Kay v DPP

Supreme Court of Victoria|2003-07-16|Before: GILLARD J

JUDICIAL REVIEW - County Court - Application to quash orders - Imprisonment after breach of recognisance - No errors on face of record - No denial of natural justice.

This is the return of a summons in a proceeding instituted by originating motion in which the plaintiff seeks judicial review, pursuant to Order 56 of the Rules of Court, of orders made by His Honour Judge Campbell in the County Court on 4 April 2003. By reason of Rule 56.02(1), the proceeding must be commenced within 60 days after the date of the orders made by the judge. The plaintiff's application is out of time. He seeks an extension of time pursuant to Rule 56.02(3).

The plaintiff, Ian Albert Kay ("Mr Kay"), is presently incarcerated at the Fulham Correctional Centre. He has been convicted in the past of a number of criminal offences. From time to time, he asserts, he is at a disadvantage when involved in the legal system unrepresented. I interpolate to observe that Mr Kay is not unintelligent, has been involved, as he repeatedly asserted, in some 53 court appearances over the last 10 years, is a vexatious litigant, has sought and obtained legal advice from a number of lawyers over the years, and is not unfamiliar with courts or court procedures. He represented himself before the court in this proceeding. He is not overawed in court nor is he reticent in putting forward his views and submissions. Indeed on the contrary, he is forceful.

The first defendant, the Commonwealth Director of Public Prosecutions ("DPP") has laid charges against Mr Kay in the past, and it is the prosecution and finalisation of those charges which have led to the present proceeding.

The second defendant, the County Court of Victoria, is joined by reason of Rule 56.01(2)(d) of the Rules. Mr Kay should have served the court with copies of his initiating documents and supporting material. There is no evidence that he has done so. I decided in the circumstances to proceed with the hearing of the matter as it has been before the court on a number of occasions since instituted on the 13 June 2003. Secondly, there is urgency in that the period of imprisonment presently being served by Mr Kay expires in August. Further I anticipated, in accordance with the usual practice, that the court would not have appeared at the hearing and would abide the result. I directed the solicitor appearing for the DPP to inform the court of the hearing and to forward to the court copies of the originating motion, summons and affidavits filed in the proceeding. On Thursday 10 July, this court was informed by the County Court that the court had been served with the documents. The court was informed that the County Court did not wish to be heard.

It is necessary to go back to 1999. On 18 May 1999 Mr Kay appeared as a defendant before the Melbourne Magistrates' Court in answer to seven charges of using the postal service in an offensive manner. He was represented at the hearing. He pleaded not guilty. The charges were found proven, he was convicted and sentenced to a term of imprisonment of four months on each charge, to be served concurrently. He lodged an appeal and was granted bail. On 22 July 1999 his appeal came on for hearing before His Honour Judge Campbell in the County Court of Victoria. He was represented by counsel. He abandoned his appeal against conviction. The appeal against sentence was allowed and he was re-sentenced to a term of four months' imprisonment to be released forthwith upon giving security by recognisance of $1,000 to be of good behaviour for 18 months pursuant to s. 20(1)(b) of the Crimes Act 1914 (Cth). On that occasion Mr Kay gave a sworn undertaking to the court that he would not write or send material of the kind over which he had been convicted.

On 19 January 2000 he was charged with seven further offences of using the postal service in an offensive manner. One of the charges was withdrawn. On 7 August 2000 he was charged with two offences of unlawfully using the telephone service and seven additional charges of using the postal service in an offensive manner.

The matters were heard in the Melbourne Magistrates' Court in March 2002. He pleaded not guilty to all charges. Some charges were withdrawn. The remaining charges were found proven. On 28 June 2002 he was sentenced. On the charge of behaving in an offensive manner he was fined $100. On the charge of using the telephone service in an offensive manner he was placed on a recognisance pursuant to s. 20(1)(a) of the Crimes Act in the sum of $250 to be of good behaviour for 18 months with a number of special conditions including undertaking treatment as directed by Dr Barry Walsh from time to time. In respect of using the postal service in an offensive manner, he was convicted and placed on a recognisance in the sum of $750 to be of good behaviour for 18 months with the same special conditions. He lodged an appeal against the convictions and sentence and on 28 October 2002 he abandoned his appeal.

Proceedings were instituted against Mr Kay for breach of the recognisance granted by his Honour Judge Campbell, and on 17 December 2002 he appeared represented before his Honour. The matter was adjourned to 4 March 2003. On 4 March 2003 Mr Kay who was represented by counsel instructed by Victoria Legal Aid, made application for an adjournment because he had a matter before the Court of Appeal. His Honour heard evidence of the breach. He held that the breach had been established but adjourned the further hearing until 18 March 2003.

On 14 March 2003 Mr Kay issued a proceeding in the Supreme Court against Judge Campbell seeking a review of the decision that he was in breach of his suspended sentence. Harper J dismissed his application.

On 18 March 2003 the breach proceeding again came on before his Honour Judge Campbell. Mr Kay appeared unrepresented and a representative of Legal Aid informed the court that legal assistance had been withdrawn. His Honour adjourned the matter until 4 April 2003.

On 4 April 2003 His Honour heard the continuation of the breach proceeding. Mr Kay was unrepresented. His Honour, having heard submissions from Mr Kay and counsel for the DPP, ordered pursuant to s. 20(A)(5) of the Crimes Act that the sentencing order made on 22 July 1999 be revoked and that Mr Kay be imprisoned for that part of each sentence of imprisonment fixed under s. 20(1)(b) which he had not served. Mr Kay was required to undergo four months' imprisonment. His Honour ordered that the sentence commence immediately.

On 16 April 2003 Mr Kay applied for bail in the Supreme Court, and Smith J refused his application.

Mr Kay seeks an order in the nature of certiorari to quash the ruling and orders made by his Honour in the County Court. Mr Kay has failed to comply with Rule 56.01(5) of the Rules. This paragraph requires him to produce a copy of the order or explain its non-production. He has done neither. This is usually fatal to the grounding of any relief.

The originating motion sets out the following grounds-

"That the second defendant made the following errors of law on the face of the record:

(a) error in that sentences were imposed in relation to imprisonment was (sic) manifestly excessive in all the circumstances;

(b) error in that the learned sentencing judge failed to have due regard to relevant considerations in relation to the substantive offences and in particular findings of the magistrate as regarding the offences which constituted the breach of the suspended sentence;

(c) error in that the learned sentencing judge failed to have due regard to the period which the plaintiff spent on bail in relation to the Magistrates' Court matters and in particular the restrictions of these bail conditions;

(d) error in that the learned sentencing judge failed to give proper consideration to the alternatives available to the court in relation to the breach of the suspended sentence and the large body of law relating to these options."

On the morning of the hearing, the Morwell office of Victoria Legal Aid forwarded to the court and the DPP what was described as an additional outline of plaintiff's argument. The complaint was that there had been a failure to accord Mr Kay natural justice. It was asserted in the document that he was unrepresented at the hearing and not conversant with the relevant sections of the Crimes Act. The options under the Crimes Act were not explained to him and hence he was not given the opportunity to make submissions as to any alternative option to imprisonment. It was said that the learned judge was in error and failed to accord natural justice to him by failing to ensure that he understood the legislation. It was further asserted that the learned judge failed to adjourn the proceeding to allow Mr Kay to obtain a report from Dr Walsh.

Under Rule 56.02(3), the court is obliged not to extend time "except in special circumstances". Without going into detail as to what Mr Kay was doing between 4 April 2003 until the date of his originating motion namely 13 June 2003, during that time he was pursuing a number of avenues of appeal in relation to a number of matters, without legal assistance, and did believe that he could appeal the orders made by His Honour to the Court of Appeal. It was not until 12 June 2003, after consulting the Morwell office of Legal Aid, that he realised that his only avenue to contest the orders was by way of judicial review. Mr Dickie, acting on behalf of the DPP, did not oppose an extension of time. In the circumstances the court indicated to Mr Kay that it was prepared to extend time to the date of issue of the originating motion.

Mr Kay seeks an order in the nature of certiorari quashing the orders made in the County Court. This court has jurisdiction to grant prerogative writ-type orders in respect of County Court proceedings and orders. See The King v Foster ex parte Isaacs[1] and R v Judge Dutton Briant ex parte Abbey National Building Society.[2]

The common law jurisdiction of this court to review decisions and orders of inferior courts is subject to the procedure set out in Order 56 of the Rules of Court.

The jurisdiction of the court to review decisions and orders of inferior courts and tribunals is limited.

The jurisdiction is supervisory and does not entitle this court to canvass matters that it would on an appeal. In a judicial review, the court is exercising its common law jurisdiction. The jurisdiction is different to an appeal. An appeal is the creature of statute. See Fox v Perry.[3]

21 The judicial review procedure is concerned with jurisdiction and the legality of what was done by the court or tribunal, and is not concerned with the merits of the decision under review. This is to be contrasted with an appeal, where the question usually is whether the decision is right or wrong, whereas the question on a judicial review is whether the decision is made within jurisdiction and in accordance with the law.

Judicial review is not concerned with whether the decision was fair or correct.

Order 56 is concerned with procedure. It abolishes the remedies in the nature of the old prerogative writs but nevertheless preserves the jurisdiction of the court to make prerogative writ-type orders. It is clear that the Rules do not affect the common law jurisdiction of the court, and it is equally clear that this court has jurisdiction to make an order in the form similar to the old prerogative writ of certiorari, namely, quashing the decision under review.

The scope of the jurisdiction was recently discussed by the High Court in Craig v South Australia.[4] In a joint judgment the court 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 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 an 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, or 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." (Emphases added).

In Chief Constable of North Wales Police v Evans,[5] Lord Brightman, at p.1173, said -

"Judicial review is concerned, not with the decision, but with the decision-making process. Unless that restriction on the power of the court is observed, the court will in my view, under the guise of preventing the abuse of power, be itself guilty of usurping power."

In R v District Court; ex parte White,[6] Windeyer J said at p.655 -

"We do not sit in this court to weigh the evidence and decide whether or not the applicant should be exempt from military service. That decision has been committed by Parliament to a magistrate, with an appeal to a court of review constituted by a District Court or Supreme Court Judge. The court of review has given its decision. Parliament has said that its decision is `final and conclusive'. It is not for us to say whether it was right or wrong. Nevertheless the applicant seeking to bring the case before us, alleging an error of law which it is claimed entitles him to an order either for certiorari or prohibition ... I am not disposed to a narrow view of the scope of either certiorari or prohibition or of the power of this court to use these writs and also mandamus to ensure that administrative tribunals exercising functions under Commonwealth law proceed according to law and keep within the law. But we must not use these writs to give an appeal on the facts." (Emphasis added).

In my opinion, the words of Sir Victor Windeyer are apposite to the present case. Mr Kay has no right of appeal against the orders made. The only avenue open to him is to establish that the learned County Court Judge made an error in jurisdiction or a legal error in the decision-making process, or that there is some other recognised ground justifying the exercise of the supervisory jurisdiction of this court. This court is only concerned with the legal correctness of what the learned judge did.

The High Court in Craig's case, supra, at p.176, identified the most important established grounds, namely, jurisdictional error, failing to observe some applicable requirement of procedural fairness, fraud and error of law on the face of the record.

This court is not concerned with examining whether in fact the judge made the right decision or whether he misapplied some principle of law, but is concerned with ensuring that he acted within jurisdiction and that in performing his decision-making process, he complied with the law.

The limited nature of the jurisdiction was stated by the High Court in Craig's case, supra, at p.176 et seq, where the court drew a distinction between tribunals and inferior courts. See particularly pp.177-9. After giving examples of jurisdictional error by a tribunal, the court said at pp.179-80 -

"In contrast, the ordinary jurisdiction of a court of law encompasses authority to decide questions of law as well as questions of fact, involved in matters which it has jurisdiction to determine. The identification of relevant issues, the formulation of relevant questions and the determination of what is and what is not relevant evidence are all routine steps in the discharge of that ordinary jurisdiction. Demonstrable mistake in the identification of such issues or the formulation of such questions will commonly involve error of law which may, if an appeal is available, and is pursued, be corrected by an appellate court and, depending on the circumstances, found an order setting aside the order or decision of the inferior court. Such a mistake on the part of an inferior court entrusted with authority to identify, formulate and determine such issues and questions will not, however, ordinarily constitute jurisdictional error. Similarly a failure by an inferior court to take into account some matter which it was, as a matter of law, required to take into account in determining a question within jurisdiction or reliance by such a court upon some irrelevant matter upon which it was, as a matter of law, not entitled to rely on determining such a question will not ordinarily involve jurisdictional error." (Emphases added).

It is to be observed that the High Court was guarded in stating the principles as general propositions. However, the observations are indeed compelling in a motion such as the present. The basis for the supervisory jurisdiction is that inferior courts must, in exercising their decision-making process, act within jurisdiction and in accordance with the law and principles of procedural fairness. But the supervisory jurisdiction is more limited in respect to inferior courts compared with administrative tribunals.

Sometimes there is controversy about what constitutes the record in cases where certiorari is sought to quash an order on the ground of error on the face of the record. The Rules do require, as did the common law, the production of the record.

The general rule of what constitutes the record of an inferior court is the initiating document, pleadings, if any, and the record of the court evidencing the outcome.

By reason of s.10 of the Administrative Law Act 1974, the reasons for the decision form part of the record. See Thompson v Judge Byrne[7] and RSL v Liquor Licensing Commission.[8] In addition, the record may be expanded to include the transcript of the proceeding if in fact it is incorporated into the record by reference. See Craig's case, supra at pp.181-2. There is no suggestion in the present proceeding that the transcript has been incorporated.

If an attack is made on the basis that there is an error of law on the face of the record, this court is in fact restricted to that record, and a decision will only be quashed if it is affected by an error of law which is disclosed by that record. Where the attack is made on grounds other than an error on the face of the record, then the court can take into account any relevant material placed before it, subject of course to the rules of procedure and evidence. See R v Northumberland Compensation Appeal Tribunal ex parte Shaw per Denning LJ_._[9] As his Lordship pointed out at p.353, the parties can, by agreement, expand the record.

As the principles stated by the High Court clearly demonstrate, where the allegation is that there has been jurisdictional error by the inferior court, in a case where the court does in fact have jurisdiction and was exercising it, it is an extremely difficult task to establish that there was any jurisdictional error even though it is shown that an error occurred in the course of the proceeding. Of course, the situation is different where an error of law is demonstrated on the face of the record.

Ordinarily, an inferior court has jurisdiction to decide questions of law as well as questions of fact and if it makes an error in the course of exercising the jurisdiction, it has made an error in matters which it had jurisdiction to determine. It is only where it makes an error with respect to jurisdiction that the court can intervene.

The narrowness of this jurisdiction is exemplified by what the High Court said in Coal and Allied Operations v AIRC.[10] Gleeson CJ, Gaudron and Hayne JJ said in relation to jurisdictional error -

"There would only have been jurisdictional error on the part of the Full Bench if it had misconceived its role or if, in terms used by Jordan CJ in ex parte Hebburn Ltd; re Kearsley Shire Council, it `misunderstood the nature of its jurisdiction ... or misconceived its duty or failed to apply itself to the question which the act proscribes ... or misunderstood the nature of the opinion which it was to form."

I also refer to the observations made by Phillips JA in RSL v Liquor Licensing Commission.[11]

The judge's reasons are set out in the transcript of the hearing on 4 April 2003 from pages 20 to 23. They form part of the record. Mr Kay contends that they disclose errors of law on the face of them. The reasons are -

His Honour: On 22 July 1999 Mr Kay came before me on an appeal in respect of his conviction and sentence to gaol by the Magistrates' Court at Melbourne on 18 May 1999. Before the matter came before me on 22 July of that year, it had already been before Judge Curtain and for one reason or another the matter --- Appellant: I sacked her. His Honour: --- ended up coming before me. On that day the appellant abandoned his appeal against conviction and represented by counsel proceeded with an appeal against that sentence. On that day I allowed the appeal against sentence, and in effect reimposed the same orders as had the magistrate save that I suspended the operation of that sentence for a period, or sentences for a period of 18 months. I did so because Mr Kay - or I did so partly because Mr Kay gave me an undertaking on oath from the witness box that he would be of good behaviour in the meantime, that he knew what it meant to give such an undertaking, and that he knew the consequences of it. See the transcript of the proceedings before me on that day at pp. 34-36 inclusive. On that day also Mr Kay in part of his undertaking intimated to me that the campaign which he prosecutes with such avidity and passion would be conducted in a legal manner. I am sad to say that he was not able to keep that undertaking and was subsequently convicted before a magistrate in respect of offences which by their timing and their nature constitute in my view serious breaches of the undertaking which he gave me. Undeterred by any of that, I might say, or indeed the undertakings he gave me, he has continued notwithstanding requests to desist to bombard the courts with material that he puts forward as part of his campaigns for the rights of fathers. It is of significance in my view that there has been a procedural course adopted apparently by Mr Kay, which is becoming all too repetitive. At one point --- Appellant: The abuse of my children is (indistinct). His Honour: At one point he sought leave to appeal against a decision in effect brought about by himself of Judge Sexton, and the refusal of Justice Balmford to interfere or indeed importantly Judge Sexton's decision in the case not to allow him to further adjourn the matter on the terms that he wishes to impose upon courts, that application for leave to appeal out of time was dismissed by the Court of Appeal I think on 28 or 29 March. More recently the informant in this matter, and the court has been served with another set of similar papers following a similar course apparently taken by Mr Kay --- Appellant: There's nothing offensive in my (indistinct). His Honour: --- to prevent me from continuing with the part-heard hearing that had commenced a little earlier. I make reference to these matters only as I say by way of history, and they do not play any part in the decision that I have to make. As I say, I regard these offences, no matter what Mr Kay says, having been acquainted with the terms of them, and in the light of the undertaking which he gave me, as serious offences. Yet again he makes promises to reform --- Appellant: I'm trying to reform a system (indistinct). His Honour: --- and he is being steadfast in his assertions on each occasion that I have heard him that he is the subject of corruption by lawyers, the courts, the system, and no doubt others. That is a sad state of affairs. In my view --- Appellant: (Indistinct response) for 10 years. For 10 years that's against this greater constitution and the United Nations (indistinct). His Honour: In my view, as I said, the breach of that suspended sentence is found proven. I have had pointed out to me the various alternatives open pursuant to s. 20A(5C) of the Commonwealth Crimes Act, as I am not persuaded that as affording Mr Kay further time to mend his ways and being unpersuaded that he ever will whilst his campaign does not meet his satisfaction in terms of its outcomes, I have no alternative but to revoke the order and send you to serve the term of imprisonment fixed that you have not served thus far, which is four months. I direct that that sentence commence today. Appellant: You're as corrupt as the rest of them (indistinct). Mr Bruckard: If Your Honour pleases. His Honour: Are there any other orders I need make? Mr Bruckard: No, Your Honour. His Honour: Remove Mr Kay please. Appellant: You're as corrupt as the rest of them. I haven't seen my kids for 10 years. You're as corrupt as the rest of them. This has been planned from day one, hasn't it? (Indistinct).

The learned judge incorporated pages 34-36 inclusive of the transcript of the proceedings before him on 22 July 1999. However the pages were not produced before me.

Ground (a) asserts that the learned judge was in error in relation to the imprisonment because the imprisonment was manifestly excessive in all the circumstances. There is nothing on the face of the record which establishes this. What Mr Kay appears to be doing, is seeking to contest the judge's finding. That is not open on a review. This ground is in any event misconceived. At the hearing on 4 April 2003, the learned judge did not fix the period of imprisonment. He fixed that period of imprisonment on 22 July 1999. Having fixed the sentence, he released Mr Kay pursuant to the power given in s. 20(1) (b) of the Crimes Act. At the April hearing, having found that Mr Kay had breached a condition of his release the judge then considered the range of penalties set out in s. 20A(5) (c). One of these penalties was the revocation of the release order which if revoked required the judge to order Mr Kay to be imprisoned for that part of each sentence of imprisonment which had been earlier fixed which he had not served at the time of his release. That much is clear from s. 20A (5) (c) (i). The learned judge decided that that was the appropriate penalty and once having made that decision it followed that he was bound to order Mr Kay to undergo the original sentence.

There was no error of law on the face of the record that the imprisonment was manifestly excessive.

The second ground asserts that the learned judge failed to have due regard to relevant considerations regarding the substantive offences and the finding made by the magistrate regarding the offences which constitute the breach. This ground appears to make two complaints. The second complaint appears to be that the Magistrate did not sentence him to a term of imprisonment on his more recent infringements of the postal service and telephone system, and released him on a recognisance with special conditions, one of which was treatment by Dr Walsh. In effect he is saying that what the Magistrate imposed showed the level of criminality of those offences and that the course taken by the Magistrate was relevant to Judge Campbell's sentencing exercise.

The first part of the ground is misconceived. As I have already explained in relation to ground 1, once the learned judge decided that s. 20(A) (5) (c) (i) applied, he was duty-bound to order Mr Kay to be imprisoned for the same period.

With respect to the second part of the ground, there is no error of law demonstrated on the face of the record in respect to it.

Indeed, on the face of the record, his Honour did refer to the proceedings before the magistrate and was of the view that the charges did constitute serious breaches of the undertaking.

The third alleged error is that the learned judge failed to have due regard to the period which Mr Kay spent on bail in relation to the Magistrates' Court matters. The complaint here appears to be that Mr Kay had behaved himself by complying with the bail conditions over a fairly lengthy period of time. That may be so, but there is nothing on the face of the record to suggest that the learned judge erred in his sentencing exercise by not considering the matter, even assuming it was raised or was relevant. The error, if there be one, must appear on the face of the record. The record clearly shows that the judge decided there was a breach, considered the penalties enumerated in s 20 A(5) and decided to apply paragraph (c) (i). There is no error of law disclosed on the face of the record.

The fourth alleged error was that the learned judge failed to give proper consideration to the alternatives. The alternatives are set out in s. 20(A)5(c). On the face of the record it is clear that the learned judge did consider these matters. No error has been established.

Finally I come to the allegation that Mr Kay was denied natural justice. His complaint in a nutshell is that he is an inexperienced person without legal representation and accordingly it is incumbent upon a court to apprise him of all relevant matters. The evidence of this alleged denial is found in the transcript. Before turning to that, I repeat that he appeared before Judge Campbell on two prior occasions in relation to the breach proceeding. He did at some point have legal representation. This was withdrawn by Legal Aid. He is not a babe in the woods when it comes to appearing in court. He would have known precisely what he was facing in this proceeding. As His Honour said, Mr Kay gave an undertaking on oath at the hearing in 1999. He promised that he would not prosecute his campaign outside the law. He in fact abided by that undertaking for some months and then breached it. He has had legal assistance from time to time. I have no doubt at all that when he appeared before His Honour Judge Campbell on 4 April 2003 Mr Kay had a very good understanding of the nature of the proceeding, the options open to the judge, and the fact that the possible outcome may result in imprisonment. I have read the transcript and in my opinion the learned judge gave Mr Kay every opportunity to present his case before the court. I am satisfied that he was accorded natural justice. He was aware of the charges made against him, he was given every opportunity to put his submissions to the court and did so. The prosecutor outlined the various penalty options open to the court in the presence of Mr Kay, there was a discussion about imprisonment, the prosecutor submitted that His Honour should imprison Mr Kay and a discussion occurred involving Mr Kay in which he submitted he should not be sent to prison. This ground has no substance and fails, even assuming the ground was available to him at this late stage.

In my opinion, none of the grounds relied upon by Mr Kay have been made out and the proceeding must be dismissed. Subject to any submissions by the parties I propose to make the following orders -

(i) that the time fixed by Rule 56.02 for the institution of the proceeding be extended to and including 13 June 2003;

(ii) that the summons and the proceeding be dismissed;

(iii) that the plaintiff pay the first defendant's costs of the proceeding.

---

[3] [2003] HCA 22 at para 20.

At a glance

Court

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Judgment (72 paragraphs)

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Cases Cited (3)