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[2013] VSC 224
General information, not legal advice.
Supreme Court of Victoria
2013-05-03
DERHAM AsJ
Original judgment source is linked above.
This matter was listed for special mention this morning as I understood it, to determine the validity of a number of witness summonses that have been issued by the defence. Mr. Billings for the accused now makes application that I disqualify myself from hearing this case on the basis of bias. I have heard no evidence and know nothing about what this case involves, save for the fact that I am told a similar case has come before me for special mention recently and orders were made regarding subpoenas or witness summonses. As I understand it, the accused in this case has issued 15 witness summonses against Vic Roads staff, including the instructing solicitor in this prosecution, compelling those witnesses to attend Court on a special mention date. And again, as I understand it, the summonses were returnable today 15 March 2013. On 4 March 2013 Vic Roads wrote to the Court stating it intended to make application to have the subpoenas overturned and requesting the Court extend the time for compliance with summons to 22 March 2013 in order to avoid the 15 witnesses having to attend Court, pending the decision as to whether the summonses should be set aside or not. I note that letter was copied to the accused care of its lawyers. I acceded to the request in chambers on the basis that it was reasonable and sensible and would not prejudice any party. I noted the special mention on 15 March was only booked in for a half day and I considered the argument and decision relating to the validity of the subpoenas would take at least all that time. In those circumstances, it did not seem to be in the interest of justice or to assist the effective, prompt and economical determination of the matter to have 15 witnesses waiting around at Court on 15 March. I note the defence were apparently copied into all correspondence and could have listed the matter for special mention at any time to raise its concerns. The return of subpoenas, which are Court orders, is an administrative issue involving listings and the efficient use of Court time. The Court routinely fixes matters for special mention and on occasion does so on an ex parte basis as part of modern case management. Turning to the application, a magistrate must not hear or continue to hear a case if in all the circumstances the parties or the public might entertain a reasonable apprehension that the magistrate may not bring an impartial or unprejudiced mind to the resolution of the questions for determination. The test is applied from the standpoint of a fair minded and reasonable observer who was acquainted with the relevant circumstances. Application of the principle requires two steps, first the identification of what is said might lead to a judge or magistrate to decide a case other than on its legal and factual merits and second the articulation of a logical connection between that matter and the feared deviation from the course of deciding the case on its merits. In my view neither of those steps are satisfied. Referring to the High Court Authority of British and American Tobacco referred to by counsel for the prosecution, when suspected pre judgement of an issue is relied upon to ground the disqualification of the decision maker. What must be firmly established is a reasonable fear that the decision maker's mind is so prejudiced in favour of a conclusion already formed, that he or she will not alter that conclusion irrespective of the evidence or arguments presented to him or her. The requirement that an apprehension of bias based on judicial conduct be firmly established is consistent with the most recent decisions of this Court, that being the High Court and gives content to the requirement that an apprehension of bias in that class of case be reasonable. I cannot and have not formed any conclusions. I essentially know nothing about what this case involves. There is no basis for a fair minded observer to conclude that I have favoured any conclusion. The application that I disqualify myself is refused.
Reasons for setting aside Witness Summonses directed to VicRoads personel
Today is the return of 14 subpoenas or witness summonses issued against the staff of VicRoads. The summonses are very broad, the summonses each order a witness 'attend to give evidence and produce at the hearing any and all correspondence, including, but not limited to letters, memorandums, emails, facsimiles, telephone records, in relation to the following tow truck licenses.' And then I think seven tow truck licenses are listed, 'passing between yourself and (a) any and all employees of Victoria Police, and/or,' a further 18 individuals. Paragraph 2 then seeks 'any an all correspondence including, but not limited to letters, advices, memorandums, emails, facsimiles, telephone records, notes, and the like.'
VicRoads now makes application to have the summonses set aside on the basis of relevance and lacking a legitimate forensic purpose. The accused is represented by Mr Billings, who advises he will not make any submissions in opposition to the application. The accused is charged with one count, namely 'the corporate accused on 1 August 2012 at St Albans, being the holder of a tow truck license, did fail to comply with a condition to which the license was subject. Particulars. The corporate accused on 1 August 2012 did fail to comply with regular tow truck license condition 2(a) of regular tow truck license number TOW131, by that tow truck, (a) attending a road accident scene within the controlled area for the purpose of lifting and carrying or lifting and towing a damaged or disabled motor vehicle. (b) Lifting and carrying or lifting and towing a damaged or disabled motor vehicle, from a road accident scene within the controlled area.'
I accept the prosecution's submission that the issues of fact and law to be determined are these: (1) Did Western Truck Towing tow truck number TOW131 on 1 August 2012, (a) attend a road accident scene within a controlled area for the purpose of lifting and carrying, or lifting and towing a damaged or disabled motor vehicle, (b) tow a damaged or disabled motor vehicle from the road scene. (2) If yes to (1), did this constitute a breach of condition 2(a) on Western Truck Towing license for TOW131. (3) If yes to (2), were the conditions validly imposed under section 25 subsection 1 of the Accident Towing Services Act 2007.
In the Commissioner of the Australian Federal Police v Magistrates Court of Victoria and Ors, [2011] VSC 3, Justice Forest enunciated principles relevant to the production of the documents by a witness pursuant to a subpoena. I think it was at paragraph [28]. 'The following principles apply in determining whether a party is entitled to access documents the subject of a subpoena. (a) It is necessary for the party at whose request the witness summons was issued to identify expressly and precisely the legitimate forensic purpose for which access to the documents is sought. (b) The identification of such legitimate forensic purpose is to be considered by the court without inspecting the document sought to be produced. (c) The applicant for the witness summons must also satisfy the court that it is on the cards, or that there is a reasonable possibility that the document sought under the subpoena will materially assist the defence. (d) A fishing expedition is not a legitimate forensic purpose, and will not be permitted. (e) The relevance of a document to the proceeding alone will not substantiate an assertion of legitimate forensic purpose. There is no legitimate forensic purpose if the party is seeking to obtain documents to see whether they may be of relevance or of assistance in his or her defence. (f) A mere assertion of bad faith by an applicant, or that somebody might be found demonstrating bad faith, is not enough, the criteria set out in (c) must be satisfied. (g) In criminal proceedings a more liberal view is taken by a court in respect of the application of the test, special weight is to be given to the fact that the documents may assist the defence of the accused. (h) Where a party fails to demonstrate a legitimate forensic purpose, the court should refuse access to the documents and set aside the witness summonses.' The accused has not identified expressly and precisely the legitimate forensic purpose for the summonses issued. Indeed it has failed to demonstrate a legitimate forensic purpose at all. In these circumstances the witness summonses issued to the following people are set aside, Katherine Navarro, Lindy Pascoe, Don Leone, Gary Liddle, Richard Bell, George Mitrov, Nick Asenzo, Rodney Mather, Nial Finegan, Peter Irvin, Murray Michael Lavale, Alan Ferriere, Darrell Gascoyne, Marcus Nash, and Scott Douglas. Is there anything further?
Reasons for setting aside Witness Summonses directed to non-VicRoads personel
After the last ruling that I made a few minutes ago, the prosecution seek to have a further three summons set aside. The respondents in those summonses are not Vic Roads officers, but the contents of the subpoenas or summonses are identical, or more or less identical, to the summonses that I set aside. Mr Billings has sought to be heard in relation to the standing of the prosecutor to object or to seek to have these summonses set aside. In my view it is not necessary for me to make a ruling regarding the prosecutor's standing to make that application, as I consider the court has the power to control its own orders, and that the court can set aside a witness summons on its own motion. By parity of reasoning, the fact that I have already set aside 14 summonses in near identical terms must mean that these summonses should also be set aside for the same reasons. Accordingly, the witness summonses issued to Church, Sharp, and Mercovich are also set aside. Is there anything further?
[1] Affidavit of John Cameron Boyle sworn 30 April 2013, paragraph 27.
[3] [1990] HCA 31; (1990) 170 CLR 70 at 100.
[4] Cited with approval in British American Tobacco Australia Services Ltd v Laurie [2011] HCA 2; (2011) 242 CLR 283 at [45] per French CJ. Although French CJ dissented in that case there is no reason to suggest that the statement of principle by McHugh J is anything but plainly correct.
[5] I have set out the judgment of the Magistrate in a Schedule to these reasons.
[9] A transcript of his reasons is set out in Schedule 1 to these reasons.
[11] [1978] HCA 43; (1978) 142 CLR 1 per Gibbs ACJ at 25; Mason J held, at 92 that an applicant for a declaration relating to a committal must show some special reason.
[12] (1987) 10 NSWLR 198 at 200 per Kirby P.
[13] [1995] VicRp 34; [1995] 1 VR 533 at 571-2.
[14] [2011] HCA 48; (2011) 244 CLR 427 per Gummow A-CJ, Hayne, Crennan and Bell JJ at [31]
[15] eg Laws v Australian Broadcasting Tribunal [1990] HCA 31; (1990) 170 CLR 70, per Gaudron and McHugh JJ at 100
[16] [2011] VSC 3 at [28].
[17] Ali Tastan (1994) 75 A Crim R 498 at 504
[18] Hunt J in R v Saleam (1989) 16 NSWLR 14 at 18
[19] [1981] UKHL 13; [1982] AC 529 at 536 per Lord Diplock
[20] [2011] HCA 48, per Gummow ACJ, Hayne, Crennan and Bell JJ at paras 89 and 90 (citations omitted)
[21] Waddington v Magistrates' Court of Victoria & Kha [2013] VSC 101 at [8] to [14]
[22] [1984] FCA 329; (1984) 4 FCR 498, at 501, Fox J concurring and Beaumont J agreeing.
[24] [2011] VSC 3 at [28].
[26] See affidavit of John Cameron Boyle sworn 30 April 2013, para 43.
[27] [2013] VSC 201 at [15] - [20].
[28] Dey v Victorian Railways Commissioners [1949] HCA 1; (1948) 78 CLR 62, 91.
[29] Dey v Victorian Railways Commissioners [1949] HCA 1; (1948) 78 CLR 62, 91-92.
[30] Charles Lloyd Property Group Pty Ltd v Buchanan [2013] VSC 148 (Revised 5 April 2013) [49].
[31] Charles Lloyd Property Group Pty Ltd v Buchanan [2013] VSC 148 (Revised 5 April 2013) [50].
[33] Counsel for Western Truck also placed reliance on all of his written submissions, which I have recorded above.
[34] [1962] UKPC 2; [1962] AC 322 at 337.
[36] A reference to Re JRL; Ex parte CJL [1986] HCA 39; (1986) 161 CLR 342 at 346.
[37] [2008] NSWSC 540 at [52].
Western Truck Towing
Magistrates' Court of Victoria and Roads Corporation [2013] VSC 224
The principles upon which that jurisdiction is exercisable are well settled. A case must be very clear indeed to justify the summary intervention of the court to prevent a plaintiff submitting his case for determination in the appointed manner by the court with or without a jury. The fact that a transaction is intricate may not disentitle the court to examine a cause of action alleged to grow out of it for the purpose of seeing whether the proceeding amounts to an abuse of process or is vexatious. But once it appears that there is a real question to be determined whether of fact or law and that the rights of the parties depend upon it, then it is not competent for the court to dismiss the action as frivolous and vexatious and an abuse of process.
...
In Burton v. Shire of Bairnsdale [1908] HCA 57; (1908) 7 CLR 76, at p 2; [1908] HCA 57; 14 ALR 529, at p 34 , O'Connor J said: Prima facie every litigant has a right to have matters of law as well as of fact decided according to the ordinary rules of procedure, which give him full time and opportunity for the presentation of his case to the ordinary tribunals and the inherent jurisdiction of the court to protect its process from abuse by depriving a litigant of these rights and summarily disposing of an action as frivolous and vexatious will never be exercised unless the plaintiff's claim is so obviously untenable that it cannot possibly succeed.[29]
(1908) 7 CLR 76
(1990) 170 CLR 70
(2011) 242 CLR 283
(1978) 142 CLR 1
(1987) 10 NSWLR 198
(2011) 244 CLR 427
(1989) 16 NSWLR 14
(1984) 4 FCR 498
(1986) 161 CLR 342
(1995) 118 FLR 60
(2009) 22 VR 343
(2008) 20 VR 92
(1948) 78 CLR 62