr McArdle submits. Mr McArdle submits further that the legal effect is that the matter between the parties has been determined finally, in all the circumstances in favour of the respondent.

78. The practical consequence that the proceeding was at an end because of the order of the Magistrate striking out the proceeding comes about because of the provisions of s.33 of the Act which state as follows:

(1) A summons to answer to a charge must direct the defendant to attend at the proper venue on a certain date and at a certain time to answer the charge.

(2) On the application of the informant at any time before the service of a summons to answer a charge, the mention date specified in the summons may be extended without cause

(b) within one month after the mention date - by the appropriate Registrar on one occasion and thereafter may be extended

(d) within one month after the current mention date - by the appropriate Registrar if he or she is satisfied by evidence on oath or by affidavit that reasonable efforts have been made to serve the summons."

88. In addition to these requirements, s.34 of the Act provides that every summons to answer a charge must be served at least 14 days before the mention date. The mention date, of course, was well past by the time the proceeding came on for hearing before the Magistrate. The provisions of s.33 permit extension of the mention date only before the mention date or within one month of the extension date.

91. The procedural requirements of s.33 of the Act have been held to be mandatory. (See Sinclair v Brereton [1998] VSC 170.) It will be recalled that in the current case it fell upon the Magistrate to determine whether or not the summons had been served. He determined on the facts before him that it had not been served. By striking out the proceeding the Magistrate effectively ensured that the proceeding could not be reinstated, because the informant would never be able to comply with the requirements of s.33 of the Act as the date of the mention date was well prior to the time of the finding by the Magistrate that there had been no service. Thus it is submitted by Mr MrArdle that there was no remedy available to the informant. He submits that this is in contrast to the circumstances of Carr v Finance Corporation of Australia [1981] HCA 20; (1980-81) 147 CLR 246 at 248 where there was a remedy which although it may have been "doomed to failure" was nevertheless available.

94. Mr Hardy of Counsel, in written submissions in reply dated 17 August 2001, submits that the words "final order" clearly do not apply to an order "striking out" charges. He submits that such an order is an interlocutory order.

97. The words "final order" are not defined by the Act. However, numerous authorities have dealt with the issue of the distinction between a final and an interlocutory order.

100. In Kinex Exploration v Tasco Pty Ltd [1995] VicRp 58; [1995] 2 VR 318 at 320-321, Batt J concluded that the words "final order" as used in s.109 of the Act are the antonym of the words "interlocutory order". In reaching this conclusion his Honour referred to Licul v Corney [1976] HCA 6; (1976) 180 CLR 213 and to Carr v Finance Corporation of Australia Ltd (No. 1) [1981] HCA 20; (1981) 147 CLR 246. Batt J said (at p.321):

"The rationale of those decisions is that the test applicable in Australia for determining whether a judgment is final or not is 'whether the judgment or order appealed from, as made, finally determines the rights of the parties ... notwithstanding that in many cases in practice a second application would be 'doomed to failure' ... ".

"Notwithstanding that the right to make further application may be purely theoretical, the two most recent High Court cases I have mentioned make it clear that the test requires regard to be had to the legal rather than to the practical effect of the judgment."

108. The decision of Batt J in Kinex related to an appeal brought before him pursuant to s.109 of the Act in relation to an order made by a Magistrate dismissing an application for a re-hearing pursuant to s.110 of the Act. Batt J followed the decision of Beach J in Guss v Johnstone (unreported, 23 March 1994). Likewise, Beach J held that an application for a re-hearing under s.110 of the Act was not a final order. His Honour in the course of that case pointed out that the appellant, if he had any legitimate complaint about the refusal of the application for re-hearing, should have adopted the procedure prescribed by O.56 of the Supreme Court Rules.

111. Although the above authorities deal with circumstances of appeal to the Court from orders made in civil proceedings pursuant to s.109 of the Act, I am confident that there is no distinction between the meaning of the words "final order" as used in s.109 and s.92 of the Act. The same test has been applied in relation to s.92 in Halliday v Arnol (Appeal Division SCV, unreported, 6 May 1993) and in a further case of Halliday v Arnol (Appeal Division SCV, unreported, 30 March 1994). However, although the principles which apply in relation to what is a final order are clear, the distinction between what is a final and what is an interlocutory order is less certain. In Brereton v Sinclair [2000] VSCA 211 at paras 12-19, Chernov JA summarised a number of authorities and stated (at para 15):

"In my view the usually accepted test for determining whether an order is final or interlocutory, is whether it finally determines the rights of the parties in the principal cause between them having regard to the legal, rather than the practical, effect of the judgment or order."

"Thus, unless the order itself has the legal effect of finally disposing of the rights of the parties in the principal proceeding, ordinarily it will not be treated as final ... It usually follows that, if the aggrieved party can make a fresh application of the kind that has been dismissed or rejected by the order, the order in question will be treated as interlocutory notwithstanding that the possibility of the further application succeeding is so remote as to be fanciful."

119. Accordingly, the question is whether or not the order made by the Magistrate "striking out" the charges before him can be said in itself to have the legal effect of finally disposing of the rights of the parties.

122. Striking out orders of a different nature to the order under consideration have been held to be interlocutory. There is no doubt on the authorities that the striking out of a statement of claim or other pleading is interlocutory. Likewise, "it has been accepted that an order striking out or dismissing a proceeding on the ground that it is scandalous, vexatious or an abuse of process or because it discloses no reasonable cause of action, is interlocutory". (See Chernov JA, para 12, Brereton v Sinclair).

125. In R v McGowan and Anor [1984] VicRp 78; [1984] VR 1000 Kaye J gave consideration to the effect of an order made by a Magistrate striking out an information under the Magistrates' (Summary Proceedings) Act 1975. He held that a magistrate had inherent power to set aside an order striking out an information and to order its re-instatement.

128. The issue as to whether or not an order striking out charges brought in the criminal jurisdiction of the Magistrates' Court should be considered in the same way as the striking out of proceedings in the civil jurisdiction of the Court has caused me some concern. I can find no authority directly on the point apart from the decision of Kaye J in McGowan referred to above which relates to informations issued under the previous legislation. However, I have little doubt that an order striking out a civil proceeding would not be a final order as it does not dispose finally of the rights of the parties. There is ample authority to demonstrate that civil proceedings the subject of such an order are capable of being re-instated.

131. There is, of course, little doubt that the order striking out the charges against the respondent brought the proceedings before the Magistrate to an end from a practical point of view. This is because the steps required under ss.33 and 34 of the Act to have the matter proceed to hearing were no longer capable of being undertaken. Mr McArdle submits that in this sense the practical effect of the order made by the Magistrate is the same as the legal effect. He submits that, "The matter between the parties has been finally determined" in the respondent's favour. However, it appears to me that I am bound by authority to conclude that the order made by the Magistrate was not a final order and thus is not amenable to appeal pursuant to s.92 of the Act. I have come to this conclusion because notwithstanding the practical circumstances which were created by the order of the Magistrate, the order itself does not finally dispose of the rights of the parties in the principal proceedings. The Magistrates' Court did not determine the matter on its merits. No evidence was called before the Magistrates' Court as to the merits of the proceeding. The Court did not make any order dealing with the substantive issue leading either to conviction or to dismissal of the charges brought before it. In my view, it is theoretically open for an application to be made to re-instate the proceeding, futile though such an application is likely to be in the present circumstances.

134. The order, not having been a final order, the appropriate course if the applicant was aggrieved about any failure of the Magistrate to exercise his jurisdiction was to seek judicial review pursuant to Order 56 of the Rules of this Court. It follows that the appeal should be dismissed as incompetent.

137. I reserve the question of costs to a date to be fixed.