Plaintiff v First Defendant

2 In his Originating Motion and before me Mr Goldberg argued that there was no evidence before the Judge that could underpin the finding against him, and therefore the decision was such that no reasonable Court could have reached such a conclusion;[1] he also contended that he was denied natural justice in the hearing of the appeal.

3 I have determined that Mr Goldberg was given a fair hearing in the County Court and that her Honour's decision was patently open to her on the evidence adduced. In other words, there was no error which could afford Mr Goldberg the relief he seeks. Indeed I regard the proceeding as ill conceived.

4 The first defendant, Senior Constable Laughlin was on 5 May 2005 stationed in Centre Road, Bentleigh East. He was operating a hand-held speed measuring device and detected Mr Goldberg's vehicle travelling at 63 kilometres per hour in a 40 kilometre per hour zone (a school area). Mr Goldberg was then charged with driving at a speed over the speed limit.

5 On 3 April 2006 after a contested hearing in the Magistrate's Court, Mr Goldberg was convicted and fined $275 with a stay to 1 May 2006[2].

6 On 3 April 2006 Mr Goldberg lodged a Notice of Appeal to the County Court. That appeal was heard in the County Court on 17 October 2006 before her Honour Judge Wilmoth. Her Honour found the charge proved, set aside the original Order and convicted Mr Goldberg, who was again fined $275 with a stay of one month[3].

7 In all likelihood because of the delay in bringing on the application there is no transcript of the hearing before Judge Wilmoth. However, both Mr Goldberg and Mr Bliss of counsel who prosecuted the appeal have filed affidavits detailing their recollection of the events before her Honour. More importantly, her Honour kept extensive and readily comprehensible notes of both the evidence and her reasons. Unless the material contained in the affidavits is consistent and needs to be used to fill any obvious gap, I have relied upon her Honour's notes.

8 Mr Laughlin was the only witness called by the prosecution. He was cross-examined by Mr Goldberg. Mr Goldberg then gave evidence and was cross-examined by Mr Bliss. At the conclusion of the hearing both Mr Bliss and Mr Goldberg made submissions.

9 Her Honour retired for approximately 15 minutes and her notes record the follow reasons[4]:

This is an appeal against conviction and sentence, brought by Mr Goldberg. He was convicted of one charge of speeding and was fined $275. I set aside that order.

S/C Laughlin gave evidence that he is authorised to operate a Laser Speed Measuring device, and the device used had been tested as operating correctly. It measured Mr Goldberg's speed on the day in question at 65 kph. With a speed of 63 kph being alleged against him. This was in a 40 kph school zone, in Centre Rd, Bentleigh East. Mr Laughlin gave evidence, which I accept, that he visually estimated the speed of Mr Goldberg's car at 55-60 kph and aimed the device at the car, maintaining it for 3 - 4 seconds and obtaining a digital display of 65 kph.

Mr Goldberg gave evidence that he was merely following the cars ahead of him and that he had not checked his speedo. He said he was the only driver pulled over, and he alleged that he had had an altercation with Senior Constable Laughlin 3 or 4 years previously; and he produced Mr Laughlin's business card.

Mr Laughlin could not recall any such previous meeting with Mr Goldberg, and said he often gives his card out to people.

Mr Goldberg submitted that I should have a reasonable doubt as to the evidence against him. Mr Bliss drew my attention to s. 79of the Road Safety Act which states: "If in any criminal proceeding ...". [Her Honour then read s 79 of the Road Safety Act]

Here, there is no evidence to the contrary, and no reason for me to doubt the evidence of Mr Laughlin and the results of the use of the speed measuring device.

Accordingly, I find the charge proved and I shall proceed to record a conviction and fine in due course, but I shall hear from Mr Goldberg first. $275. Stay 1 month.

10 The originating motion on behalf of Mr Goldberg was filed on 24 October 2006. An appearance was entered by Mr Laughlin on 31 October 2006. On 17 November 2006 a Notice of Appearance was filed on behalf of the Second Defendant, the County Court. By letter the same day its solicitor advised that it did not intend to take an active role in the proceeding and would abide the decision of the Court.[5] Nothing was done in relation to the proceeding for two years until Mr Laughlin sought to have the proceeding struck out for want of prosecution. The Listing Master acceded to the application but on appeal a judge of this Court dismissed Mr Laughlin's application.

11 Section 83 of the Magistrates' Court Act ("MCA") provides a right of appeal to the County Court upon a person being sentenced in the Magistrates' Court. Under s 85 of the MCA an appeal is conducted as a re-hearing so "the successful party at first instance derives no advantage from the victory and must win the case a second time"[6]

12 As explained in the High Court's seminal decision of Craig v South Australia[7], a writ of certiorari is not an appellate procedure enabling a general review of the impugned Order or decision of the inferior court; nor does it permit the substitution of an Order which a superior court thinks should have been made.

"Where the writ 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'"[8].

13 There was no issue here concerning jurisdictional error. Once jurisdiction was accepted then as was said by the Full Court in DPP v His Honour Judge Fricke[9]:

"His Honour, having had jurisdiction to engage in the re-hearing had, as it has sometimes been starkly put, as much jurisdiction to decide the case wrongly as he had to decide it correctly. To adapt the language in Anisminic Ltd v Foreign Compensation Commission his Honour was not making a decision outside his area; he was simply making a wrong decision within his area. There being no appeal from his decision, its correctness or otherwise is not to the point in determining whether he is amenable to judicial review"[10].

14 Mr Goldberg was entitled, in seeking certiorari, to contend that he had been denied natural justice. [11] Certiorari will run if an inferior court has not afforded a litigant procedural fairness. As I have said there was no argument by Mr Goldberg that the County Court lacked jurisdiction or had fallen into jurisdictional error as explained in Craig.[12] Therefore the extent of Mr Goldberg's application is limited. As I see it those limitations raise two discreet issues. I raised both during the course of the hearing.

15 First it is not settled that Wednesbury unreasonableness can be said, in the case of judicial review of the decision of an inferior court (and perhaps as a general ground of judicial review), to constitute an error relevant to jurisdiction or, perhaps, found a separate ground for obtaining certiorari.[13] Secondly Mr Goldberg may, in his attack on her Honour's orders, be limited to the Court record, that is the formal record of the Court Order, and excluded from relying upon the reasons or the evidence adduced at the hearing. [14]

16 Fortunately, I do not have to resolve either of these issues. Mr Larkins, who appeared on behalf of Mr Laughlin, accepted for the purpose of this application only that the concept of Wednesbury unreasonableness was applicable to the decision of the County Court judge and was content to have the reasons of her Honour and the evidence as recorded by her scrutinised in the course of the hearing.

17 Mr Goldberg has not established that there was any denial of natural justice in the course of the hearing before the County Court Judge. At times he categorised certain findings of her Honour as constituting a denial of natural justice. For instance he criticised the failure of the prosecution to call a particular witness as constituting a denial of natural justice.[15] Mr Goldberg was afforded a fair hearing. He had the opportunity to test the case for the prosecution, which he did. He had the opportunity to give evidence, of which he availed himself. He had the opportunity to make submissions relevant to the strengths and weaknesses of the prosecution case - which he did. Her Honour's reasons should have made it clear to him why the prosecution case was accepted by her. There was no breach of procedural fairness.

18 Nor is there is anything in her Honour's reasons which indicated that she reached a conclusion which no reasonable judge could have reached. She had, as her reasons demonstrate, the evidence of Mr Laughlin as to the operation of the radar device. Mr Goldberg's denial that he was not travelling at the speed recorded was considered by her and rejected. In this context she may well have regarded Mr Goldberg's concession that he had not checked his speedometer as being relevant to any estimate of his own speed. In the result, her Honour's reasons, in the context of the contest before her, have not been demonstrated to be unreasonable in the sense explained in Wednesbury.

19 There is one other matter I need to mention. As I pointed out to Mr Goldberg in the course of the hearing, this was not the occasion to relitigate the factual contest as it emerged before her Honour. Nonetheless I permitted Mr Goldberg, in the context of his argument concerning the asserted unreasonableness of her Honour's conclusion, to address individual aspects of the evidence before her Honour. These included allegations as to the motivation behind the prosecution: that the prosecution was orchestrated by ASIO and that Mr Laughlin was engaged in harassment as Mr Goldberg claimed that Mr Laughlin had apprehended him on a previous occasion. As well there was considerable dispute about particular factual matters raised before her Honour such as the location of speed signs, the nature of the flow of traffic, the position of Mr Laughlin on the roadway, the failure of Mr Laughlin to show Mr Goldberg the speed gun reading, the lack of independent witnesses, the failure by Mr Laughlin to stop any other car at the time that Mr Goldberg's car was stopped, the lack of illuminating signs in the area, the lack of provision of information as to when schools opened and closed in the area. All these matters, ultimately, are irrelevant to the conclusion that I have reached. This is not the place for a canvassing of the pros and cons of the decision reached by her Honour who heard all the evidence, and reached a conclusion well open to her.

20 The originating motion should be dismissed with costs.

[1] Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1947] EWCA Civ 1; [1948] 1 KB 223, 230.

[2] Exhibit AMC-H to the affidavit of Adrian Castle sworn 3 December 2008 ("the Castle affidavit").

[3] Exhibit AMC-J to the Castle affidavit.

[4] Exhibit AMC-L to the Castle affidavit.

[5] Consistent with the principles enunciated in R v Australian Broadcasting Tribunal, Ex-parte Hardiman & Ors [1980] HCA 13; (1980) 144 CLR 13, 35

[6] Director of Public Prosecutions v Shoan [2007] VSCA 220 [20].

[7] [1995] HCA 58; (1995) 184 CLR 163. See also SFZDE v Minister of Immigration and Citizenship & Anor [2007] HCA 35; (2007) 232 CLR 189 [17].

[8] [1995] HCA 58; (1995) 184 CLR 163, 175-176.

[9] [1993] VicRp 27; [1993] 1 VR 369, 376

[10] See also RSL v Liquor Licensing Commission [1999] VSCA 37; (1999) 2 VR 203, [16] - [20].

[11] Kioa v West [1985] HCA 81; (1985) 159 CLR 550, 581 - 583, Refugee Review Tribunal & Anor Ex-parte Aala [2000] HCA 57; (2000) 204 CLR 82, 100, 121.

[12] [1995] HCA 58; (1995) 184 CLR 163, 176 - 177.

[13] Eshetu v Minister for Immigration and Ethnic Affairs (1999) 197 CLR 611 [124] - [126], Upham v The Grand Hotel [1999] SASC 414; (1999) 74 SASR 557 [159] [160] - [169].

[14] Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163 182; But compare Neill v County Court of Victoria [2003] VSC 328, in which Redlich J, at [7] said it was "beyond argument" that the Court's records included the reasons of the Court.

[15] The relevant witness was a Senior Constable Bell and her Honour's notes make it clear that Mr Goldberg was asked by Mr Bliss whether Mr Bell was required and that he responded in the negative.