Plaintiff v First Defendant

Supreme Court of Victoria|2013-06-19|Before: LANSDOWNE AsJ

JUDICIAL REVIEW - review sought of decision of a Magistrate - application by the second defendant for a stay of the proceedings or summary judgment, or in the alternative strike out of the originating motion - originating motion alleges errors of law on the face of the record - abuse of process alleged as the plaintiff did not pursue an appeal pursuant to s 272 of the Criminal Procedure Act 2009 - whether the order of the Magistrate was a final or interlocutory order - discrepancy between orders pronounced in reasons and those recorded in register - orders for permanent stay and strike out of proceeding are interlocutory - order for dismissal final although not dismissal on the merits- appeal was available - whether summary disposal appropriate - stay and summary judgment refused - grounds in originating motion insufficiently particularised - amendment of originating motion ordered - of the - s 66A 1999 (Cth) - Order 56 and rules 23.02 and 23.03 - Section 10 .

1 These proceedings commenced by originating motion filed on 21 November 2012. The Commonwealth Director of Public Prosecutions (in the name of the informant Mr Neuss) seeks judicial review pursuant to Order 56 of the Supreme Court (General Civil Procedure) Rules 2005 ("the Rules") in respect of a decision of Magistrate Fleming made on 28 September 2012 in criminal proceedings against the second defendant. The originating motion alleges a number of errors of law on the face of the record, not jurisdictional error, and seeks relief by way of certiorari, declaration and mandamus.

2 The matter before the Magistrate was two charges against the second defendant alleging that she dishonestly obtained a financial advantage from a Commonwealth entity. Both charges were laid in 2009 but relate to conduct some years before. The first charge relates to alleged conduct in the period October 2003 to June 2004. The second charge relates to alleged conduct in the period July 2004 to October 2007. The charges arise out of an alleged failure by the second defendant to advise Centrelink of changes to her income at a time she was in receipt of parenting payment. The charges are laid pursuant to s 134.2(1) of the Commonwealth Criminal Code 1995 ("the Code").

3 The application before me is made by the second defendant on summons filed 12 December 2012. The second defendant seeks stay of the proceedings or summary judgment, or in the alternative strike out of the originating motion. The second defendant contends that the proceedings by way of judicial review are an abuse of process because the plaintiff had available to it the remedy of appeal on a question of law arising from the decision of the Magistrate pursuant to s 272 of the Criminal Procedure Act 2009 (" CPA") and did not utilise that option. The second defendant also seeks summary judgment on the basis that she has a good defence on the merits.

4 As will become apparent, it is not entirely clear what order was made by the Magistrate on that day. Identification of the order is critical because the foundation of the second defendant's argument for stay or judgment on the basis of failure to utilise appeal is that appeal was available. An appeal pursuant to s 272 of the CPA can only be brought from a final order in the Magistrates' Court. On one view, the order or orders made by the Magistrate was final; on another view, they were not.

5 The certified extract of the register records the order as "dismissed" in respect of charge 1.[1] No certified extract of the order made in respect of charge 2 was before me. I will assume for the purposes of these reasons that it is in the same form as that recorded for Charge 1. The certified extract also records that Magistrate Fleming ordered that the Commonwealth Director of Public Prosecutions pay the second defendant's costs of the proceedings in the Magistrates' Court.

6 In her written reasons for decision, however, ("the Reasons")[2] the Magistrate said she would (or did) make orders in different terms. The Reasons speak of orders made in respect of the charges on three different bases. The first was that the charges are bad for duplicity. The Magistrate records this conclusion at paragraph 19 of the Reasons which concludes with these words:

I find that the charges are bad for duplicity and accordingly they will be struck out.

7 The second basis for the orders made by the Magistrate was her conclusion that it would be an abuse of process for the prosecution to proceed with the trial because of her conclusion that the prosecution was doomed to fail. This is recorded at paragraph 26 of the Reasons which concludes with these words:

The proceeding will necessarily fail and accordingly is struck out.

8 The proceedings had a very long history in the Magistrates' Court before the order made on 28 September 2012. The third basis relied upon in the Reasons is recorded in paragraph 29 of the Magistrate's reasons which concludes with these words:

For the reasons above and further that I consider the court's procedures have now become unjustifiably oppressive to the Accused and further would bring the administration of justice into disrepute I order a permanent stay of the proceedings against Ms Currey.

9 As can be seen, the three different bases are said in the Reasons to result in three different orders - that the charges be struck out; that the proceeding be struck out; and a permanent stay of the proceedings. The Reasons conclude with a heading "Orders" and under that the following two orders are stated:

The proceedings against Mrs Currey will be struck out.
CDPP ordered to pay costs to be taxed in default of agreement.

11 It is necessary to set out something of the broader context within which these proceedings are brought. Section 135.2(1) of the Code contains both a physical element and a mental element. The physical element is that the person charged has engaged in conduct as a result of which the person has obtained a financial advantage for himself or herself from another person, that other person being a Commonwealth entity. In Poniatowska v Director of Public Prosecutions (Cth),[3] the Full Court of the Supreme Court of South Australia held that the expression "engages in conduct" in s 135.2(1)(a) did not overcome the requirement that the conduct charged must be the omission of an act that a person is under a legal duty to perform.[4] In question was whether the failure to notify Centrelink of an increase in income was the omission of an act the recipient of the Centrelink support was under a legal duty to perform.

12 The Commonwealth Director of Public Prosecutions sought special leave to appeal to the High Court in respect of that decision, which leave was subsequently granted. Prior to the delivery of the judgment by the High Court in that appeal, the Commonwealth introduced retrospective curative legislation which created in social security legislation a relevant duty. Section 66A was inserted into the Social Security (Administration) Act 1999 (Cth) ("the Administration Act") by the Social Security and Other Legislation Amendment (Miscellaneous Measures) Act 2011 (Cth) ("the Amending Act"). Section 66A(2) relevantly provides:

(i) a social security payment...is being paid to a person; [and]

(b) an event or change of circumstances occurs that might effect the payment of that social security payment...;

the person must, within 14 days after the day on which the event or change occurs, inform the Department of the occurrence of the event or change.

13 The Amending Act received Royal assent and so became law on 4 August 2011. The Amending Act provides that s 66A is deemed to apply to an event or change of circumstances that occurs on or after 20 March 2000.

14 Apparently by way of explanation for this retrospective legislation, the Explanatory Memorandum to the Amending Act expressed concern on the part of the Commonwealth that:

A large number of past convictions are at risk of being overturned on appeal on the basis of the decision in Poniatowska.[5]

15 After the commencement of the Amending Act, the High Court delivered judgment in Commonwealth Director of Public Prosecutions v Poniatowska.[6] The High Court affirmed the decision of the South Australian Full Court.

16 The basis on which the Magistrate in these proceedings determined that the prosecution was bound to fail was her conclusion that s 66A would not apply to the proceedings against the second defendant because they did not fall within the class of case referred to in the Explanatory Memorandum i.e. the proceedings were pending, rather than completed.

17 Litigation has continued in relation to the question of a relevant duty for prosecutions for "social security fraud" for failure to inform of a change of circumstance. A pending prosecution arising out of an alleged failure to inform of a change of circumstance was removed from the Magistrates' Court in Victoria to the High Court on 14 December 2012. Those proceedings, Director of Public Prosecutions (Cth) v Keating ("Keating"), were heard by the High Court on 3 April 2013. Judgment was delivered on 8 May 2013.[7] Keating concerns the application of s 66A to pending charges, being, as here, charges laid prior to Royal Assent to the Amending Act but in respect of conduct that arose in the period after the deemed date of commencement of the Amending Act, once it received Royal Assent. The defendant, Ms Keating, asserted that for the prosecution to rely on s 66A, that section must have been in force at the time of the alleged conduct. She asserted that that was not the case in respect of the prosecution against her because at the time of the conduct on which the prosecution relied the Amending Act, creating s 66A, had not yet received Royal Assent. The prosecution in Keating also relied on service of notices on the defendant, Ms Keating, under s 67 and related sections of the Administration Act ("information notices"), which notices required her to inform Centrelink if her income had increased.

18 Three questions (together with a fourth question in relation to costs) were stated by Justice Hayne for consideration by the Full High Court. The questions and the Court's answers are as follows:

Does s 66A of the Administration Act create a duty, from 20 March 2000, for the purposes of s 4.3(b) of the Commonwealth Criminal Code, such that a failure to inform the Department of the occurrence of an event or a change of circumstances as required by s 66A of the Administration Act amounts to "engaging in conduct" for the purposes of s 135.2(1)(a) of the Commonwealth Criminal Code?

If yes to question 1, is s 66A of the Administration Act invalid, in so far as it has retrospective effect, because it infringes the separation of judicial and legislative powers mandated by the Constitution?

Did the notices issued to the defendant, as identified in paragraphs 13 and 15 of the stated case, or any of them, create a duty for the purposes of s 4.3(b) of the Commonwealth Criminal Code, such that a failure to perform the act or acts required by the notice or notices amounts to 'engaging in conduct' for the purposes of s 135.2(1)(a) of the Commonwealth Criminal Code?

The notices issued to the defendant, as identified in paragraphs 13 and 15 of the stated case, were, in each case, capable of creating a duty for the purposes of s 4.3(b) of the Code such that a failure to perform the act or acts required by the notice or notices amounts to "engaging in conduct" for the purposes of s 135.2(1)(a) of the Code.

19 The Court remitted the prosecution to the Magistrates' Court for hearing on the basis of the notices referred to in Question and Answer 3. In the body of the judgment the High Court held:

The recipient of an information notice is under a legal duty to comply with the notice. What is required in order to discharge the duty will depend upon the terms of the notice. The intentional failure to comply with the notice, where the failure results in the recipient obtaining a financial advantage from a Commonwealth entity knowing or believing that he or she is not eligible to receive the financial advantage, is an offence contrary to s 135.2(1) of the Code.[8]

20 Remittal to the Magistrates' Court was required in Keating because of factual disputes about the information notices not recorded or resolved in the stated case.

21 The High Court did not find that s 66A was invalid by reason of retrospectivity or otherwise. The Court reached its conclusion in respect of Question 1 by reasoning from s 4.3 of the Code which provides that an omission to perform an act can only be a physical element if:

(b) the law creating the offence impliedly provides that the offence is committed by an omission to perform an act that by law there is a duty to perform.

The use of the present tense in s 4.3(b) is important. The exception to the general principle for which it provides applies to the failure to act where there is a presently existing legal duty to act. Criminal responsibility under s 4.3 is confined to the failure to do a thing that at the time of the failure the law requires the person to do. The obligation is coincident with the failure to discharge it.[9]

To observe that s 66A of the Administration Act operates with retrospective effect is not to conclude that the deemed duty it imposes engages with s 135.2(1)(a) and s 4.3 of the Code so as to render the latter nugatory in the case of an omission to inform the Department of an event or change in circumstances on and from 20 March 2000 to 4 August 2011, the date on which the Amendment Act received the Royal Assent.

24 Accordingly, the Court held that s 66A could not apply to the conduct charged in Keating because at the time of that conduct it was not the law - the amending Act had not received Royal Assent. That is the same situation in these proceedings. The Court held, however, that the legal duty to inform the Department may arise from information notices served on the defendant. Counsel for the plaintiff informs me that similar notices are or may be relied on by the prosecution in this case.

25 On delivery of the judgment in Keating, inquiry was made by this Court of the parties as to whether a decision in these proceedings was still required. The parties confirmed that decision was still required. The originating motion challenges the Magistrate's decision not only in respect of s 66A, but also in respect of her conclusions on duplicity and permanent stay. Given that the matters in respect of s 66A appear to have been overtaken by the High Court decision in Keating, I will exclude consideration of the originating motion in these reasons in so far as it relates to s 66A. If I am incorrect in my assumption that that aspect of the matter is no longer to be pressed, the parties will have an opportunity to seek that I articulate my reasons in respect of that matter as well.

26 The second defendant's summons seeks relief in these terms (excluding the prayer for costs):

That the proceeding be stayed or judgment be given for the Second Defendant under rule 23.01 of the Supreme Court (General Civil Procedure) Rules 2005 on the ground that the proceeding is an abuse of process of the Court or is vexatious in that it raises for determination under order 56 matters which, if they are within the jurisdiction given by that order, could have been but were not the subject of an appeal pursuant to s 272 of the Criminal Procedure Act 2009.
There be summary judgment for the Second Defendant under rule 23.03 of the Supreme Court (General Civil Procedure) Rules 2005 on the ground that the Second Defendant has a good defence on the merits to the proceeding in that it raises for determination under order 56 matters which, if they are within the jurisdiction given by that order, could have been but were not the subject of an appeal pursuant to s 272 of the Criminal Procedure Act 2009.

3. The endorsement of claim in the proceeding be struck out, under rules 23.02 (a), (c) or (d) of the Supreme Court (General Civil Procedure) Rules 2005 on the grounds that:

(a) it does not identify the basis upon which the matters set out in it entitle him to the relief claimed;

(b) the matters set out in it as grounds upon which relief is sought are decisions of the Court which are not matters upon which the relief sought may be granted in law, or which do not clearly appear to be matters upon which the relief sought may be granted in law, or which mix up such matters with matters upon which such relief may or may not be granted.

27 Accordingly, the first issue is whether summary judgment or stay should be granted, on the basis of abuse of process, being the failure of the plaintiff to utilise appeal pursuant to s 272 of the CPA.

28 Next, consideration is required of the claim that summary judgment should be granted on the basis that the second defendant has a good defence on the merits. Although the summons specified that judgment on this basis should be given because of failure to utilise appeal, the oral submissions appeared to range more broadly.

Dismissal or stay on the basis that the plaintiff should have appealed

30 The primary contention of the second defendant is that the proceeding should be stayed or judgment be given for the second defendant on the basis that the plaintiff had available to him the avenue of appeal on a question of law pursuant to s 272 of the CPA and failed to utilise that opportunity. This argument is put by the second defendant in relation to both stay or judgment under r 23.01 and summary judgment on the basis of a good defence on the merits pursuant to r 23.03. There are a number of aspects to this submission.

31 First, it assumes that appeal was available pursuant to s 272 of the CPA. That section provides for appeal on a question of law only from a final order of the Magistrates' Court to the Supreme Court. Thus this first element of the submission depends on the order made by the Magistrate being a "final order".

32 In the event that element is satisfied, the second defendant relies on two decisions of the Court of Appeal, Kuek v Victoria Legal and the Magistrates' Court of Victoria[10] ("Kuek") and Perkins v The Victorian Bar Inc and Legal Professional Tribunal[11] ("Perkins"). In Kuek, the appellant sought leave to appeal out of time from a civil order made in the Magistrates' Court. Section 109 of the Magistrates' Court Act 1989 confers a right of appeal on a question of law from a civil final order made in the Magistrates' Court in similar terms to the right of appeal on a question of law from a final order in criminal proceedings conferred by s 272 of the CPA. The appellant was out of time for such appeal and so needed leave to appeal. Leave was refused by a Master and on appeal to the judge in the Practice Court that decision was confirmed. By the same originating motion which sought leave to appeal out of time, the appellant also sought relief by way of judicial review under O 56. That matter went to trial. The trial judge ruled that none of the grounds for judicial relief was made out. She also said that she would in any event have dismissed the proceeding:

on the basis that the court has no jurisdiction to hear the matter. Alternatively on the basis adopted by the Court of Appeal in DJC v Berg I would decline to exercise the discretion sought by the plaintiff.[12]

33 On appeal to the Court of Appeal in relation to that aspect of the trial judge's determination, Phillips JA (with whom Winneke P and Buchanan JA agreed) held that:

unless there are indeed exceptional circumstances, a litigant may not raise for determination under Order 56 - or at all events may not raise with any real chance of success - a matter or thing which is proper for determination on appeal where that very litigant has a right of appeal under s 109. In other words, if the proper course is an appeal under s 109, albeit an appeal which is subject to the limitations imposed by that section, the litigant cannot choose at his or her option to turn to Order 56 as an alternative. As has been said, judicial review should not be seen as a means from appealing from the decision of a magistrate: Marrington v Miller; Stefanovski v Murphy; see also Craig.[13]

34 Kuek concerned an appeal and judicial review from a civil proceeding, but His Honour expressly adopted the remarks of Ashley J (as he then was) in Stefanovski v Murphy which concerned a criminal appeal. He held that like considerations obtained in respect of an appeal under s 109. Phillips JA affirmed the decision of the trial judge. He did express the view, however, that he would prefer to rest the decision that the appellant failed on the basis of an exercise of discretion, rather than jurisdiction. He continued:

It is perhaps a moot point whether a case would arise in which it would be proper, despite the right of appeal conferred by s 109, to exercise the discretion in favour of relief by way of judicial review after error of law on the part of a magistrate, but I need not decide it. It is enough, that as at present advised, I would not altogether exclude it. As I have already said, such a case would surely depend upon exceptional circumstances.[14]

35 The decision in Kuek was affirmed in Perkins, which also concerned judicial review pursuant to O 56 in respect of a matter where right of appeal also existed. Chernov JA with whom the other member of the Court, Buchanan JA agreed, held that:

Kuek relevantly established that, ordinarily, unless there are exceptional circumstances, a litigant who has a right of appeal to the Supreme Court from an inferior body should not be permitted to raise for determination under o 56 a matter which could have been properly dealt with by way of appeal. ... it is plain that the court in Kuek considered that whether such a limitation should be imposed was a matter for the discretion of the court dealing with the issue.[15]

36 In an earlier paragraph within his judgment, Chernov JA identified the principle to be an aspect of the Court's general discretion in granting prerogative relief in these words:

It is clear enough that, ordinarily, prerogative relief is not available as a matter of course, and whether the particular relief should go is a matter for the court's discretion. An important consideration in this regard is, as the applicant's counsel acknowledged, whether an alternative proceeding was available to the claimant.[16]

37 The second defendant says here that appeal was available; the plaintiff chose not to utilise it; and there are no exceptional circumstances shown. Accordingly, the second defendant says the proceeding should be summarily determined.

38 As set out earlier, there is scope for argument as to the order made by the Magistrate. The certified extract records the order (in respect of charge 1 at least) as dismissal. The Reasons, however, record the order as being that the proceedings be struck out at the conclusion of the Reasons, and in the body of the Reasons, strike out and permanent stay. The Reasons form part of the record for the purpose of the certiorari sought for error of law on the face of the record.[17] Thus there is a discrepancy between one part of the record, and the other, as to order or orders made.

39 The parties themselves have each put arguments on the basis of the orders as expressed in the body of the Reasons, i.e. both parties have sought to go behind the face of the order as expressed in the register, although the second defendant also relies on the order as stated in the certified extract from the register. If the order is considered to have been either permanent stay on the grounds of abuse of process or strike out of the proceedings, then in my view the order on either basis is properly to be regarded as interlocutory. It follows that an appeal was not available pursuant to s 272. My reasons for this conclusion are as follows.

40 In relation to the order (if any) for permanent stay, the second defendant relies on a chain of authority commencing with Port of Melbourne Authority v Anshun (No 1)[18] ("Anshun (No 1)") where the High Court considered as a preliminary matter an objection to the competency of an appeal. The order by the trial judge there in question was that proceedings before him be "forever" stayed on the grounds that the action was an abuse of process as the matters in question could and should have been litigated in earlier proceedings. This order was upheld by the Full Court of the Supreme Court of Victoria and was sought to be appealed to the High Court. The Court held that the order was final, not interlocutory. The Court distinguished the circumstances before it from those in Tampion v Anderson,[19] a decision of the Privy Council where it was held that an order staying an action on the grounds that it is frivolous, vexatious and an abuse of the process of the court is an interlocutory judgment. The Court in Anshun (No 1) reasoned that none of the cases relied upon in Tampion v Anderson concerned a stay granted on the basis of estoppel of the kind now in question. The Court held:

There may well be a difference between a case in which the action is frivolous or vexatious in the ordinary sense, or in which the proceedings disclose no reasonable cause of action, and a case in which the abuse of process lies in the an attempt to litigate an issue which is res judicata, and Tampion v Anderson has nothing to say about a case of the latter kind.[20]

41 Anshun (No 1) has been followed by the Victorian Court of Appeal in Kermani v Westpac[21] and Sahin v NAB.[22] These cases also concerned appeals from permanent stays on the basis of estoppel in civil proceedings.

42 The plaintiff in response says that Anshun (No 1) and the cases following it, are exceptions to the general rule, and are limited to a permanent stay granted on the basis of res judicata or estoppel. The plaintiff says that the general principle is that expressed in Dodoro v Knighting and anor[23] and the cases there cited to the effect that the test is whether the order finally determines the rights of the parties in a principal cause pending between them, and whether it does so is determined by the legal, not the practical effect of the order.[24] Charles JA in Dodoro v Knighting and anor expressly referred to an order "forever staying" a proceeding as interlocutory and characterised Anshun (No 1) as the exception to the general rule in these terms:

an order striking out, or even "forever staying" or dismissing, a proceeding because it is frivolous, vexatious or an abuse of process or because it does not disclose a reasonable cause of action is interlocutory, unless the abuse of process lies in an attempt to litigate an issue which is res judicata.[25]

43 His Honour referred to Anshun (No 1) in his reference to res judicata and said in the footnote: "If there are other exceptions, in addition to res judicata, they are likely to be narrowly confined." His Honour then referred to decisions subsequent to Anshun (No 1) being Little v the State of Victoria,[26] and Re Luck in the High Court[27] which confirmed that Anshun (No 1) is limited to stays on the ground of res judicata.

44 The approach taken in Dodoro v Knighting and anor, that Anshun (No 1) is the exception to the general rule, was also followed by the Court of Appeal in ASIC v Lindberg (No 2).[28] That case also concerned a permanent stay of proceedings, in that case granted because of other pending proceedings arising from the same facts. The preliminary issue before the Court of Appeal was whether leave to appeal was required because the decision sought to be appealed was interlocutory. The Court held:

An order striking out, dismissing or staying a proceeding because it is an abuse of process is generally regarded as interlocutory. In Anshun, however, Gibbs J said that Tampion v Anderson had nothing to say about 'a case in which the abuse of process lies in an attempt to litigate an issue which is res judicata'. Accordingly, to the extent to which the trial judge's decision rested on estoppel, it may be final notwithstanding the lack of a final determination founding the estoppel.[29]

45 The cases to which the parties have referred, here set out, have principally been civil. The plaintiff also relies on a Court of Appeal decision concerning a criminal prosecution, Director of Public Prosecutions v His Honour Judge Lewis and anor,[30] ("Lewis") which concerned an application for judicial review of a permanent stay of charges granted by the County Court. The Court of Appeal there expressly adopted Tampion v Anderson as authority for the proposition that "the direction that there be a permanent stay is properly to be regarded as an interlocutory, not a final, order."[31]

46 The second defendant has referred me to discussion by Redlich J (as he then was) of the power of a magistrate to grant a permanent stay in criminal proceedings in Neill v County Court of Victoria and anor[32]. In a portion of his reasons for concluding that a magistrate has such power, His Honour stated that "A Magistrate finally determining rights and obligations in the exercise of the court's summary jurisdiction has the power to stay criminal proceedings before it which are an abuse of process."[33](emphasis added). Although the emphasised words might be thought to add weight to the second defendant's contention that a permanent stay is a final order, the issue as to whether such an order was final or interlocutory was not before His Honour, as it was before the Court of Appeal in Lewis, and so those remarks cannot be said to be determinative.

47 I conclude on the basis of this survey of the authorities that a permanent stay is an interlocutory order, unless the stay is granted on the basis of res judicata. The stay in this instance was not granted on the basis of res judicata and accordingly, if the order sought to be reviewed is to be regarded as an order for permanent stay, the order was interlocutory and no appeal pursuant to s 272 of the CPA lay.

48 I reach the same conclusion in respect of the order (if any) made striking out the proceedings or striking out the charges. There is a clear line of authority that such an order is interlocutory and so cannot ground an appeal pursuant to s 272 of the CPA, which is in the same terms as its precursor, s 92 of the Magistrates' Court Act. In DPP v Sabransky[34] ("Sabransky") Kellam J held, on the basis of a decision of Kaye J in R v McGowan and anor ("McGowan") [35] that an order striking out charges in the criminal jurisdiction of the Magistrates' Court is not a final order and thus is not amendable to appeal pursuant to s 92 of the Magistrates' Court Act. The Court of Appeal in Director of Public Prosecutions v Moore[36] held on the basis of McGowan that an order striking out a charge is interlocutory. Batt JA, with whom the other members of the Court agreed on this issue, held that:

The general principle is that what has been struck out, whether it be an information, charge, summons, proceeding or appeal, may be restored or reinstated, because the legal effect of striking out is merely to take the subject matter out of the court lists. As the subject matter is capable of being brought on again, the order striking it out is not final.[37]

49 Batt JA also expressly confirmed that Sabransky was correctly decided.[38]

50 These decisions have been recently applied in Tatana v Commonwealth Director of Public Prosecutions and ors in the judgments of Mukhtar AsJ[39] and on appeal, Kyrou J.[40] Those proceedings also concerned a purported appeal pursuant to s 272 of the CPA against an order made by a magistrate striking out a proceeding. Mukhtar AsJ held that as the order was interlocutory an appeal did not lie and this judgment was affirmed on appeal.

51 The second defendant contended that a strike out may in some circumstances be a final order - that the characterisation as final or interlocutory depends on the reasons for the order. Counsel for the second defendant did not take me to any authority in support of this proposition, other than reasoning by way of analogy from the approach to stay in Anshun (No 1). While this may provide some foundation the argument, the authorities to which I have referred above are against it. I am not persuaded that it is correct.

52 I conclude that if the order or orders is or are as expressed in the Reasons (which form part of the record) then the orders made by Magistrate Fleming were interlocutory. No appeal pursuant to s 272 would lie and so this leg of the second defendant's application necessarily fails.

53 The order as recorded in the register, as opposed to the Reasons, was dismissal. The plaintiff contended that even if the order was dismissal, as recorded in the certified extract from the register, then the order was not final because it was not dismissal on the merits. In support of this proposition the plaintiff relies on remarks made by Kellam J in Sabransky in relation to his conclusion that a strike out was an interlocutory order. His Honour said that the order was interlocutory because it did not "finally dispose of the rights of the parties in the principal proceedings." That is, of course, consistent with authority. He continued immediately thereafter, to compare the order before him with determination on the merits:

The Magistrates' Court did not determine the matter on its merits. No evidence was called before the Magistrates' Court as to the merits of the proceedings. The Court did not make any order dealing with the substantive issue leading either to conviction or dismissal of the charges brought before it. In my view, it is theoretically open for an application to be made to re-instate the proceeding, futile though such an application is likely to be in the present circumstances.[41]

54 The plaintiff's submission is not consistent with other authority, both before and after Sabransky. In Director of Public Prosecutions v Velevski[42] Hansen J was concerned with an appeal under s 92 of the Magistrates' Court Act from the dismissal of a charge following refusal to allow amendment. The prosecution had lead evidence on the application to amend, but not in respect of the charge. The defendant submitted that the appeal was not from a final order because no evidence had been lead in support of the charge, and the refusal of amendment was an interlocutory order. Hansen J rejected the submission and held the two orders could not be separated; the interlocutory order (refusal of leave to amend) was involved in the final order (dismissal) and so an appeal lay. It does not appear that Kellam J in Sabransky was referred to this decision.

55 In the more recent decision Director of Public Prosecutions v Kirtley,[43] J Forrest J considered an appeal under s 272 of the CPA in respect of a dismissal of a charge by a magistrate for procedural reasons, and without hearing on the merits. It does not appear from the judgment that there was any contention that the appeal did not lie because the order was not final, and so the case does not in terms rule on that issue. It is, however, a clear example of appeal from dismissal on the basis that it is a final order, regarded as being unexceptionable.

56 The comments made by Kellam J on which the plaintiff relies were strictly dicta. They were explanatory of, rather than necessary to, his decision. Further, as a matter of logic, it is not the case that a conclusion justified by comparison with a clearly different situation (dismissal on the merits as a final order) means that these are the only two alternatives i.e. unless the facts fall into that comparison situation the order cannot be final.

57 In my view, dismissal is a final order whether it is on the merits or not. If the case is not dismissed on the merits, then there is no res judicata, and, subject to time or other limitation, fresh proceedings on the same cause of action may be possible. This does not mean the order of dismissal, in the instant proceedings, is not final. Dismissal finally concludes the matters in that particular proceeding between the parties, whether or not dismissal is on the basis of the merits. It is not to the point that, in some circumstances, fresh proceedings may issue arising from the same subject matter.

58 It follows that, if the order is regarded as being the order expressed in the register, then in my view it was a final order notwithstanding that the proceedings were not dismissed on the merits. Accordingly, an appeal would have been available pursuant to s 272.

59 Given the discrepancy between the orders in the Reasons, and in the register, and the different consequences which flow, it is necessary to determine which part of the record expresses the order made. This issue was not the subject of detailed argument before me, both parties generally preferring to address the orders as foreshadowed in the Reasons. I was not referred to any authority, if there be any, on the point. For that reason, what follows is necessarily tentative.

60 Section 10 of the Administrative Law Act 1978 relevantly provides that:

any statement by...an inferior court...of its reasons for a decision shall be taken to form part of the decision and accordingly to be incorporated in the record.

61 The section does not say anything about the consequence of any discrepancy between decision and reasons. I enquired of the parties if any application had been made to Magistrate Fleming for clarification of her order, for example by way of the slip rule, and was informed that no such application had been made. The second defendant did advert to comments made by the Magistrate in a subsequent hearing in relation to costs in support of the proposition that the Magistrate regarded the order as final, but conceded that this Court was strictly confined to the record of the decision challenged by the originating motion. I think that correct, and have paid no heed to the subsequent transcript.

62 In the course or argument, I also asked the parties about the significance of a certified extract as opposed to orders foreshadowed or pronounced in reasons. Section 18 of the Magistrates' Court Act relevantly provides as follows:

18(1) The principal registrar must cause a register to be kept of all the orders of the Court and of such other matters as are directed by this Act or the rules to be entered in the register.

(2) An order made by the Court must be authenticated by the person who constituted the Court.

...

(5) A document purporting to be an extract from the register and purporting to be signed by a registrar who certifies that in his or her opinion the extract is a true extract from the register is admissible in evidence in any proceedings and, in the absence of evidence to the contrary, is proof of the matters appearing in the extract.

63 On a necessarily tentative basis, this appears to me to confirm that the order of the Court is that authenticated and stated in the register, proof of which is by certified extract. The Magistrate is the author of both, but the authenticated order is the authoritative statement of the order made, as opposed to orders foreshadowed, or even purportedly pronounced, in her reasons.

64 The plaintiff has also referred me to r 5 of the Magistrates' Court Authentication Rules 2011 which provides as follows:

For the purposes of s 18(2) of the Act, an order may be authenticated -

(a) if the order is entered in writing in the register, by the person who constituted the court signing the entry; or

(b) if the order is entered into a computerised data storage and retrieval system, by the person who constituted the court entering confirmation of the order into the system.

65 In my view, this does not change the status of the certified extract from the register. Whether the order is entered in writing or by computer it is still to be entered by the person who constituted the court.

66 I conclude that the order of Magistrate Fleming was an order for dismissal, notwithstanding the reference to other orders of an interlocutory nature in the substance of her reasons. It follows that the plaintiff could have appealed pursuant to s 272 of the CPA.

If the order was final, should these proceedings be stayed or dismissed?

67 It is not enough, however, for the second defendant to establish that the order in question was final. The second defendant must also establish that it is appropriate on that basis to stay or dismiss the proceeding for judicial review without full hearing on the merits before a trial judge. In my view, the second defendant has not succeeded in this aspect of the argument.

68 Even in the clearest case where there is no dispute as to the nature of the order, the Court of Appeal in both Kuek and Perkins has indicated that refusal of prerogative relief in those circumstances is a matter of discretion, not jurisdiction. In Kuek, for example, the Court concluded that the application for judicial review was a clear attempt to avoid the consequences of an appeal out of time and yet the Court still held that refusal of relief was a question of discretion, not jurisdiction.

69 Summary determination is only appropriate in the clearest of cases.[44] This is not a clear case. There is, as I have sought to demonstrate, considerable doubt as to the particular order made below and so whether it is interlocutory or final. I have reached my conclusions without the benefit of full argument as to what constitutes the order. After full argument, that conclusion may be held to be incorrect.

70 Further, where the basis for judgment against the plaintiff requires the exercise of a discretion, it is rarely appropriate for that to be exercised in a summary way, without full examination at trial of all the relevant facts. In my view, this is an instance where the discretion to refuse relief is one that should be exercised by the trial judge at trial. If I am correct that the order was final, and so appeal lay, the trial judge may nevertheless conclude that exceptional circumstances existed by reason of which relief by way of judicial review would still be appropriate. It may be that the very doubt as to the order made may itself constitute exceptional circumstances. The affidavit of Mr Sprague sworn in opposition to the second defendant's summons deposes that he formed the view that an appeal was not open because "the orders of the Magistrates' Court striking out the charges and ordering a permanent stay were not final orders"[45]. He does not say why he thought they were the orders, rather than the order recorded in the register. There may be more facts on which the plaintiff would seek to rely to show exceptional circumstances for relief by way of judicial review, rather than appeal.

71 For these reasons, I will refuse stay or summary judgment for the second defendant of the originating motion pursuant to r 23.01 on the basis that the questions raised by the originating motion should have been ventilated on appeal pursuant to s 272 of the CPA.

Judgment for the second defendant on the basis of a good defence on the merits

72 I take the same approach in relation to the second defendant's alternative prayer for summary judgment pursuant to r 23.03. The commentary to that rule in Civil Procedure Victoria identifies that the origin of the rule is to be found in the former O 14(A). In Dey v Victorian Railways Commissioners[46] Dixon J said of that order that it "should be reserved for exercise as to actions that are absolutely hopeless". This is not a case which can be said, in my view, to be absolutely hopeless.

73 I have set out in the earlier section my reasons for that view in relation to the contention that prerogative relief by way of judicial review will be refused because an appeal was available, which is the basis for summary judgment pursuant to r 23.03 identified in the summons. As I adverted to earlier, counsel's submissions ranged more broadly. In addition to the argument based on the nature of the orders below, and the availability of appeal, counsel for the second defendant has taken me to numerous authorities on permanent stay for abuse of process in criminal proceedings, apparently in an endeavour to establish that the stay was appropriately granted, and so the plaintiff cannot succeed, at least in challenge to this aspect of the decision below. Counsel for the plaintiff has in turn referred in his written submissions to numerous examples of review pursuant to o 56 of the grant of permanent stays in criminal proceedings by magistrates or judges of the County Court, some of which have been successful and some not.[47]

74 In my view, whether or not the stay was appropriately granted is pre-eminently a matter for determination by the judge at trial. I accept the submission by the plaintiff to that effect.

76 I have some sympathy, however, for counsel for the second defendant in relation to the wide ranging nature of her submissions. Possibly they were necessitated, at least in part, by the almost complete absence in the originating motion of indication as to the exact nature of the alleged errors of law made by the Magistrate. Ground 6 , for example, contains virtually no information as to the nature of the error said to have been made by the Magistrate in proposing or ordering a permanent stay, save what may be gleaned from the reference to the words she used in that portion of her Reasons.

77 There is slightly more information provided by Grounds 1 and 2 in relation to the Magistrate's conclusions as to duplicity, which is separately pleaded to be an error of law by Ground 3 (though in the absence of any detail this may be merely conclusory to Grounds 1 and 2). I leave aside Ground 4 because it relates to the Magistrate's conclusion that s 66A does not apply, and as I have indicated I have assumed that the originating motion has in that respect been overtaken by Keating. Ground 5 may be intended to encompass alleged error by the Magistrate in failing to address information notices served on the defendant as an alternative source of a duty, but if that is the intention it is not made express.

78 In short, Grounds 5 and 6 are absent of all detail as to the nature of the alleged error of law; Grounds 1 and 2 contain some information, but this could be further particularised; and Ground 3 is unnecessary unless it is sought to assert an error not otherwise specified in Grounds 1 and 2. If that is the case, that error is not identified in Ground 3.

79 The second defendant seeks that the originating motion be struck out for want of sufficient compliance with r 56.01(4). That rule provides:

(4) In addition to complying with the requirements of Rule 5.05, the originating motion -

(a) shall state the grounds upon which the relief or remedy specified in the originating motion is sought; and

(b) where any mistake or omission in any judgment, order or other proceeding in respect of which relief or remedy is sought is a ground, shall specify the mistake or omission.

80 The second defendant says that the originating motion does not specify in what the particular respects the Magistrate is said to have erred, as required by paragraph (b). The plaintiff initially submitted that further detail is a matter for submissions at trial, but then conceded that the allegations of error of law made in the Grounds may constitute alleged mistakes within paragraph (b). The plaintiff sought an opportunity to amend and provide further particulars. Counsel could not immediately identify, other than in the broadest way, the nature of the error that was intended to be encompassed by Ground 6, for example, or the specific misdirection relied upon in Ground 1, but indicated that the Grounds could be further particularised within a short time frame. The second defendant opposed leave to amend prior to the determination of her application. I refused such leave, but indicated that I would take into account in my judgment on the strike out that the plaintiff seeks to amend to further particularise the Grounds, if they are held to be currently inadequate.

81 I do consider that the Grounds are currently inadequately particularised, as identified in my earlier comments. In the absence of specification of the precise alleged errors encompassed within those Grounds, the second defendant and the Court are left in doubt as to what is intended, and so the fair trial of the proceeding may be compromised.

82 The second defendant opposes leave now being granted to particularise, on the bases that the plaintiff was on ample notice of the strike out application, and failed before hearing to further particularise, and that amendment would impose hardship on the indigent second defendant. Counsel for the second defendant also opposes leave to amend given the long history of delay in the prosecution to date, as detailed in the Reasons; what she describes as the failure of the plaintiff to consider appeal within the appeal period; and the hardship imposed on the second defendant consequent upon the broader context of amending legislation and High Court challenges. Finally, she submits that no amount of particularisation to Ground 6 can cure its fundamental defect, being that it seeks to traverse a discretionary finding which is not amenable to judicial review.

83 Amendment is generally permitted as a consequence of strike out, even where the offending party has been on notice of the objection. I consider that it should be here permitted, in accordance with that usual approach. First, I do not consider that Ground 6 is necessarily fundamentally flawed. If the error is said to be the wrong application of principle in the exercise of a discretion, then that may be an error of law. In relation to delay, certainly there has been a long history to the prosecution, but the second defendant has herself added to the period before determination of the originating motion, and so the overall delay, by her summons, which has failed in so far as it sought summary determination of the proceedings. In relation to prejudice, certainly particularisation will require consideration of a new document, but if I am correct in my understanding of the application of Keating to these proceedings, amendment may be required in any event due to that cause. Cost hardship to the second defendant can be ameliorated by an order that the plaintiff bear the costs occasioned by the amendment, if that is otherwise appropriate. In that regard I draw the parties' attention to the amendments to Order 63 of the Rules which commenced on 1 April 2013. In particular, r 63.17 as to costs on amendment has been changed.

84 I will order that the Grounds be amended pursuant to r 23.02 (a) and (c) on the basis that they are currently insufficiently particularised so as to disclose a cause of action, and consequently may prejudice, embarrass or delay the fair trial of the proceeding. Amendment is also permitted as a consequence of the decision in Keating, but only (unless by agreement or further order) by way of deletion or amendment, not by way of addition of any further ground.[48]

85 I will otherwise dismiss the second defendant's summons. I will hear the parties as to costs, and directions for the future conduct of the proceeding. Those directions should be generally in accordance with the Judicial Review and Appeals Practice Note. I will also hear them as to the consequence of Keating on these proceedings, if I have not correctly understood that consequence.

[1] Exhibit AMS-1 to the affidavit of Andrew Mark Sprague sworn 21 November 2012.

[2] Exhibits AMS-2 to the affidavit of Andrew Mark Sprague sworn 21 November 2012 and Exhibit DST1 to the affidavit of Domenica Sophia Tannock sworn 30 January 2013.

[12] Quoted in Kuek, op cit, at [9].

[17] Section 10 of the Administrative Law Act 1974 and Kuek at [15].

[42] Unreported decision of Hansen J of 22 September 1994, in proceedings No 6045 of 1994.

[44] Dey v Victorian Railways Commissioners [1949] HCA 1; (1948) 78 CLR 62 at 90. For a recent statement of this principle see E A Negri Pty Ltd v Technip Oceania Pty Ltd [2010] VSCA 44 at [20]- [22].

[45] Affidavit sworn 13 December 2012, at [3].

[47] Outline of submissions on behalf of the plaintiff at [21], and the cases there cited.

[48] The parties are referred to the commentary on this point at I 56.01.65 in Civil Procedure Victoria.

Court (General Civil Procedure) Rules 2005

Security (Administration) Act 1999

Security and Other Legislation Amendment (Miscellaneous Measures) Act 2011

Court Authentication Rules 2011

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