Plaintiff v Defendants

Supreme Court of Victoria|2009-06-25|Before: BEACH J

JUDGMENT IN RESPECT OF WHICH JUDICIAL REVIEW IS SOUGHT:

Goldberg v Walter (unreported, County Court of Victoria, Judge Hogan, 11 October 2006)

1 The plaintiff, Mr David Goldberg, was charged in the Magistrates' Court at Dandenong with using an unregistered motor vehicle on a highway contrary to s 7 of the Road Safety Act 1986 ("the Act"). He was also charged with forging a vehicle identifying number, contrary to s 72 of the Act. The charges related to an occasion on 23 October 2005 when Mr Goldberg was apprehended by the police allegedly driving an unregistered motor vehicle with a number plate (which did not belong to the vehicle) affixed to its rear. The plaintiff was convicted of both charges, fined $750 as part of an aggregate order and ordered to pay $59.80 statutory costs.

2 The plaintiff appealed to the County Court against the convictions and sentences[1] of the Magistrates' Court. The appeal came on for hearing before Judge Hogan on 11 October 2006. The appeal was successful in part. Her Honour made orders as follows:

"1. The orders of the Magistrates' Court at Dandenong made on 25 July 2006 are set aside.

2. On one charge of using an unregistered motor vehicle the appellant, without conviction, is fined the sum of $100.

3. On one charge of forging a vehicle identification number, the appellant is convicted and fined $300.

4. The appellant is ordered to pay statutory costs in the sum of $59.80.

5. There is a stay of 30 days on payment of the fines."

3 In this proceeding, the plaintiff seeks to have the orders of Judge Hogan set aside. The plaintiff's claim is for an order in the nature of certiorari pursuant to order 56 of the Supreme Court (General Civil Procedure) Rules 2005. From the endorsement on his originating motion, it would appear that the plaintiff's grounds for seeking the setting aside of Judge Hogan's orders are as follows:

"1. The Appellant was denied Natural Justice by an order made where there was no evidence before the Court which could lead to such finding against the Appellant. The order imposed an impermissible disability and discrimination by exercise of Judicial Act on the Appellant, when in a legal system an inequality is introduced in the enjoyment of certain rights.

2. The Honourable Judge Her Honour Hogan prejudiced the Appellant's legitimate rights and expectations by Her unequal treatment. She thereby allowed an appeal to take place from the proceedings of the Magistrates' Court at Dandenong however not such hearing took place at that court and a statements of fines and penalties imposed was fabricated and Her Honour was fully aware of that. It is a common law duty for the Court to act fairly, in the sense of according fairness, in the making an order, which affects rights, interests and legitimate expectations. The Appellant's rights to Natural Justice were destroyed, defeated and prejudiced by this order.
3. Honourable Judge Her Honour Hogan prejudiced the Appellant's legitimate rights and expectations by Her unequal treatment. She thereby discriminated against the Appellant in enjoyment of certain rights by neglecting or refusing to show what she claims was a certified exhibit of an order made by the Dandenong Magistrates' Court that was in Her possession when there was no such order made by the Court.
4. How any reasonable judge could allow photocopies be presented before the Court and to be used as the exhibits when in fact they were not certified copies of original documents?
5. Why did Her Honour Judge Hogan fail to apply the rule of evidence to the case before Her and made an order against the Appellant on the basis of verbal and fabricated evidence presented by the Respondent?
6. It is a common law duty for the Court to act fairly, in the sense of according fairness, in the making an order, which affects rights, interests and legitimate expectations. The Appellant's rights to Natural Justice were extended to the protection of legitimate expectations which were destroyed, defeated and prejudiced by this order.
7. Subject to any act, the jurisdiction of the court the Appellant is seeking any relief or remedy in the nature of certiorari to be exercised only by way of judgement or order.
8. The claim is made under the Order 56, 56.01 Chapter 1,2,3,4 and 5 of the Rules of the Supreme Court 1996 for the Judicial Review."

4 The first defendant is the informant, and was the respondent to the plaintiff's appeal in the County Court. The first defendant resists the plaintiff's application. While the second defendant filed an appearance, it did not take any active role in the proceeding and was content to "merely abide the decision of the Court".[2] For the reasons given below, the proceeding will be dismissed.

5 The plaintiff appeared for himself before Judge Hogan. The plaintiff has had some experience appearing for himself in litigation.[3] At the start of the proceeding, Judge Hogan explained the way in which the hearing would proceed. The following exchange occurred between her Honour and Mr Goldberg:

"HER HONOUR: Just listen. So the prosecution will call its witnesses, you then have an opportunity to cross-examine those witnesses which means that you can ask questions of those witnesses, they must obviously be relevant to the charges and the circumstances in which the charges are said to have taken place. It is your obligation during cross-examination to put your case, in other words anything that you say about the case must be put to the Crown witnesses so that they are in a position to answer what you say has occurred.

MR GOLDBERG: Yes, I understand that.

HER HONOUR: At the end of the Crown case it is a matter for you as to what, if any, evidence you call - Mr Tipstaff, have you got the usual outline of rights to give to a self-represented person? That sets out your rights in relation to the conduct of this matter. Do you understand?

MR GOLDBERG: Yes, I do."[4]

6 During the course of the hearing, evidence was given by Senior Constable Richard Charles Walter, the first defendant. He gave evidence that on 23 October 2005 he was performing traffic duties in company with Senior Constable Paul Peebles in Bennett Street, Dandenong. Senior Constable Walter was sitting in the passenger seat and, as vehicles passed, he was entering registration numbers. As he put in the registration number of the plaintiff's vehicle "It came up as not matching the car that I saw".[5] The car being driven by the plaintiff was a Mazda sedan and the registration "came up as a Ford sedan".

7 The first defendant and Senior Constable Peebles then intercepted the plaintiff's vehicle. It was observed to have only one numberplate, which was affixed to the rear of the vehicle. The first defendant then told the plaintiff that the reason he had been apprehended was because the registration plate did not match the car. The first defendant's evidence was that the plaintiff was asked where he obtained the plate and the plaintiff said that it was in the car when he bought it. The plaintiff was also alleged to have said that he was the one who put the plate on the vehicle.[6]

8 The plaintiff was asked whether the car was registered. The first defendant's evidence was that the plaintiff said that it was not registered but that he had a permit for the vehicle. The plaintiff produced a then current and valid permit to the first defendant.

9 The permit was valid for the purpose of taking the vehicle to obtain a roadworthy certificate or to take it to the nearest VicRoads office. The plaintiff was asked why he was driving the vehicle when he was apprehended. According to the first defendant, the plaintiff answered that "he was taking a friend to look at churches or to look at a church".[7] At the time he was apprehended, it was approximately 5.20pm on a Sunday afternoon. During the course of the first defendant's evidence, the prosecution tendered a certificate under s 84 of the Road Safety Act showing that the vehicle with the registration number shown at the rear of the plaintiff's vehicle at the time he was apprehended was unregistered. The certificate showed that the registration belonged to a 1994 Ford sedan (not the plaintiff's vehicle) and that the registration had expired on 22 December 1997. Additionally, a certificate in relation to VicRoads permit F414339 (expiry date 15 November 2005) was tendered. This certificate related to a 1997 Mazda 323 sedan (the vehicle being driven by the plaintiff). The document provided that "the vehicle may only be used on the road to obtain a current roadworthiness certificate and/or drive the vehicle to the nearest VicRoads registration office".[8]

10 Senior Constable Peebles gave evidence. His evidence was largely corroborative of the first defendant's evidence.

11 While Mr Goldberg cross-examined the first defendant and Senior Constable Peebles, he neither gave evidence himself nor called any witnesses on his behalf. It would appear that at one stage he contemplated calling a witness, but chose not to do so.[9] At the conclusion of Senior Constable Peebles' evidence, the prosecution closed its case. Her Honour asked Mr Goldberg what he wished to do, to which he replied "Nothing". The plaintiff then said he would make a submission. When asked whether he wished to give sworn evidence, he said "No".[10]

12 After hearing the plaintiff's submission, her Honour found the charges proved on the basis of the uncontradicted evidence on behalf of the prosecution. There was then some debate about a prior conviction, before her Honour made the orders set out above.

13 From the originating motion and the plaintiff's affidavits in support,[11] it would appear that the plaintiff's complaints are as follows:

(b) some form of discrimination (which may or may not constitute one of the alleged denials of natural justice);

(c) breach of a common law duty to act fairly (again, which may or may not constitute one of the alleged denials of natural justice);

(d) a failure (or failures) to apply the rules of evidence (allowing photocopies to be presented rather than certified copies of original documents and acting on "verbal and fabricated" evidence); and

(e) an involvement by or on behalf of ASIO which is alleged to justify the plaintiff not giving evidence because "no matter what evidence he will provide before the Court he still will be found guilty".[12]

14 In his oral submissions, the plaintiff identified the issues as follows:

(a) First, there was no hearing in the Dandenong Magistrates' Court. Judge Hogan was said to be wrong in allowing the plaintiff's appeal to continue because this denied him natural justice, as he was "appealing against something which did not take place".[13]

(b) Secondly, it was said that there was no point in the plaintiff giving evidence before Judge Hogan "because she was basically biased against me".[14]

(c) Thirdly, complaint was made that Judge Hogan "refused" to produce documents to the plaintiff (specifically, documents evidencing the fact that a hearing had occurred at the Magistrates' Court at Dandenong).

(d) Fourthly, complaint was made concerning the way her Honour dealt with the permit the plaintiff had to use the vehicle.

(e) Fifthly, complaint was made that her Honour did not receive a tape recording of a conversation between the plaintiff and the first defendant.[15]

15 Some of these complaints were said by the plaintiff to constitute denials of natural justice. Others appeared to be stand alone complaints (presumably being either errors of law on the face of the record or jurisdictional errors). I propose to deal with each of the plaintiff's complaints to see if any of them are made out, before considering whether or not they (any of them that are made out) constitute grounds for relief under order 56.

16 The plaintiff asserts that no hearing took place in the Magistrates' Court at Dandenong. In his affidavit of 9 October 2008, he deposes that the certified extract of the register of the Magistrates' Court at Dandenong showing him as having been convicted and fined $750 with statutory costs of $59.80 "was fabricated by ASIO". In support of his contention, the plaintiff relies upon the fact that the Magistrates' Court cannot produce a transcript of the hearing of 25 July 2006. Further, the plaintiff relies upon an admission made by "the Victoria Police that no hearing took place on that day and no evidence was given by the first respondent or Senior Constable Peebles".[16]

17 Having examined the evidence, the plaintiff has not satisfied me that there was no hearing on 25 July 2006. Further, when the plaintiff raised this matter with Judge Hogan, her Honour explained that the proceeding before her was an appeal and asked the plaintiff whether he wished to proceed. At this point, the plaintiff elected to proceed.[17] Accordingly, there is nothing in this ground of complaint. Whatever happened in the Magistrates' Court at Dandenong, the plaintiff elected to proceed with his appeal before Judge Hogan. This appeal was a rehearing de novo. Whatever complaint the plaintiff had at that time about there being no hearing in the Magistrates' Court (a matter about which I am not satisfied in any event) was abandoned when the plaintiff proceeded with his appeal before Judge Hogan.

18 One of the reasons the plaintiff contends that he did not give evidence before Judge Hogan was "because she was basically biased against me".[18] No issue of bias (actual or ostensible) was raised by the plaintiff before her Honour. A reading of the transcript discloses that there may have been some tension between her Honour and the plaintiff at various points during the appeal. For example, the transcript records the following:

"HER HONOUR: Are you going to argue with me about what the legal procedure - - -?

MR GOLDBERG: Yes, I will because you're wrong and I need to bring it to your attention. I - - -

HER HONOUR: Would you just remember your manners. ...".[19]

...

"MR GOLDBERG [cross-examining the first defendant]: ... The only thing, you have the conversation with me when you returned the ticket to me and my driver's licence. So I warn you, you be very careful what you say Mr - - -

HER HONOUR: Now, Mr Goldberg - - -

MR GOLDBERG: You'd be lying.

HER HONOUR: Would you remember your manners, Mr Goldberg.

MR GOLDBERG: Yes, I do - yes, I remember - - -

HER HONOUR: You're before a Court and you will behave appropriately, thank you. It's not your role to warn any witness in this Court. If there's any warning to be done it will be done by me, all right?"[20]

...

"HER HONOUR: I'm sorry, Mr Goldberg, but you have to, at this stage, ask questions of the witness not make a speech to me. Okay?

MR GOLDBERG: I'm not making speeches here - - -

HER HONOUR: Look, as I understand it, you're asking the Acting Sergeant was he aware that the Chief Magistrate of the Magistrates' Court was removed because - I'm sorry I didn't follow what you said. What was your question?

MR GOLDBERG: I'll withdraw the question. Obviously it's not going to get me - - -

HER HONOUR: I don't know because I don't know what the question was, but, anyway, ask whatever questions you want to, provided they're relevant, Mr Goldberg, and far be it for me to try and hurry you along, but it is 25 to 5 and I've been doing my best to try and accommodate this case today.

MR GOLDBERG: Your Honour, with due respect to you, my matter was listed today for appearance and it's supposed to be all in my name. I don't know why - - -

HER HONOUR: Supposed to be what?

MR GOLDBERG: Only be one - - -

HER HONOUR: No, that's not right, but let's just keep going. Come on, Mr Goldberg. Just ask whatever relevant questions you feel you have to. I'm not stopping you, but they have to be relevant. Okay?".[21]

19 Nothing in these exchanges discloses any actual or ostensible bias[22] on the part of her Honour. Further, an examination of the whole of the transcript discloses no basis for any contention that her Honour was actually biased or that there was a reasonable apprehension of bias.

The complaint concerning her Honour's alleged refusal to produce documents to the plaintiff

20 The plaintiff's complaint under this heading is that her Honour "refus[ed] to show what she claim[ed] was a certified exhibit of an order made by the Dandenong Magistrates' Court that was in her possession when there was no such order made by the Court".[23] However, an examination of the transcript below discloses that the plaintiff made no request of her Honour to be provided with a copy of the certified extract. Further, the transcript does not disclose any refusal by her Honour to provide a copy or to permit the plaintiff to be provided with a copy of the relevant document. Indeed, Mr Goldberg conceded before me that he also could not find anything in the transcript before Judge Hogan where she refused him permission to look at the document.[24] While Mr Goldberg's recollection is that her Honour refused him permission to look at the extract of the Magistrates' Court register, the transcript of the hearing before Judge Hogan discloses that his recollection is faulty. In any event, nothing turns on this point. In circumstances where Mr Goldberg elected to go on with his appeal before Judge Hogan, any failure to show him a copy of the extract of the Magistrates' Court register could not form the basis for the granting of the relief sought in this case.

21 The plaintiff's defence to the charge of using an unregistered motor vehicle on a highway contrary to s 7 of the Act was that he had a valid permit at the time he was apprehended. During the course of the prosecution case before her Honour, a certificate, issued pursuant to s 84 of the Act, was tendered in relation to the permit.[25] The certificate recorded that the records of the Roads Corporation disclosed a permit in the name of the plaintiff in respect of a 1997 blue Mazda 323 sedan. The certificate disclosed that the permit was current at the time the plaintiff was apprehended and recorded the conditions for the issue of the permit as follows:

"That the vehicle may only be used on the road to obtain a current roadworthiness certificate and/or drive the vehicle to the nearest VicRoads Registration Office."

22 The plaintiff's complaint is that the certificate does not disclose all of the conditions upon which the vehicle could be used. In these circumstances, reliance by her Honour upon the certificate was said to constitute error and/or a denial of natural justice.

23 Reference to the actual permit discloses that the plaintiff was permitted to use the vehicle:

to travel to and from a Licensed Vehicle Tester for repairs and testing (by the Licensed Vehicle Tester) for the purpose of obtaining a Certificate of Roadworthiness (RWC) issued in Victoria; and/or
in the course of obtaining a Vehicle identity Validation Certificate from a Vehicle identity Validation inspector; and/or
in the course of repairs, modifications or testing for the purpose of obtaining a Vehicle Assessment Signatory Scheme Approval Certificate."[26]

24 During the course of the hearing before Judge Hogan, the plaintiff cross-examined both the first defendant and Senior Constable Peebles by reference to the terms of the permit (rather than the certificate).[27] Further, her Honour called for and inspected the permit.[28] There is nothing in the material to suggest that her Honour relied on the evidence of the certificate under s 84 of the Act to the exclusion of the terms of the actual permit. Additionally, there is nothing in the material to suggest that her Honour wrongly convicted the plaintiff because she relied upon the certificate and not the terms of the permit. It is to be remembered that the plaintiff gave no evidence before her Honour. The uncontradicted evidence called on behalf of the prosecution was that the plaintiff was taking a friend to look at churches or to look at a church. That was the admission the plaintiff was alleged to have made. In not giving evidence and not calling any witnesses, that evidence was left uncontradicted. Specifically, there was no evidence that the plaintiff was using the vehicle in compliance with the permit (or more precisely, with any of the dot points referred to in paragraph 23 above).[29]

25 As the evidence I have referred to above discloses, her Honour was correct to conclude that the uncontradicted evidence before her was that the vehicle in which the plaintiff was apprehended was being driven unregistered. The only evidence before her Honour as to the purpose for which the vehicle was being used at the time the plaintiff was apprehended was the plaintiff's admission (which he disputes) concerning looking at a church or churches. There was no evidence that the plaintiff was using the vehicle to travel to or from a Licensed Vehicle Tester, or in the course of obtaining a Vehicle identity Validation Certificate, or in the course of repairs, modifications or testing for the purpose of obtaining a Vehicle Assessment Signatory Scheme Approval Certificate. The plaintiff's complaint under this heading does not disclose error, much less error on the face of the record, jurisdictional error, a breach of the rules of natural justice, or any other ground which might found a remedy in the nature of prerogative relief.

26 During the hearing before me, Mr Goldberg made reference to a tape recording made by him.[30] Mr Goldberg told me that he offered to present the tape, but that Judge Hogan "was not interested in whatever was in the tape".[31]

27 An examination of the transcript of the hearing before Judge Hogan discloses that the tape was first referred to by Mr Goldberg while her Honour was calling through the list of cases fixed on that day. Mr Goldberg referred to the tape when being asked how long the matter was likely to take. He said it would take a bit longer than half an hour to an hour and then said:

"There was a conversation with one of the officers and I recorded that conversation so it's going to take a bit more than that - - -".[32]

28 When the matter was called again during the afternoon, the issue of the tape was raised by the prosecutor. There was then a discussion between the prosecutor and her Honour as to what use Mr Goldberg might seek to make of the tape and whether Mr Goldberg would have to satisfy her Honour as to the provenance of the tape. Her Honour said:[33]

"Well, it's a difficult situation. I mean, this is an appeal from the Magistrates' Court. We can hold a voir dire if need be, where Mr Goldberg can give evidence as to the circumstances in which he made the tape but it's somewhat artificial in the context of me being the trier of fact and the determiner of the law. It's not a jury trial.

I mean, the usual situation would be that he would put to the witness whatever evidence he proposed to call in accordance with the rule in Browne v Dunn and then the evidence would be called. It's not a situation where a person in the Magistrates' Court is obliged to give written statements as to the evidence he proposes to call. It's not the province of the accused at all, unless he's claiming an alibi of course."

29 Following this exchange, the issue of the tape was raised by the plaintiff during his cross-examination of the first defendant. The plaintiff said:[34]

"I put it to you that you never talked to me. See, I warn you very carefully because I have recorded the conversation with the police officer who talked to me at that time, and you have not spoken to me at all. You took the driver's licence from me but you have said nothing. The only thing, you have the conversation with me when you returned the ticket to me and my driver's licence."

These statements were what led to the second of the three exchanges between the plaintiff and her Honour referred to in paragraph 18 above.

30 At the conclusion of the plaintiff's cross-examination of the first defendant, her Honour referred to the tape. There was then an exchange between her Honour and the plaintiff concerning the tape.[35] In the course of this exchange, the following was said:

"HER HONOUR: You've indicated that you've taped some conversation. If you're proposing to rely on the tape you must show it to the witness.

MR GOLDBERG: No, what I'm going to do now, to - no, that's what I did ask him. As long as this matter is finished, whatever the payment will be, I will file further charges against him because I've got everything

recorded - - -

HER HONOUR: All right.

MR GOLDBERG: - - - in the Magistrates' Court.

HER HONOUR: All right. You are not proposing to put to the witness - - -

MR GOLDBERG: No, no.

HER HONOUR: - - - what's on the tape.

MR GOLDBERG: I warned him and now what I'm going to do - - -

HER HONOUR: It's no place for you to warn - - -

MR GOLDBERG: No, no, I was - - -

HER HONOUR: As I've indicated, Mr Goldberg - - -

MR GOLDBERG: - - - playing a fair game because - - -

HER HONOUR: It doesn't sound to me like you're playing a fair game. If you are putting to the witness that what he said isn't true because you have taped something which indicates to the contrary and you're not playing the tape. But that's what you saying you're going - you're not proposing to play the tape.

MR GOLDBERG: Well - - -

HER HONOUR: Is that so?

MR GOLDBERG: I'm the only one (indistinct).

HER HONOUR: Yes.

MR GOLDBERG: And I choose to do what I want to do.

HER HONOUR: Yes, of course you do. All right.

MR GOLDBERG: And - but - - -

HER HONOUR: Thank you.

MR GOLDBERG: - - - that is the position.

HER HONOUR: That's all the questions you want to ask?

MR GOLDBERG: Yes, that's all. Thank you."

31 Far from her Honour refusing to receive the plaintiff's tape recording, her Honour (in effect) invited the plaintiff to play the tape. As the transcript shows, it was the plaintiff who chose not to play the tape. Further, it was the plaintiff who chose not to attempt to put the tape in evidence.

The complaints concerning the rules of evidence

32 The plaintiff makes two complaints in respect of the rules of evidence:

(a) first, complaint is made concerning the admission of photocopies rather than certified copies of original documents; and

(b) secondly, complaint is made concerning her Honour's admission of "verbal and fabricated evidence".[36]

33 There is no substance in either of these complaints. The transcript below shows that her Honour admitted into evidence two exhibits: namely, a "Roads Corporation certificate referable to a 1994 Ford sedan registered number NCS 106" (Exhibit A) and a "Roads Corporation certificate dated 24/3/06 referable to a permit [then due] to expire on 15/11/05 in relation to a 1997 blue Mazda 323 sedan" (Exhibit B). As to whether these documents were in fact photocopies or originals or certified copies, neither the transcript nor the evidence discloses the true position with certainty. On their face (that is, from their description), it would appear that the exhibits were original documents. In any event, no objection was taken by the plaintiff before her Honour as to the admission of these documents. The documents were clearly admissible. Their admission does not constitute a ground for relief.

34 As to the so-called "verbal and fabricated evidence", again, there is nothing in this point. Her Honour was perfectly entitled to accept the uncontradicted evidence of the first defendant and Senior Constable Peebles. Additionally, her Honour was perfectly entitled to rely upon the documentary evidence tendered below. The plaintiff's complaints do not amount to an error of law, much less an error of law on the face of the record or jurisdictional error. The plaintiff's complaints in relation to the rules of evidence must be rejected.

35 In his affidavit evidence in this Court, the plaintiff has made a number of allegations about the involvement of ASIO in his prosecution in respect of the charges that are the subject of this proceeding. The allegations are of a high level and conclusionary nature. There was no attempt by the plaintiff to produce independent and objective evidence to back up his assertions. I do not accept the plaintiff's assertions. I do not propose to add to the length of this judgment by setting them out. It is sufficient to say for the purposes of this proceeding that the plaintiff's assertions in respect of ASIO are highly improbable.[37] The plaintiff's case in this respect was not assisted by what appeared to be inconsistencies in his allegations concerning ASIO. For example, in cross-examination before Judge Hogan, it was suggested that the vehicle had been seized by Victoria Police for 18 months.[38] However, in his affidavit evidence in this proceeding,[39] it was alleged the vehicle was seized by ASIO and in the possession of ASIO for 18 months.[40] In any event, the plaintiff's assertions do not disclose any basis for the granting of the relief sought by him.

36 The proceeding in respect of which the plaintiff seeks judicial review was an appeal by way of rehearing de novo from orders made in the Magistrates' Court. If the plaintiff wanted to set aside the orders made in the Magistrates' Court on the basis that he did not get notice of the hearing, or if the plaintiff wished to have those orders quashed on the basis there was no hearing, then he could have taken steps designed to achieve those objectives.[41] However, he chose to pursue an appeal pursuant to s 83 of the Magistrates' Court Act. At the hearing of that appeal, the procedure was explained to the plaintiff. The plaintiff was given the opportunity of cross-examining the prosecution witnesses, giving evidence, calling witnesses and making submissions. The plaintiff availed himself of the opportunity of cross-examining the police witnesses and making submissions. He chose not to give evidence or call witnesses. This was not a case of the kind referred to by Bell J in Tomasevic v Travaglini.[42]

37 Having examined the evidence in this matter (both the documentary evidence and the transcript of the hearing below), I have concluded that the plaintiff received a fair trial before an impartial judge. There was no unfairness, no discrimination, no imposition of any disability (impermissible or otherwise),[43] no breach of the rules of natural justice, no breach of any duty, no destruction, defeat or prejudice of any legitimate expectation[44] and no error in the conduct of the proceeding before Judge Hogan. Further, there was no jurisdictional error and no error of law (on the face of the record, or otherwise) committed by her Honour. Additionally, the findings and conclusions made by her Honour were open. While I have examined the complaints made by the plaintiff, it is to be remembered that certiorari is not an appellate procedure enabling either a general review of the order sought to be impugned or a substitution of that order with a decision which this Court thinks should have been made. As was said by the High Court in Craig v South Australia,[45] where certiorari runs:

"... it merely enables the quashing of the 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, fraud and error of law on the face of the record".

None of these established grounds have been made out.

38 Accordingly, and for the reasons given above, the plaintiff's proceeding must be dismissed. I will hear the parties on the question of costs.

[1] Pursuant to s 83 of the Magistrates' Court Act 1989.

[2] See the letter from the Assistant Victorian Government Solicitor to the Prothonotary dated 16 November 2006 in which reference to the High Court's decision in R v Australian Broadcasting Tribunal; ex parte Hardiman & Ors [1980] HCA 13; (1980) 144 CLR 13 is referred to.

[3] See for example Goldberg v Jefferson Ford Pty Ltd [2000] VSC 46, Goldberg v Office of Fair Trading and Business [2000] VSC 85, Goldberg v Maclennan [2000] VSCA 129, Goldberg v Commissioner of State Revenue [2002] VSCA 26, Goldberg v Brown [2003] VSC 104, Goldberg v Morrow [2003] VSCA 127, Goldberg v Howells [2003] VSC 414 and Goldberg v Laughlin [2009] VSC 231.

[11] Sworn 9 October and 5 November 2008.

[12] See paragraph 10 of the plaintiff's affidavit sworn 5 November 2008.

[16] See the plaintiff's affidavit of 9 October 2008.

[22] As to ostensible bias, see generally R v Watson; ex parte Armstrong [1976] HCA 39; (1976) 136 CLR 248, Livesey v New South Wales Bar Association [1983] HCA 17; (1983) 151 CLR 288, Vakuata v Kelly [1989] HCA 44; (1989) 167 CLR 568, Rozenes v Judge Kelly [1996] VicRp 20; [1996] 1 VR 320 and State of Victoria v Psaila [1999] VSCA 193.

[23] See paragraph 3 of the endorsement on the originating motion.

[26] See clause A2 of the conditions of use of the permit, which is Exhibit B to the affidavit of the plaintiff sworn 9 October 2008. While s A of the conditions of use of the permit contains two other clauses (clauses 1 and 3) permitting use of the vehicle in certain circumstances, neither of these were referred to nor relied upon by the plaintiff in this proceeding.

[29] While it was suggested by the plaintiff in cross-examination before Judge Hogan that he had told the police he was taking the car for a test drive and/or was driving to pick up some spare parts (T42 below), no evidence was given by the plaintiff that this was in fact what he was doing at the time he was apprehended by the police and, accordingly, there has never been any occasion to determine whether any such activity fell within the terms of the permit.

[36] See paragraphs 4 and 5 of the endorsement on the originating motion.

[37] For example, the plaintiff blamed ASIO for the fact that there was no hearing in the Magistrates' Court, saying that the matter was so important that ASIO bypassed the normal hearing in the Magistrates' Court and simply produced a penalty notice which was mailed to the plaintiff. Similarly, with reference to the vehicle in which the plaintiff was apprehended, the plaintiff said "It was a motor vehicle which was planted by ASIO for a purchase by [me] so it can be seized with [the] belief that it was not the same motor car" (see paragraphs 5 and 8 of the plaintiff's affidavit sworn 9 October 2008).

[39] The plaintiff's affidavit sworn 9 October 2008.

[40] These assertions may be reconcilable on the basis that the plaintiff believes that ASIO is the Australian secret police (see the plaintiff's letter to the US Senate - Exhibit C of the plaintiff's affidavit sworn 9 October 2008). However, it is not necessary to finally determine this issue.

[42] [2007] VSC 337; (2007) 17 VR 100 ( and see in particular paragraphs [138]-[142]).

[43] Cf paragraph 1 of the endorsement of the originating motion.

[44] Cf paragraph 6 of the endorsement of the originating motion.

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