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[2018] VSC 175
Supreme Court of Victoria
2018-04-13
KEOGH J
Original judgment source is linked above.
The application was refused by the infringements registrar on 3 March 2015. Mr Greco was provided with a notice pursuant to s 66(3) of the Act citing the reason for this refusal as:
Registrar is not satisfied that grounds outlined in application justify matters to be revoked.
12 A person whose application for revocation has been refused under s 66(2) may apply to have the application for revocation referred to the Magistrates' Court. On 2 July 2015 Mr Greco's application for revocation was referred to the Magistrates' Court and was ultimately listed for hearing before Judicial Registrar Bartlett on 8 June 2016. During the hearing Mr Greco conceded that he had received the infringement notices, and that he did not exercise his right to elect to have the infringement offences heard and determined by a court. Mr Greco submitted he had corresponded and communicated with each enforcement agency in relation to the infringement notices, advised the agencies he was not the driver but would provide particulars in good time, and sought further and better particulars. Mr Greco submitted that he had not been afforded natural justice or procedural fairness because all processes to that point had been dealt with , and he had not been afforded the right to defend himself. Mr Greco made a number of legal submissions, including that the Infringements Court did not have judicial powers; the notices served on him were not validly executed; he was guaranteed the right to be tried in person and to defend himself by the (the Charter); and the Infringements Court was operating invalidly from premises that were not gazetted. Mr Greco submitted that for most of the period of the offences he was not driving because of health problems, the infringement notices were left in the hands of his staff and were put in the '[too] hard basket', his business had folded and he had lost everything. Judicial Registrar Bartlett refused the applications on the basis that Mr Greco had been afforded procedural fairness, but failed to make a election or to nominate another driver within the prescribed timeframes.
13 On 7 July 2016 Mr Greco made an application for review of the hearing and determination by Judicial Registrar Bartlett pursuant to s 16K(3)(a) of the Magistrates' Court Act 1989 (Vic). The review process is governed by the Magistrates' Court (Judicial Registrars) Rules 2015 (Judicial Registrars Rules). Rule 16 provides:
Review of determination of Court constituted by judicial registrar
(1) An application under section 16K(3)(a) of the Act for review of a determination of the Court constituted by a judicial registrar must be -
(a) in Form 1; and
(b) accompanied by an affidavit that must state the reasons for the application.
(2) The application and the affidavit must be filed within 14 days after the day on which the determination was made.
(3) The Court may extend time under paragraph (2) before or after the time expires, whether or not an application is made before the time expires.
(4) The application for the review must be determined by the Court -
(a) after consideration of the application and the accompanying affidavit; and
(b) unless the Court otherwise directs, without notice to any person.
Direction for review of determination operates as stay of order of judicial registrar
If the Court directs that the hearing and determination of a proceeding by the Court constituted by a judicial registrar be reviewed, the direction operates as a stay on any order made by the judicial registrar in the proceeding, unless the Court otherwise orders.
14 The application for review was not filed within 14 days of the determination by Judicial Registrar Bartlett. In an affidavit in support of his application to extend time Mr Greco stated:
On Thursday 16 June 2016 I made contact with the Law Institute of Victoria (LIV) seeking legal advice to appeal the decision to the Supreme Court on several points of law.
Mr Greco stated that he had been provided with the names of three lawyers and had made an appointment to attend with one on 8 July 2016. He also said he had attended the Prothonotary's office at the Supreme Court on 24 June 2016, was told he had 60 days to appeal Judicial Registrar Bartlett's decision, and was directed to the forms required for such an appeal. It is apparent that the time for making the application to review the determination of Judicial Registrar Bartlett was extended.
15 Mr Greco filed a second affidavit in support of the application for review, in which he complained Judicial Registrar Bartlett did not take into account his correspondence with the enforcement agencies or the fact that he was not the driver when the offences occurred, and did not accord him natural justice, procedural fairness or a fair hearing. Under the heading 'Grounds for Review', Mr Greco stated:
Mr Greco also filed a comprehensive written outline of submissions in support of his application for review expounding the grounds set out in his affidavit.
16 The application for review was determined by Magistrate King on 28 October 2016. It is convenient to set out Magistrate King's reasons for refusing the application to review:
This is an application for a review of a decision of a Judicial Registrar.
Mr Greco argued that he had been denied procedural fairness. In so far [sic] as that argument may be said to apply to the proceedings before the learned Judicial Registrar, I cannot agree. I have listened carefully to the proceedings before the Judicial Registrar. The Judicial Registrar gave Mr Greco every opportunity to present his arguments in support of his appeal and to respond to those put by the opposing parties.
In so far [sic] as the argument relates to him being denied procedural fairness by being unable to have his day in court in relation to the original offences giving rise to the infringement notices, it was put to the Judicial Registrar and was unchallenged that the infringement notices had been properly served. Pursuant to s 16 of the [Infringements Act 2006 (Vic)] Mr Greco had the opportunity to seek to have the matter dealt with in court. Infringement notices clearly state that option. It was not that Mr Greco was denied procedural fairness; it was simply that by neglect he elected not to pursue it.
No satisfactory reason was given by Mr Greco to the learned Judicial Registrar that would provide grounds for referring each of the offences for trial by the court. Being busy at work and relying on the efforts of others and having financial challenges as put by Mr Greco was insufficient to disturb the registrar's decision.
There is no arguable case in relation to the constitutional arguments put by Mr Greco.
There is no basis for disturbing the Judicial Registrar's decision.
The application will be refused.
17 On 24 April 2017 Mr Greco filed originating motions to commence these proceedings seeking to review the decision of Magistrate King. Pursuant to r 56.02(1) of the Rules, Mr Greco had 60 days from the date of Magistrate King's determination to commence proceedings. The defendants submitted that, taking account of the vacation period, that time expired on 12 January 2017. Mr Greco commenced these proceedings more than three months out of time.
18 Mr Greco made an application to extend the time to commence proceedings, relying on r 56.02(3) of the Rules, which provides:
The Court shall not extend the time fixed by paragraph (1) except in special circumstances.
In Lazarevic v Victoria Police,[7] Derham AsJ summarised considerations relevant to an application pursuant to r 56.02(3) as:
(a) The rule requires the Court to be objectively satisfied that special circumstances exist;
(b) The existence of special circumstances is to be determined by reference to all the circumstances of a case;
(c) The factors relevant to the exercise of the discretion under Rule 56.03(2) include, but are not limited to:
(i) the period of the delay;
(ii) the reason for the delay;
(iii) whether the plaintiff has an arguable case;
(iv) the justice to both parties, including the prejudice to the parties; and
(v) the public interest in the finality of litigation.
19 In affidavits in support of his application for extension of time Mr Greco stated:
(a) In mid-November 2016 he obtained three referrals from the Law Institute of Victoria for a 30-minute consultation with a lawyer, but only one of the firms to which he was referred could provide the necessary assistance, and he had an appointment with them on 14 December 2016.
(b) Because of family illness he was required to travel overseas in early December 2016, and did not return to Australia until 18 January 2017.
(c) He attempted, with the assistance of a friend, to commence proceedings while he was overseas, but was unsuccessful because the documents did not meet court requirements.
(d) He was faced with continuing family issues upon his return to Australia in January 2017, which took a toll on him and resulted in him feeling exhausted and depressed, and that he commenced proceedings as soon as he could.
During oral submissions Mr Greco accepted that he was aware at all times that he had 60 days within which to commence proceedings. Other than to refer to the family issues which he detailed in his affidavit, Mr Greco was unable to explain why it took him over three months from the date of his return to Australia on 18 January 2017 to commence proceedings.
20 The defendants submitted that the period of delay of over three months was substantial, no adequate explanation for the delay had been given, the Court should not be objectively satisfied special circumstances exist, Mr Greco does not have an arguable case, and the public interest in finality of litigation weighed in favour of rejecting the application for extension of time.
21 From June 2016 Mr Greco was aware of the 60-day period and the forms necessary to commence Supreme Court proceedings. Mr Greco was given the names of three lawyers qualified to advise him in relation to an application to the Supreme Court to review a decision of the Magistrates' Court, and made an appointment to see one of those lawyers on 8 July 2016. It is not clear whether that appointment was kept. Mr Greco did not explain why he felt the need to go through the Law Institute of Victoria referral process again in November 2016, rather than to attend one of the lawyers to whom he had been referred earlier regarding the same issue.
22 Mr Greco stated that he attempted to file proceedings in late December 2016, but that some changes were required to the documentation for it to be accepted. By this time Mr Greco had been aware for some months of the time available and requirements for commencing the proceedings, had received referrals on two occasions to lawyers who might assist in relation to the proceedings, and had attempted to file documents commencing proceedings.
23 I accept that after returning to Australia on 18 January 2017 Mr Greco was faced with managing quite significant family issues. However, in my view those circumstances do not adequately explain the length of delay after 18 January 2017 before proceedings were commenced. The period of delay is considerable. I am not satisfied that Mr Greco's personal circumstances so consumed all of his available time and attention that he was unable to attend to the requirements for commencing these proceedings of which he was by then well aware.
24 Further, for the reasons I have set out below, the grounds on which Mr Greco relies for judicial review are without merit. He therefore does not suffer the prejudice of losing the opportunity to present an arguable case before the Court.
25 Finally, I observe that the enforcement orders which Mr Greco sought to revoke were made over three years ago, and that in the period since he has made three applications to have them revoked. In the circumstances of this case, the public interest in finality of litigation weighs against the extension of time for commencement of the proceedings being granted.
26 I will dismiss Mr Greco's application for an extension of time.
27 The grounds for review relied upon by Mr Greco in the originating motions are as follows:
Magistrate King sitting in the Magistrates [sic] Court in Melbourne heard an appeal on the 28 October 2016 and failed to take into consideration [the Charter]. In particular s6 (2)(b), s8(3), s24(1) and s38(1) of the Charter
The decision by the Magistrates [sic] Court not to revoke the alleged Infringements from the Infringements Court to the Magistrates [sic] Court, for a fair and Public hearing was a denial of procedural fairness and natural justice. This was contrary and repugnant to [the Charter], the International Covenant on Civil and Political Rights ('Covenant') and the Vienna Convention on the Law of Treaties ('Convention').
The Magistrates [sic] Court was NOT operating in a judicial capacity, but rather, in an administrative function when assessing the application for revocation from the so-called Infringements Court. The Magistrate was therefore a public official and bound by the Charter.
Denial of a fair hearing encroaches on the rule of law, procedural fairness and natural justice, inalienable human rights, international law and domestic law.
The Magistrates [sic] Court fell into jurisdictional error as the relevant considerations of the Charter were not taken into consideration, in particular the right to a fair hearing. Rather, the decision was incompatible with human rights and irrelevant considerations were given excessive weight to refuse the application.
28 In lengthy written submissions Mr Greco placed significant focus on the hearing before Judicial Registrar Bartlett. In relation to the procedural fairness and natural justice ground Mr Greco submitted:
(b) The administrative and 'highly automated' nature of the infringement process leading to the point of the application before Magistrate King emphasised the need for proper procedures to allow an individual such as Mr Greco a fair and impartial hearing.
(d) Because it does not have judicial powers the '...power to penalise is not vested in the infringements court...' and it was acting ultra vires in imposing any penalty.
The Melbourne Magistrates' Court was called upon to hear an application for revocation regarding the alleged infringements. Registrar Bartlett refused the application for revocation and denied the appellant the opportunity for a hearing to be scheduled. Registrar Bartlett was exercising an administrative function rather than judicial. Therefore, the appellant relied upon the legitimate expectation that Registrar Bartlett as a public authority would consider [the Charter], the International Covenant on Civil and Political Rights and our rule of law, [in] which the right to a hearing is imbedded as a fundamental right.
The appellant is seeking for these matters to be heard before a court of competent jurisdiction and the opportunity [to] defend the alleged offences.
29 Mr Greco noted that it was a fundamental requirement that a decision maker take into account relevant considerations, and disregard irrelevant considerations. He said that when Judicial Registrar Bartlett asked what steps he had taken when the infringement notices were first served on him he advised that he had corresponded with the relevant authorities about them. Mr Greco submitted that Judicial Registrar Bartlett's failure to ask to see this correspondence amounted to a failure to take into account a relevant consideration.
30 It appeared from the grounds listed in the originating motions and the written submissions which he filed, that the substance of Mr Greco's complaint was that the decisions of Judicial Registrar Bartlett and Magistrate King operated to deny him the opportunity to contest the infringement offences at a hearing in the Magistrates' Court. However, in oral submissions Mr Greco confirmed that this was not the case. Rather, he complained that Magistrate King did not conduct a fresh hearing of his application for revocation of the enforcement orders, but confined the review to the hearing before Judicial Registrar Bartlett. Mr Greco argued that this amounted to a failure to accord him procedural fairness because he had a legitimate expectation to be heard on the merits of the revocation application, which did not occur. Mr Greco submitted that Magistrate King fell into jurisdictional error by listening to and taking into account the substance of the hearing before Judicial Registrar Bartlett, and by failing to take into account the correspondence and documents which he had available to provide to Judicial Registrar Bartlett. Mr Greco submitted:
That correspondence would have given a bit more clarity as to what I did going back and the fact that he ignored that was a crucial part of my evidence.
31 Victoria Police responded to the originating motions and Mr Greco's written submissions as follows. First, insofar as Mr Greco's application for review amounted to a challenge to the decision of Judicial Registrar Bartlett, that was overtaken by the decision on review by Magistrate King. Mr Greco had not identified jurisdictional error by Magistrate King of the kind explained by the High Court in Craig v South Australia[9] (Craig). Second, Mr Greco's complaint that he should have been given an opportunity to contest the infringement offences in court amounted to nothing more than an impermissible attempt to engage in a merits review. Third, there was nothing in the material to suggest Magistrate King committed any jurisdictional error. The application for review was determined by Magistrate King in accordance with the statutory framework provided by r 16 of the Judicial Registrars Rules.
32 Fourth, Mr Greco's proposition that Judicial Registrar Bartlett denied him procedural fairness cannot be sustained on the evidence. A transcript of the hearing reveals that Judicial Registrar Bartlett considered the various arguments advanced by Mr Greco. It is not apparent that the correspondence and documents referred to by Mr Greco were in any way critical to the task at hand. Whilst it might be said that Judicial Registrar Bartlett was required to enquire into the documents to which Mr Greco referred, a failure to do so will only amount to jurisdictional error in 'rare or exceptional circumstances'.[10]
33 Fifth, any submissions by Mr Greco that the scheme of the Act denied him procedural fairness cannot be sustained. Mr Greco had an earlier opportunity to refer the infringement offences to court for determination,[11] other opportunities to apply for revocation,[12] and the opportunity to apply for review of the refusal by Judicial Registrar Bartlett to revoke the enforcement orders. Sixth, even if it is correct that Judicial Registrar Bartlett was exercising an administrative rather than a judicial function, the right to a fair hearing was clearly considered by him and by Magistrate King.
34 In oral submissions Victoria Police reinforced that the requirements of procedural fairness in the hearing before Magistrate King were determined by the statutory scheme, which contemplated the application for review being dealt with 'on the papers'. Further, Magistrate King concluded that no satisfactory reason was given by Mr Greco to Judicial Registrar Bartlett that would provide grounds for allowing the application and referring each of the infringement offences to trial. Both Judicial Registrar Bartlett and Magistrate King were aware that Mr Greco proposed as a reason for failing to either pay the infringement penalty or make an election under s 16 of the Act that he was corresponding with the issuing authorities to the infringement notices and offences. The reasons of the Judicial Registrar and Magistrate are consistent with a conclusion that corresponding with the issuing authorities and inquiring as to the offences was not a satisfactory reason for granting the application to revoke the enforcement orders.
35 Melbourne City Council adopted the submissions made for Victoria Police.
An inferior court falls into jurisdictional error if it mistakenly asserts or denies the existence of jurisdiction or if it misapprehends or disregards the nature or limits of its functions or powers in a case where it correctly recognises that jurisdiction does exist. Such jurisdictional error can infect either a positive act or a refusal or failure to act. Since certiorari goes only to quash a decision or order, an inferior court will fall into jurisdictional error for the purposes of the writ where it makes an order or decision (including an order or decision to the effect that it lacks, or refuses to exercise, jurisdiction) which is based upon a mistaken assumption or denial of jurisdiction or a misconception or disregard of the nature or limits of jurisdiction.[13]
In Stefanovski v County Court of Victoria,[14] Gillard J considered the limited role of this Court in supervising the Magistrates' Court of Victoria:
37 For the following reasons I conclude that Mr Greco's application to this Court to review the decision of Magistrate King is without merit. First, it was within jurisdiction for Magistrate King to consider the hearing before Judicial Registrar Bartlett. Magistrate King was required by r 16(4)(a) of the Judicial Registrars Rules to consider Mr Greco's application and accompanying affidavit. The Judicial Registrars Rules do not otherwise restrict the matters to which Magistrate King could properly have regard when determining the application. The application by Mr Greco was 'for review of the hearing and determination of this proceeding constituted by [Judicial Registrar] Bartlett ...'. In large part, Mr Greco's complaint in the application was that he had not been accorded procedural fairness in the hearing before Judicial Registrar Bartlett. But by considering the hearing before Judicial Registrar Bartlett, Magistrate King was responding directly to the form and substance of the application to him by Mr Greco.
38 Second, I would not infer there was any failure on the part of Magistrate King to have regard to relevant considerations when determining Mr Greco's application. Mr Greco argued Magistrate King and Judicial Registrar Bartlett failed to have regard to his correspondence and telephone communications with enforcement agencies relating to the infringement notices. In his affidavit in support of the application to Magistrate King, Mr Greco gave substantial detail of his interaction with the enforcement agencies. It was clear Mr Greco relied on his interactions with enforcement agencies to explain his response to the infringement notices and to justify revocation of the enforcement orders. A submission in similar terms was made by Mr Greco to Judicial Registrar Bartlett. It should be remembered that the real thrust of the arguments for revocation of the enforcement orders made by Mr Greco to Judicial Registrar Bartlett and Magistrate King was that he had been denied the opportunity to contest the infringement offences in court. In that context, after having regard to the material Mr Greco placed before him and to the hearing before Judicial Registrar Bartlett, Magistrate King concluded Mr Greco had not been denied the opportunity to have the infringement offences heard in court, but by neglect had elected not to pursue that opportunity. Magistrate King held that no satisfactory reason was given by Mr Greco which would justify revocation of the enforcement orders and referral of the infringement offences for trial by court. There was nothing in the decisions of Judicial Registrar Bartlett or Magistrate King to suggest that either doubted Mr Greco's evidence in relation to his correspondence and interactions with the enforcement agencies. Rather, Magistrate King's reasons are consistent with him concluding that corresponding with the enforcement agencies was not a satisfactory reason to explain the failure to make an election pursuant to s 16 of the Act, and did not justify revocation of the enforcement orders.
39 Third, it was a matter for Magistrate King to identify the relevant issues in the application before him, to formulate questions to be answered on the application, and to determine what evidence was relevant to those questions. If there was a mistake by Magistrate King in failing to call for and to consider the correspondence in respect of which Mr Greco gave evidence, I would regard that as a failure within jurisdiction which does not give rise to jurisdictional error.[15]
40 Fourth, there is no merit in Mr Greco's argument that he was denied procedural fairness. Mr Greco took the opportunity to provide affidavit evidence and written submissions in support of his application to Magistrate King. Rule 16 of the Judicial Registrars Rules contemplates as the default position determination of an application for review by the court without a hearing. Whether or not procedural fairness was accorded to Mr Greco must be determined by reference to the provisions which governed the application he was making.[16] Mr Greco's application for review was determined in accordance with r 16, and there was no failure by Magistrate King to accord him procedural fairness. I agree with the submissions by Victoria Police that argument advanced by Mr Greco in written (but not oral) submissions that he was entitled as of right to the opportunity to contest the infringement offences in court, amounts to nothing more than an attempt to have this Court engage in a merits review. Further, I accept the submission of Victoria Police that, insofar as Mr Greco seeks to impugn the determination of Judicial Registrar Bartlett on the basis he was denied procedural fairness, such a submission cannot be sustained on the evidence. This conclusion applies whether the Judicial Registrar was exercising an administrative or judicial function. It is apparent from the transcript of that hearing that Judicial Registrar Bartlett heard Mr Greco's submissions, gave him an opportunity to make reply submissions, and took account of the points made by Mr Greco.
41 In his written submissions Mr Greco argues, relying on the common law, the Charter and various international treaties, that he was denied the right to a fair hearing. Undoubtedly Mr Greco was entitled to a fair hearing of the applications made by him. However, as Magistrate King observed, Mr Greco did not elect to take the opportunity to have the infringement offences heard in court. I have concluded Mr Greco was accorded procedural fairness by Magistrate King and Judicial Registrar Bartlett on the applications before them.
42 Had I granted Mr Greco's application to extend time to commence this proceeding, I would, for the reasons above, have dismissed his application to review the decision of Magistrate King.
43 Mr Greco's application to extend time to commence this proceeding is refused. The proceeding will be dismissed. I will hear from the parties as to consequential orders.
[1] The Act has since been amended. In these reasons I refer to pre-amendment provisions of the Act as they apply to this proceeding.
[2] Infringements Act 2006 (Vic), s 54.
[7] [2014] VSC 497, (citations omitted).
[8] Kioa v West [1985] HCA 81; [1985] 159 CLR 550, 582 (Mason J); Commissioner of Police v Tanos [1958] HCA 6; (1958) 98 CLR 383.
[10] Minister for Immigration and Citizenship v Le [2007] FCA 1318; [2007] 164 FCR 151 at 172 [60] (Kenny J); SZMJM v Minister for Immigration and Citizenship [2010] FCA 309 at [30] (Bennett J).
[11] Infringements Act 2006 (Vic), s 16.
[13] Craig v South Australia [1995] 184 CLR 177.
[15] Craig v South Australia [1995] HCA 58; [1995] 184 CLR 163, 180.
[16] SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs [2006] HCA 63; (2006) 228 CLR 152, 26.
Plaintiff
MELBOURNE CITY COUNCIL & ORS
PRACTICE AND PROCEDURE - Judicial Review - Order 56 of the Supreme Court (General Civil Procedure) Rules 2005 - Extension of time within which to commence proceeding - Special circumstances required - No special circumstances disclosed - No arguable case for judicial review - Lazarevic v Victoria Police [2014] VSC 479 - Craig v South Australia [1995] HCA 58; [1995] 184 CLR 163 - Application dismissed.
(1958) 98 CLR 383
(2006) 228 CLR 152