Plaintiff v Defendants

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 - Application dismissed.

1 In early 2014, Michael and Melinda Gwin together with their children moved to live in a house in Altona. The plaintiff, Mr Richards, lived in a house in the same street, close to the Gwins. Relations between the Gwins and Mr Richards quickly soured. The Gwins complained, initially to Mr Richards himself, then to Victoria Police and the local council, that Mr Richards played music at an excessive volume. In January 2015, Mr Richards was charged with a number of counts of emitting unreasonable noise from his residence in breach of s 48A of the Environment Protection Act 1970 (EP Act). At a hearing before Magistrate Doherty, which Mr Richards did not attend, he was convicted on four charges of breaching s 48A(3) of the EP Act. Mr Richards now applies pursuant to O 56 of the Supreme Court (General Civil Procedure) Rules 2015 (the Rules) to review the order made by Magistrate Doherty. The grounds for review upon which Mr Richards relied are reproduced at paragraph 17.

2 This proceeding was commenced more than 60 days after Magistrate Doherty's order. Mr Richards made application to extend the time to commence proceedings.

3 The second defendant opposed the application for extension of time within which to commence proceedings, and submitted Mr Richards' grounds for review were without merit.

4 During an interaction between them in December 2014, Mr Richards allegedly punched Mr Gwin to the jaw. Mr Richards was subsequently convicted of assault in the Magistrates' Court. In an associated proceeding in this Court, heard together with this matter, Mr Richards applied to review the assault conviction. These reasons should be read together with the judgment in that proceeding.[1]

5 In evidence given at the hearing before Magistrate Doherty, Mrs Gwin said that not long after moving to Altona in March 2014 she noticed loud thumping music at night. Mrs Gwin identified the music was coming from Mr Richards' house, and she placed an anonymous note in his letterbox following which, for about two weeks, she did not hear music. The music then recommenced, and was played three or four times a week up to 12 o'clock at night. She contacted police and the local council, and it was recommended that she keep a noise log, which she did.

6 Mr Gwin gave similar evidence. He said before he called the police he knocked on Mr Richards' door and asked that the music be turned down. He described the effect of the music as keeping his family up at night, they could not watch TV in their own home, the music felt like a vibration through your body, and his children could not study.

7 The informant, Sergeant Henderson, gave evidence that Mrs Gwin's noise complaint was passed on to him for investigation. He asked Mr Richards asking to moderate the noise. He subsequently received further complaints, and a divisional van attended. Sergeant Henderson said the dates of the charges related to the logs kept by Mrs Gwin.

8 Mr Richards was charged with 16 counts of emission of unreasonable noise from a residence in breach of s 48A(3) of the EP Act. Those charges were listed for a contested hearing before Magistrate Doherty on 30 November 2016 on an estimate of two days. Mr Richards did not attend the hearing. Magistrate Doherty heard evidence from the Gwins and Sergeant Henderson, and documents, including the logs kept by Mrs Gwin, were tendered. A number of charges were withdrawn because of duplication of dates covered. His Honour found the remaining four charges proven, imposed a monetary penalty, and ordered Mr Richards to pay specified costs.

9 The order of Magistrate Doherty convicting Mr Richards of the four unreasonable noise charges was made on 30 November 2016. Allowing for the vacation period from 24 December, Mr Richards had until 15 February 2017 to commence the proceeding.[2] The originating motion commencing this proceeding was filed on 27 March 2017, approximately six weeks out of time.

10 Mr Richards said his delay in commencing this proceeding is explained by the difficulties he faces as a litigant in person, compounded by serious injuries to his spine, which cause chronic pain requiring regular use of strong painkillers. In two medical reports tendered by Mr Richards, his treating general practitioner, Dr Baro, said that in a 1996 car accident Mr Richards suffered injury to his head, neck, temporomandibular joints and other soft tissue injuries, with complications including pain, sleep disturbance, anxiety, depressive episodes and problems with memory and concentration. Mr Richards said that the state of his health made it more difficult for him to respond in a timely fashion to the requirements in the various proceedings in which he was involved. He argued the merits of his application for review of the decision of Magistrate Doherty were strongly in his favour. He submitted that in all the circumstances it was in the interests of justice that time to commence the proceeding be extended.[3]

11 The second defendant submitted Mr Richards' application to extend time to commence the proceeding should be refused because he had not demonstrated 'special circumstances' justifying an extension of time, the grounds for review and substantive submissions upon which he relies do not demonstrate an arguable case for judicial review, and that finality in litigation is of utmost importance to the integrity of the criminal justice system and weighed in favour of his application being refused.

12 The considerations relevant to an application to extend time pursuant to r 56.02(3) were summarised by Derham AsJ in Lazarevic v Victoria Police.[4] I adopt that summary.

13 Mr Richards was aware of the general nature of an O 56 proceeding, and of the time frame for commencing proceedings, from December 2015 at the time the order was made by Magistrate Lamble convicting Mr Richards of assaulting Mr Gwin.[5] I have concluded in the associated proceeding that the reasons proffered by Mr Richards do not satisfactorily explain the delay of over 15 months from the date of the Magistrates' Court order convicting him of assault until commencement of that proceeding.[6]

14 I accept the evidence of Dr Baro and Mr Richards that he suffers from injuries causing pain, sleep disruption, psychological symptoms and problems with memory and concentration. Those health conditions date from a motor vehicle accident in 1996, and are chronic. Mr Richards has shown himself able to take substantive steps in the various legal proceedings in which he has been involved, including representing himself in contested hearings in the Magistrates' Court and County Court, and before me on this application, and preparing necessary documents in this and the associated proceeding. Other than to say that the medical issues which he faces make it more difficult for him to respond to the requirements of legal proceedings, Mr Richards has not explained how those chronic conditions prevented him from commencing this proceeding within the time provided by r 56.02(1). I am not satisfied the medical conditions from which he suffers are a satisfactory explanation for the delay. For reasons which I give later in this judgment, I conclude Mr Richards' grounds for review are without merit. Therefore, there is no point in extending the time to commence the proceeding. Public interest in the finality of litigation weighs in favour of the application to extend time to commence this proceeding being refused.

15 I refuse Mr Richards' application to extend time to commence this proceeding.

16 In the originating motion Mr Richards listed the following grounds for review of the order made by Magistrate Doherty:

Grounds A - 1st Defendant

(1). The conduct of the hearing was prejudicial, and unfair.

(2). The magistrate accepted, contradictive, opinions, conjecture, irrelevant, and unreliable, "evidence".

(3). The guilt, conviction, and sentence, is unsafe.

(4). The informant's evidence given under oath was contradictive to the informants evidence given on the 28th of July 2015 in the County Court.

(5). The information given on oath by Melinda and Michael Gwin was at least unreliable.

(6). The informants intentions while giving evidence was to set out to defame the accused, making opinions, conjecture, and irrelevant statements, in relation to the day the informant spoke to the accused or at any other time of his involvement and was prejudicial.

(7). The magistrate failed to consider whether there was a "prima fascia" [sic] case to answer.

(8). The magistrate failed to take into account "probable means of knowledge" or "alternatives" based on the facts due to the plaintiff being absent from the hearing or not having legal representation.

(9). There was no expert evidence from an Acoustic engineer or Acoustic Consultant to determine what is needed to be determined in a case like this, in particular to support what the complainants are claiming, to support the complainants and informants, credit, judgment, honesty and mental state.

(10). The prosecution had evidence in there [sic] possession dispelling a "prima fascia" [sic] case to answer, that the prosecution did not have "reasonable grounds" to prosecute, subsequently the charges should have been dropped.

(11). The prosecution had evidence in there [sic] possession that the informant did not arrest the plaintiff to question him, subsequently the charges should have been dropped.

Grounds B - 2nd Defendant

(12). The plaintiff has been framed in this matter by the complainants Melinda and Michael Gwin, and by the informant Henderson.

(13). The informant Henderson investigation or conduct, if any, was prejudicial, malicious, and flawed.

(14). The informant Henderson did not arrest the plaintiff to be in "custody" to question the plaintiff and as a result the informant did not act in the "execution of duty". The charges should have been dropped.

(15). The basis for the charges laid by the informant Henderson are malicious, prejudicial, and flawed.

17 Many of the grounds relied upon are in effect an attempt by Mr Richards to engage in an impermissible merits review. Mr Richards did not pursue most of these grounds during the hearing, and relied only on the following:

(a) There was a lack of procedural fairness in the manner in which the unreasonable noise hearing was conducted.

(b) The reasons of Magistrate Doherty were inadequate, in particular because it was unclear what documents had been accepted into evidence during the hearing.

(c) The prosecution failed to produce to the Court evidence in its possession which was exculpatory, and as a result the finding that the charges were proven was unsafe, and the Magistrate's court order should be quashed.

19 Mr Richards submitted Magistrate Doherty simply accepted the evidence given by the Gwins without challenge, undertook no proper investigation of the prosecution case, and failed to 'ask the necessary questions ... to get the full picture of what was going on'. He submitted that his Honour was under a duty to test the evidence given in his absence to ensure a fair and just hearing. Mr Richards submitted that an apprehension of bias arose by reason of the manner in which his Honour conducted the hearing and reached conclusions.

20 In an affidavit filed in support of the application for review, Mr Richards complained there had been no acoustic testing by the local council or the Environment Protection Authority in relation to noise emitted from his residence, and no expert evidence was led at the hearing before Magistrate Doherty. Mr Richards said that despite the informant being aware of it, the State Environment Protection Policy made under s 46 of the EP Act was not referred to by Magistrate Doherty. Mr Richards said the magistrate understood that he lived two houses away from the Gwins and that neighbour Kirsty O'Brien lived in the house between the two, yet she was not called by the prosecution to give evidence, and his Honour made no enquiry about her. Mr Richards argued Ms O'Brien's absence was particularly relevant because she was called by him as a witness and had given evidence during the hearing of an appeal in respect of the interim intervention order on 27 July 2015, and he had provided a transcript of her evidence to the prosecution.

(3) A person who emits or causes or suffers to be emitted unreasonable noise from any residential premises is guilty of an offence.

(4) For the purposes of subsection (3), noise is to be taken to be unreasonable if it is unreasonable having regard to -

(a) its volume, intensity or duration; and

(b) the time, place and other circumstances in which it is emitted.

(5) Without limiting the generality of subsection (3), any noise from a prescribed item which -

(a) is emitted from residential premises at any time which is prescribed as a prohibited time in respect of that prescribed item; and

(b) can be heard in a habitable room in any other residential premises, regardless of whether any door or window giving access to that room is open -

is deemed to be unreasonable noise unless it is emitted in the case of an emergency.

Mr Richards proceeded on a misunderstanding of the evidence necessary to prove the unreasonable noise offence, and did not identify any failure by Magistrate Doherty to accord procedural fairness.

22 The authorities recognise the need for a trial judge to strike a balance between providing advice and assistance to an unrepresented litigant without intervening to the extent that a reasonable observer might conclude a position of neutrality had not been maintained.[7] The unreasonable noise charges were listed for a two-day contested hearing before Magistrate Doherty. Mr Richards chose not to attend the hearing. He did not appear as a litigant in person, and there was no obligation on his Honour to take steps to address any imbalance in representation. I agree with the submission of the second defendant that Magistrate Doherty acted within jurisdiction in proceeding to hear and determine the unreasonable noise charges in the absence of Mr Richards, and accepting the evidence led.[8]

23 The case made by Mr Richards appears to be that there was inadequacy in the evidence led because there had been no acoustic testing, no expert evidence was given, the State Environment Protection Policy was not referred to and the offence was not established in accordance with that policy. However, the language of s 48A(3) demonstrates that none of these matters are required to establish the offence. The Gwins lived two doors away from Mr Richards. Mrs Gwin described the music played by Mr Richards as 'loud thumping bass that was coming through our house ... late at night'. Mr Gwin said the effect of the music was to keep his family up at night, to prevent them watching TV in their own home, and the music 'was like a vibration through your body'. In my view that was evidence upon which Magistrate Doherty could reach the conclusion that Mr Richards had caused unreasonable noise to be emitted from his premises.

24 Mr Richards is critical of the prosecutor for failing to call as witnesses Ms O'Brien, the neighbour who occupied the house between him and the Gwins, and his mother who resided with him. Mr Richards criticised Magistrate Doherty for failing to enquire as to the evidence which might have been given by Ms O'Brien. Mr Richards based this criticism on evidence given by Ms O'Brien and Mrs Richards during a contested interim intervention order appeal heard in the County Court in July 2015. I have read the transcript of that hearing. Ms O'Brien's evidence is certainly not exculpatory of Mr Richards. Ms O'Brien said that she did hear the music emanating from Mr Richards house while she was in her kitchen, and that it vibrated. She was asked by Magistrate Doherty what vibrates, and she said:

So whatever is sitting on my shelves vibrates in the kitchen. So, you know, I'll be standing at my sink and, you know, the tins and that will be vibrating on the shelves.

Later Magistrate Doherty asked what sort of music caused the vibration. Ms O'Brien said she had no idea, but that she could only hear 'the bass or the sub', which she described as just purely thumping. Had Mrs O'Brien been called, it is likely her evidence would have strengthened the prosecution's case.

25 If Mr Richards wanted Ms O'Brien and Mrs Richards to give evidence he could have attended the Magistrate Court hearing and made that case. Magistrate Doherty was not obliged to enquire into evidence which Ms O'Brien and Mrs Richards may give.

26 I conclude this ground for review is without merit.

There's definitely an argument there that the reasons are inadequate because the material that was relied upon by the Gwins, like their log-sheeting it's not clear whether it was the same log-sheets that I've exhibited or whether it was something else. You would assume it would be the same log-sheets as what they've always been relying upon or complaining about but there's nothing clear as to what they were relying upon and there was no exhibit given to - any of the material they relied upon by the magistrate.

28 In evidence before Magistrate Doherty, Mrs Gwin said a council employee recommended she keep a noise log, which she did. She later identified a document which she said was sent to the Gwins by the council in relation to noise emission. That document was tendered. The informant, Sergeant Henderson, was asked about the dates of the various charges and he said:

So those dates relate to the logs kept by Melinda.

After hearing the evidence from the Gwins and Sergeant Henderson, and receiving tendered documents including the log kept by Mrs Gwin, Magistrate Doherty found the charges proven. The logs produced by Mr Richards in this proceeding cover only the first and second charges. I am not satisfied they were the only logs completed by Mrs Gwin and tendered in the hearing before Magistrate Doherty. The logs kept by Mrs Gwin were tendered. The dates of the charges reflected those logs. Having heard the evidence and read the logs, Magistrate Doherty convicted Mr Richards on the four charges. In my view the reasons of the magistrate are not inadequate.

30 There is no evidence that Sergeant Henderson acted maliciously or improperly by instituting or continuing the unreasonable noise charges. There was no failure by Sergeant Henderson to bring exculpatory evidence to the attention of the Court. Evidence from Ms O'Brien was likely to support the prosecution's case. If Mr Richards wished to test what he perceived as shortcomings in the prosecution's case against him he could have attended the Magistrate Court hearing, called witnesses, cross-examined witnesses and made submissions. Having elected not to do so, Mr Richards cannot now complain that matters he considers relevant were not brought to Magistrate Doherty's attention.

31 In oral submissions Mr Richards appeared not to pursue grounds 12 to 15 inclusive, which were recorded in the Originating Motion. I conclude these grounds are without merit.

32 I have rejected Mr Richards' application to extend time to bring this proceeding, and on that basis dismiss the proceeding. For the reasons given above I have concluded that the application for review is without merit. I will order that the proceedings be dismissed. I will hear from the parties as to any consequential orders.

[1] Richards v Victorian Magistrates' Court (No 1) [2018] VSC 225 (9 May 2018).

[2] Supreme Court (General Civil Procedure Rules) 2015 rr 3.04(1) and 56.02(1).

[3] Prencip v Nissille [1999] VSC 137 (20 April 1999) [13] ('Prencip'); North v Homolka [2014] VSC 478 (2 October 2014) [21].

[4] [2014] VSC 497 (3 October 2014) [34]-[36].

[5] Richards v Victorian Magistrates' Court (No 1) [2018] VSC 226 [17]-[18].

[7] Downes & Anor v Maxwell Richard Rhys & Co Pty Ltd (in liq) [2014] VSCA 193 (29 August 2014) [23]-[24].

[8] Criminal Procedure Act 2009 pt 3.3 s 80.