Kuek v Victoria Legal Aid [1999] VSC 447

(h) Error in finding that Victoria Legal Aid was not a corporation involved in trade or commerce.

63. As already stated in the course of argument counsel for the plaintiff did not address the application or construction of the Trade Practices Act. In any event, I consider that the magistrate made a finding of fact in light of the character of the operations of the first defendant, Victoria Legal Aid and accordingly I would not be disposed to interfere with such finding.

(i) Error in holding that ss.11 and 11A of the Fair Trading Act did not apply.

69. For the same reasons expressed previously with respect to the Trade Practices Act, the plaintiff through his counsel did not address any submissions or argument concerning the application of the Fair Trading Act. In any event, for the reasons previously stated the magistrate made findings of fact and which findings I would not be disposed to interfere with.

(j) Error concluding there was no evidence of any implied agreement.

75. Similarly, the error alleged involves consideration of the evidence and in view of the fact that relief is sought in the nature of certiorari it is necessary that an error on the record be shown. Consideration of the evidence would involve my going beyond the record of the Magistrates' Court below. In any event, it is not open to this court in proceedings in the nature of certiorari to consider errors that require the court to investigate and consider the evidence before the inferior court.

(k) Error in finding that Victoria Legal Aid had fully accounted to the plaintiff.

81. Such finding by the learned magistrate below constituted a finding of fact. The relief in the nature of certiorari does not entitle the plaintiff to a consideration and investigation of the evidence below.

(l) Error in concluding all grants of legal assistance had been fully satisfied.

87. For the reasons already expressed with respect to grounds (j), and (k) I consider that there is no error shown on the record and, further, it is not open to this court to consider matters beyond the record,

(m) Error in failing to take into account material facts.

93. For the reasons already expressed with respects to grounds (j), (k) and (l) there is no error shown such as to warrant relief in the nature of certiorari on the basis of this ground.

99. This ground so far as it can be understood appears to make an allegation of procedural unfairness and a denial of natural justice in the Magistrates' Court below. On the basis of the affidavit of the plaintiff and, in particular, his description of the proceedings below there is no evidence in my view to support a finding of denial of natural justice or procedural unfairness below.

(o) Error in not allowing the plaintiff to rely on previous affidavits during cross-examination.

105. Again this ground appears to be one relying upon procedural unfairness and denial of natural justice. In my view it was open to the magistrate below to conduct the proceedings as she considered appropriate and in particular, to confine the plaintiff below to matters which were relevant. On the basis of the evidence before me by way of the affidavit of the plaintiff in this proceeding I cannot be satisfied that the magistrate made an error in determining that the previous affidavit sought to be relied upon were relevant to the proceeding before the Magistrates' Court.

(p) Error in ruling that the plaintiff could not rely upon certain correspondence.

111. For the reasons already stated with respect to ground (o) this ground is not made out.

(q) The Magistrates' Court failed to do justice to the plaintiff's case.

117. I do not consider that as expressed this ground constitutes an appropriate ground. In any event, insofar as it may constitute a ground relying upon denial of natural justice there are no circumstances particularised in support of the ground to support a finding.

(r) Failure to provide proper or adequate reasons.

123. The reasons published by the magistrate below are concise and to the point. In my view the reasons satisfy the principles required by the authorities, namely, that they enable a superior court to determine whether or not there has been an error. Having considered the reasons carefully and thoroughly I do not consider that the reasons of the learned magistrate were improper or inadequate.

(s) Failure to accord natural justice and/or procedural fairness.

129. As it stands this ground is not made out as there are no particulars in support of the assertion. In any event, insofar as the plaintiff relies upon the matters deposed to in his affidavit for the reasons already expressed with respect to ground (q) it is not made out.

132. It follows that none of the grounds relied upon by the plaintiff in support of his application for judicial review under Order 56 of the Rules are made out.

135. Nevertheless, there are aspects of the procedure adopted by the plaintiff that require consideration. Clearly the judicial review component of the originating motion has the effect of allowing the plaintiff to challenge the orders of the Magistrates' Court below on a basis other than that permitted under s.109 of the Magistrates' Court Act in that the originating motion constitutes a challenge brought outside the time provided under s.109. The section requires appeals to be commenced within 30 days after the day the order is made. Order 56 requires proceedings to be commenced within 60 days after the relevant order is made. Hence, the Rules provide for a longer period in which to institute a challenge. It is, therefore, inconsistent with the time limit imposed under s.109 of the Magistrates' Court Act.

138. The jurisdiction of this court to consider such additional or collateral challenges has been considered on previous occasions, for example, in Public Transport Corporation v Waters & Ors [1992] VicRp 10; (1992) 1 VR 151 and subsequently before the High Court in Waters & Ors v Public Transport Corporation [1991] HCA 49; (1991-92) 173 CLR 349. Waters was concerned with the introduction of "scratch tickets" for passengers on trams. Persons with disabilities complained against such introduction to the then Equal Opportunity Board. The complaint was upheld by the Board and the Public Transport Corporation appealed to this court under the relevant appeal provisions whereby the corporation obtained an order nisi. The corporation, in addition to the appeal proceedings issued an originating motion seeking judicial review under Order 56 largely repeating the grounds set out in the order nisi and adding some further grounds. J.D. Phillips J at first instance (at 186-188) expressed the view that it was not clear that the additional grounds were open to the corporation as a result of the express time limit contained in the Equal Opportunity Act 1984. The learned judge was concerned with a time limit for the obtaining of an order nisi by way of right of appeal within 28 days of the decision of the Equal Opportunity Board whilst the originating motion under Order 56 allowed judicial review within 60 days. Before J.D. Phillips J it was argued that the then Magistrates' Court Act 1971 provided for an appeal without prejudice to such other right or remedy as may exist. I note that s.109 of the present Magistrates' Court Act contains no such provision. J.D. Phillips J observed that the effect of allowing a party to bring additional grounds by way of an originating motion after an order nisi had been obtained would amount to a circumvention of the appeal procedures under the Equal Opportunity Act 1984 and provide a party with a simple means to appeal out of time. The learned judge stated that he had "grave doubts that the Public Transport Corporation could rely upon the extra grounds". However, as the Corporation had otherwise succeeded it was unnecessary for the learned judge to express a concluded view on this issue.

141. The complainants before the Equal Opportunity Board in Waters appealed to the High Court. The appeal was successful. In the course of some of the judgments consideration was given to the originating motion filed by the Public Transport Corporation raising additional grounds. The High Court decided the matter on issues other than the additional grounds raised in the originating motion. By way of obiter dicta McHugh J (at 415-416) observed:

"Before this Court, counsel for the Corporation argued that, while the Act does provide a right of appeal, there is an alternative appeal mechanism available under the Supreme Court Rules and that it was not out of time in seeking to raise the s.29(2) defence. At the relevant time, s.49(4) of the Act read as follows: 'Any party to proceedings before the Board may, within 28 days after the day on which the Board makes an order under this Part and after having first served notice of that party's intention to do so on every other party to the proceedings and on the Registrar of the Board, appeal to the Supreme Court against that order on a question of law only as if the order were an order of a Magistrates' Court and the provisions of Part XI of the Magistrates' Courts Act 1971 shall, with such adaptations as are necessary, apply accordingly.' Section 88 of the Magistrates' Courts Act provided for appeal by way of order nisi within one month of the order complained of, but it did so without prejudice to such other right or remedy as may exist. The Corporation described O. 56 as another 'right or remedy' within the meaning of s.88. Consequently, the Corporation claimed that it was entitled to avail itself of O. 56 judicial review proceedings. It may be true that O. 56 is another 'right or remedy' within the meaning of s.88. But s.49(4) does not convert an appeal under that sub-section into an order of a Magistrates Court so that the appeal is under Pt XI of the Magistrates' Courts Act. The appeal is one under s.49(4) and must be lodged within twenty-eight days. The provisions of Pt XI of the Magistrates' Courts Act apply to that appeal 'with such adaptations as are necessary'. The effect of the 'as if' clause in s.49(4) was to apply the procedural machinery of Pt XI of the Magistrates' Courts Act 1971 (now repealed) to an appeal under s.49(4) of the Act with such modifications as were necessary. The policy of s.49(4) as discerned from its terms is that an order of the Board can be challenged only on a question of law by an appeal to the Supreme Court lodged 'within 28 days after the day on which the Board makes an order under this Part and after having first served notice of that party's intention to do so on every other party'. Any provision of Pt XI of the Magistrates' Courts Act which is inconsistent with the legislative intention revealed by that policy must necessarily be modified in its application to an order made by the Board. That means, inter alia, that those parts of s.88 which give a right to appeal within one month of the making of an order and provide that an appeal is not without prejudice to any other 'right or remedy' are not applicable to an order under the Act. The Supreme Court, therefore, had no jurisdiction to hear the proceedings based on O. 56."

145. This view was adopted by Mason CJ and Gaudron J (at 371), by Dean J (at 382) and Brennan J (at 382); Dawson and Toohey JJ (at 397) declined to express any view. It follows that in Waters the majority of the High Court expressed the view (by way of obiter dictum) that the appeal provision in the Equal Opportunity Act had the effect that a decision of the Tribunal might be challenged only on a question of law by an appeal and that, therefore, the Supreme Court had no jurisdiction to hear proceedings under Order 56 to review such a decision.

148. Applying those views to the present matter I consider that the same approach must be applied. Clearly the Parliament intended that the method of appeal from an order of the Magistrates' Court be confined to the statutory right and method of appeal enshrined in the Act and therefore precluded any right of appeal or review under Order 56. Furthermore, if a party sought to issue both an appeal and an originating motion, as has occurred here, the time limits are in conflict and the later time limit provided by Order 56 enables a party to raise matters by review that would otherwise be out of time under the statutory regime. I add that this view is confined to those situations where a court or tribunal has delivered a decision and made orders thereby giving rise to a right to appeal. The view does not extend to those situations prior to final orders where the Tribunal might properly be the subject of Order 56 proceedings because of the way the court or tribunal has conducted itself thereby necessitating relief eg prohibition mandamus and the like.

151. Section 109 of the Magistrates' Court Act 1989 is in a different form to s.88 of the Magistrates' Court Act 1971 as considered by McHugh J in Waters. Whereas the section in the earlier Act provided that a party had a right of appeal without prejudice to such other right or remedy as may exist. McHugh J considered that the Public Transport Corporation in the Waters case was confined to its rights under the Equal Opportunity Act and the Magistrates' Court Act 1971.

154. In the present proceeding the rights of the plaintiff are even more confined. He has a right of appeal under s.109 of the Magistrates' Court Act 1989. In my view the wording of the section is enough to make it clear that the legislation has intended that a party wishing to challenge a magistrate's order on the grounds of an error of law was to be confined to the right contained in s.109. The legislature omitted the words in s.88 in the previous Act of the right of appeal being without prejudice to such other right or remedy as may exist. In the current Act the right to resort to another right or remedy for the purposes of challenge to an order in the Magistrates' Court has been taken away.

157. In the present proceeding the purpose of the Order 56 aspect of the originating motion is tantamount to an appeal by which the plaintiff seeks to overcome the fact that his original appeals in the other Supreme Court proceedings were not issued in time pursuant to s.109 of the Magistrates' Court Act. Indeed, so much is conceded by the plaintiff in the affidavit filed in support of the originating motion.

160. In Marrington & Ors v Millar & Ors [1993] VicRp 29; (1993) 1 VR 391 the Appeal Division of this Court considered an application for judicial review under Order 56 with respect to orders made below by a magistrate constituting the Children's Court. By way of obiter dictum Brooking J criticised the use of judicial review under Order 56 as a means of appeal against decisions. The learned judge observed (at 396):

"It is quite wrong to treat the prerogative writs or judicial review under O.56 as furnishing a means of appeal against decisions, as was unsuccessfully sought to be done in R v West Sussex Quarter Sessions; ex parte Albert and Maud Johnson Trust Limited (1973) 1 QB 188, affirmed (1974) QB 24."

164. The judgment of Brooking J in Marrington was agreed with by the other members of the Appeal Division, Nathan and Byrne JJ. The views of Brooking J in Marrington were cited and followed by Teague J in Stefanovski v Murphy; Willis v Magistrates' Court of Victoria; Nguyen v Magistrates' Court of Victoria, unreported judgment dated 5 May 1995. The observations of Teague J were agreed to by the other members of the Appeal Division, Tadgell and Ormiston JJ.

167. The jurisdiction of the court to hear the present proceeding under Order 56 of the Rules was not raised by either of the parties and was an issue that I raised early on in the proceeding with counsel for the plaintiff, Mr D. Perkins. He relied upon a number of authorities including a judgment at first instance of Ashley J in Stefanovski v Murphy, unreported judgment dated 24 May 1994. In that matter the learned judge it seems with some hesitation considered that proceedings could be brought by way of judicial review despite a right of appeal by statute. In that judgment, Ashley J said:

"I have serious doubts whether the Order 56 procedure is available where a final order has been made by a Magistrates' Court where the matter sought to be raised by the originating motion could be agitated on appeal under s.92".

171. The learned judge referred to the observations of McHugh J in Waters at 415 but ultimately followed the views of Eames J in Roads Corporation v Gerkens, unreported judgment dated 28 May 1993. The judgment of Ashley J in Stefanovski at first instance and of Eames J in Roads Corporation were considered by Gillard J in Chessells v Burg & Anor an unreported judgment delivered 19 June 1997. Gillard J considered that whilst it was unnecessary to decide the issue in that matter he could not see how the Supreme Court could refuse relief under either 56 in appropriate circumstances unless the legislature clearly excluded the right to prerogative writ-type relief. The learned judge considered that there was nothing in the Magistrates' Court Act 1989 or the Rules of the Supreme Court which expressly excluded relief in the nature of the prerogative writs.

174. The judgment of Gillard J in Chessells came before the Court of Appeal in D.J.C. v Burg [1998] VSCA 139. The Court of Appeal approached the matter as one relating to the exercise of the discretion under Order 56 rather than as a matter of jurisdiction. In D.J.C. v Burg the Court of Appeal was concerned with a set of circumstances where the appellant sought an order in the nature of certiorari essentially based upon perceived bias. In addition to the proceedings by way of judicial review under Order 56 that were the subject of the appeal to the Court of Appeal concerning criminal convictions in the Magistrates' Court the appellant had instituted an appeal against both conviction and sentence in the County Court. The hearing of the appeal to the County Court had not been heard at the time of the appeal concerned with judicial review under Order 56 before the Court of Appeal. The Court of Appeal considered that any complaint that the appellant had as to the treatment he had received at first instance in the Magistrates' Court could necessarily be overcome when the criminal charges were heard again in the County Court. The Court of Appeal considered that the right of appeal to the County Court would justify refusal of the relief in the nature of certiorari in the judicial review proceeding. The observations of the Court of Appeal in D.J.C. v Burg were by way of obiter dictum and, therefore, do not bind me. Nevertheless, I consider that the circumstances in D.J.C. v Burg were such that the facts of that matter render it distinguishable from the proceeding presently before me. I consider that the present proceeding appears to fall squarely within the type of circumstances contemplated at first instance by J.D. Phillips J in Waters and later by the High Court in that authority.

177. For these reasons, I would in any event dismiss the proceeding on the basis that the court has no jurisdiction to hear the matter. Alternatively, on the basis of the approach adopted by the Court of Appeal in D.J.C. v Burg I would decline to exercise the discretion sought by the plaintiff.

180. It follows that the plaintiff fails and orders will be made accordingly.