Plaintiff v First Defendant

Supreme Court of Victoria|2014-06-27|Before: T FORREST J

ADMINISTRATIVE LAW - Plaintiff charged with one count exceeding the speed limit - Judicial review of a decision to refuse an application for release of subpoenaed documents and an associated costs order - Test of legitimate forensic purpose - whether error of law on the face of the record - whether unreasonableness - whether Magistrate erred in failing to obtain plaintiff's consent before he was cross examined on his previous convictions - Relevant considerations to the costs discretion under s 131(1) of the Magistrates Court Act 1989 - proportionality and consistency.

2 The first impugned order dismissed an application on summons by the plaintiff for the production of twelve documents relating to the testing, calibration and use of a traffic camera positioned on East Link at Rowville, Victoria ('the subpoenaed documents'). The second impugned order awarded costs against the plaintiff.

3 The summons was issued in the context of a summary criminal proceeding during which the plaintiff sought to defend one charge of exceeding the speed limit contrary to Rule 20 of the Road Safety Road Rules 2009, which is a classic absolute liability offence.[1] The charge sheet sets out the particulars of the alleged offending as follows:

The Accused at Rowville on 14/11/2012 being the driver of a vehicle on a length of road, named East Link, did drive at a speed over the speed-limit applying to the driver for the length of road where the driver is driving, to which a speed-limit sign of 100 kilometres per hour applied at Wellington Road Bridge.

The alleged offence was detected by a road safety camera and the alleged speed was 105km/h.[2]

4 The Road Safety Act 1989 ('the Act') creates a scheme according to which offences detected by road safety cameras may be proved without the need to call evidence concerning the operation of those cameras. An image or message produced by a road safety camera that is provided in or with a certificate that complies with various provisions of the Act may, in the absence of evidence to the contrary, be relied upon as proof of the offence.[3] The evident purpose this scheme is to streamline prosecutions for certain traffic offences.

5 The brief of evidence served on the plaintiff included the following:

(a) a Certificate under Section 83 of the Road Safety Act 1986 as evidence of compliance with the Road Safety (General) Regulations 2009, rr 35, 36 and 37, and;

(b) a Certificate of an authorised person under Section 83A of the Act.

6 On its face, the first of these certificates confirmed that the relevant traffic camera was operating correctly at the time of the alleged offence and had been sealed in accordance with the Road Safety (General) Regulations 2009.

7 For reasons that will become apparent, however, it was the s 83A certificate that occupied the parties at the review hearing. It stated,

(a) On 14/11/2012 the Gatsometer Digital Radar Camera-System Parabolic (DRCS-P) was a prescribed road safety camera as defined in the Road Safety Act 1986 and was tested, sealed and used in the prescribed manner and produced the images produced in printed form in paragraph (c).

(b) The printed images and messages, set out in paragraph (c) were produced by a process prescribed for the purposes of section 81 of the Road Safety Act 1986.

8 Following paragraph (c) were two photographs of what was accepted to be the plaintiff's car, both of which were overlayed by the following message:

Eastlink, Rowville, Southbound, Wellington Road Bridge in lane 3 from the left for the vehicle direction of travel. 100km/h speed limit on 14/11/2012 at 12:32:07am. Vehicle speed 108 km/h at that time and place.

9 Broadly speaking, the subpoenaed documents were said to concern certain technical standards according to which the certificates were issued and thus the ultimate issue of the reliability of the relevant traffic camera and the associated images and messages. The first defendant objected to the release of the subpoenaed documents and called upon the plaintiff to demonstrate that he had a legitimate forensic purpose for seeking same.

10 Ultimately, the presiding Magistrate was not satisfied the plaintiff had made out a legitimate forensic purpose and the application was refused. Costs were awarded against the plaintiff in the sum of $6,140 with a stay on payment of 3 months.

11 In his originating motion dated 24 September 2013 the plaintiff sought the following relief:

An order to quash the decisions, findings and orders made on 29th August 2013, by the Magistrates Court of Victoria at Melbourne, by which the Court (Magistrate Hodgens) found that there was no forensic purpose for the summons for test records and denied access and awards costs against the plaintiff.

That the [plaintiff] be granted access to the summonsed documents in order to prepare his defence against the charge.

12 The plaintiff, who is self-represented, clarified his grounds for review at the review hearing. Across the two decisions the plaintiff alleges the failure to take into account a relevant consideration, the taking into account of an irrelevant consideration, unreasonableness and various errors of law.[4] I will set out these grounds as they arise in respect of each of the impugned decisions, the first on the production of the subpoenaed documents and the second on the issue of costs.

13 It is necessary to say something about the adequacy of the Magistrate's reasons, which were really no more than peremptory statements of conclusion. The plaintiff did not press this as a ground of review and in any event it is not clear that this failure could constitute reviewable error given the nature of the decision.[5] It is desirable, however, that Magistrates sitting in the Criminal Division provide at least some reasons for their decisions.[6] These need not be lengthy and in a case such as this might consist of no more than one or two lines. The failure to do so frustrates the review process.

14 Section 66 of the Act provides that a prescribed offence that is detected by a prescribed road safety camera is an 'operator onus offence' for the purposes of pt 6AA of the Act. In very short compass, operator onus offences are offences in respect of which it is presumed that the driver of a vehicle, if unascertained at the time of the offence, was the person last known to have possession or control of the vehicle.[7]

15 Exceeding the speed limit contrary to r 20 of the Road Safety Road Rules 2009 is a prescribed offence for the purpose of s 66 of the Act [8] and the Gatsometer Digital Radar Camera System-Parabolic (DRCS-P) is a prescribed road safety camera.[9] It is of some relevance to the provisions which follow that this is, therefore, an offence to which s 66 applies.

16 I set out the relevant provisions of the Act as they were in force at the date of the offence:

(1) If in any criminal proceedings the speed at which a motor vehicle or trailer travelled on any occasion is relevant, evidence of the speed of the motor vehicle or trailer as indicated or determined on that occasion by a prescribed road safety camera or prescribed speed detector when tested, sealed and used in the prescribed manner is, without prejudice to any other mode of proof and in the absence of evidence to the contrary, proof of the speed of the motor vehicle or trailer on that occasion.

81 Certain matters indicated by speed cameras are sufficient evidence

(1) If in proceedings for an offence to which section 66 applies the speed at which a motor vehicle or trailer travelled on any occasion is relevant, evidence of the speed of the motor vehicle or trailer as indicated or determined on that occasion by -

(a) a detection device prescribed for the purposes of section 66 when tested, sealed and used in the prescribed manner; or

(b) an image or message produced by a detection device prescribed for the purposes of section 66 when tested, sealed and used in the prescribed manner; or

is, without prejudice to any other mode of proof and in the absence of evidence to the contrary, proof of the speed of the motor vehicle or trailer on that occasion.

A certificate in the prescribed form to the effect that any prescribed speed detector or device referred to in section 79 or 82 has been tested or sealed in the prescribed manner, signed or purporting to be signed by a person authorised to do so by the regulations is, without prejudice to any other mode of proof and in the absence of evidence to the contrary, proof that the prescribed speed detector or device has been so tested or sealed.

83A Evidence relating to prescribed detection devices

(1) A certificate in the prescribed form purporting to be issued by an authorised person certifying -

(a) that a prescribed detection device for the purposes of section 66 was tested, sealed or used in the prescribed manner; or

(b) that an image or message described in the certificate was produced by a detection device prescribed for the purposes of section 66 or by a prescribed process; or

(c) as to any other matter that appears in, or that can be determined from, the records kept in relation to the prescribed road safety camera or the prescribed process by the police force of Victoria -

is admissible in evidence in any proceedings and, in the absence of evidence to the contrary, is proof of the matters stated in the certificate.

17 The plaintiff was served with certificates under both ss 83 and 83A. Because a certificate that complies with s 83A is proof of the matters stated in the certificate and because one of those matters, in addition to certification that the device was tested, sealed and used in the prescribed manner, was in this case an image and message indicating the detected speed, the certificate under s83A appears to have made a s 83 certificate unnecessary. There was some material in the courtbook that indicated this will now be the case for all prosecutions for these offences. Though little may turn on this issue, it explains why the focus of the review hearing has been on the s 83A certificate.

18 I note that 'absence of proof to contrary' ensures that the prescribed certificates constitute only prima facie proof of the offence and protect the accused's right to defend a charge of exceeding the speed limit. Evidence to the contrary will be "evidence to the opposite effect" and "must at least be accepted by the tribunal of fact as having some weight."[10]

19 The plaintiff challenges the decision to refuse his application for production of the subpoenaed documents on the following grounds:

a) that the Magistrate committed an error of law on the face of the record in finding that he did not have a legitimate forensic purpose for seeking production of the subpoenaed documents;

b) that the Magistrate erred in permitting the plaintiff to be cross examined on his criminal record without his prior consent;

c) that the Magistrate's decision was manifestly unreasonable.

20 In State of Victoria v Lane Kyrou J briefly summarised the principles relevant on an application for production of subpoenaed documents.[11] I gratefully adopt this summary:

Where an accused in a criminal proceeding seeks production of documents pursuant to a subpoena, the accused must satisfy the Court that he or she has a legitimate forensic purpose. That purpose must be identified expressly and with precision.[12]

In order to demonstrate a legitimate forensic purpose, the accused must show that 'it is on the cards' that the documents would materially assist the accused in his or her defence.[13] The expression 'on the cards' means 'reasonable possibility'. Accordingly, the test for determining whether there is a legitimate forensic purpose is whether a reasonable possibility exists that the documents would materially assist the defence.[14]

The reasonable possibility test should be applied flexibly and with common sense in order to give the accused a fair opportunity to test the Crown's case and to take advantage of any applicable defences.[15]

Mere speculation that the documents might assist the accused's defence is insufficient to satisfy the reasonable possibility test.[16] This is because mere speculation amounts to a fishing expedition which can never constitute a legitimate forensic purpose.[17] Mere relevance to an issue in the proceeding is also not sufficient to establish a legitimate forensic purpose.[18]

Where the accused wishes to rely on a statutory defence, the absence of evidence from which an inference can be drawn that the documents sought will satisfy the requirements of the defence does not necessarily mean that the reasonable possibility test is not met.[19] This is particularly so where there is only one statutory defence available to the accused and that defence involves technical information exclusively in the possession of the Crown; insistence by the court that the accused present evidence which provides a basis for a positive inference that the documents sought will satisfy the requirements of the defence may effectively 'eviscerate' the defence.[20] It follows that the importance of the requested documents to an accused's ability to establish a defence can inform the application of the reasonable possibility test.[21]

21 This final principle will seldom be more significant than in a case where the only evidence of the excessive speed of a motor vehicle is produced by a road safety camera, where the only defence open to the accused can only be that this evidence is in some way defective and where the documents sought by the accused go to the testing, calibration and operation of that camera.

22 In Lane the accused was charged with five speeding offences and issued a summons for production of documents similar to those sought in this case. The presiding Magistrate refused an application by the informant to set aside the summons, of which order the informant sought review before Kyrou J. In her detailed reasons the presiding Magistrate noted that:

• The accused was 50 years old, maintained he was a careful driver, and had no prior convictions or traffic infringements.

• While driving the accused used cruise control and satellite navigation to monitor his speed.

• The accused travelled past the relevant camera regularly to and from work and, it followed from the first observation, had never been detected speeding by the relevant camera.

• All five offences were detected by the same camera, at the same location, within the space of 19 days in September 2009.

These assertions provided 'some foundation' for the accused's concern that the relevant traffic camera had been defective and led her Honour to the conclusion that a legitimate forensic purpose lay behind the request for the documents.[22]

23 Kyrou J held, applying the principles at [19], that it had been open to her Honour to reach this conclusion. He nevertheless noted that,

[t]he position might have been different if the only basis upon which Mr Lane sought the Documents was a mere assertion that he did not believe that he was travelling at the speed allegedly detected by the three cameras and that the Documents might demonstrate that he was not travelling at the alleged speeds. In such a situation, it might have been difficult for the Magistrate to reach any conclusion other than that Mr Lane was embarking on a fishing expedition and was seeking discovery in a criminal proceeding.[23]

24 Ultimately, the test is one of fact and degree.[24]

25 It is necessary to set out the submissions at first instance as without them the Magistrate's brief reasons are meaningless.

26 The plaintiff claimed that his purpose in seeking production of the subpoenaed documents was,

to seek the advice of an appropriate expert to determine whether the speed detection device has been calibrated, tested and operated according to the requirements of the Road Safety (General) Regulations 2009.[25]

27 The plaintiff was, he said, specifically concerned with compliance with r 35 which requires these devices to be "properly calibrated so that [they indicate] speed readings within a limit of error not greater than or less than 2 kilometres per hour or 2 per cent (whichever is greater) of the true speeds."[26] Simple arithmetic indicates that if the uncertainty were as great as 8% it could account for the difference between the speed limit and the detected speed.

28 The plaintiff argued that independent evidence cast doubt on the accuracy of the detected speed and, it followed, made it reasonably likely the documents would demonstrate a defect in the device or reading that would assist in his defence. To this end the plaintiff gave evidence, viva voce and by affidavit dated 27 August 2013, that:

• He could state with certainty that his vehicle was not travelling at the alleged speed and estimated the actual speed to have been between 80 to 85km/h. He remembered this occasion well as it was late at night and an unusual time for him to be travelling home.[27]

• For almost a year he had travelled on the same stretch of road at approximately the same speed, every working day in both directions, without any infringements either before or after the alleged offence.[28]

• He knew the exact location of the speed cameras in the relevant area and would "back off" as he passed them.[29]

• A portion of the roadway immediately preceding the relevant traffic camera was under construction at the time of the alleged offence and zoned 80km/h. The plaintiff always drove this section of the freeway at 80km/h and could not have accelerated to 108km/h (the detected speed) in the two to three car lengths between the end of the 80km/h zone and the relevant traffic camera.[30]

29 The plaintiff submitted these facts made his case analogous to Lane.

30 Mr Russell, for the First Defendant, identified what he said were two narrow or preliminary bases for dismissing the plaintiff's summons in relation to at least some of the subpoenaed documents. First, it was said that the only certificate upon which the Crown intended or was obliged to rely as proof of the offence was the certificate under s 83A. It followed, Mr Russell submitted, that any document or thing sought solely in respect of the s 83 certificate could not materially assist the plaintiff in his defence. Second, Mr Russell submitted that a previous decision of this court provided authority for the proposition that certain other documents, concerning the relevant test standards and associated legislation, were irrelevant to the charge of exceeding the speed limit.[31]

31 Mr Russell conceded that these narrow points could not account for every item on the summons and was permitted to cross-examine the plaintiff, generally, on matters going to his asserted forensic purpose. During that examination the plaintiff accepted that:

• In 2004 he had established a website called 'Fight Fines', the stated purpose of which was to inform the public of the inaccuracies of road traffic cameras;[32]

• On that website he advised the public that if a fraction of the 2.5 million speeding fines issued each year were challenged it would clog up the court system;[33]

• He had 6 prior convictions for exceeding the speed limit, although an appeal was pending in the Supreme Court in respect of one of these. Five of these traffic offences had occurred between 2005 and 2013.[34]

• He did not have GPS in his car at the time of the alleged traffic offence;[35]

• He had not had the speedometer independently calibrated. He maintained, however, that he had checked the speedometer to the best of his own ability as an engineer.[36]

32 Ultimately, and leaving to one side the two narrow points, Mr Russell submitted that the plaintiff's evidence amounted to little more than a bald assertion that he wasn't speeding and, it followed, that the Magistrate ought not be satisfied he had demonstrated a legitimate forensic purpose. This submission applied generally to each of the documents or things subject of the application.

33 Mr Russell argued the present case could be distinguished from Lane, most notably due to the absence of the unusual temporal relationship between the offences in that case but also because of the plaintiff's prior convictions (where Mr Lane had none) and the fact that the plaintiff's car had not, at the relevant time, been fitted with GPS technology. Mr Russell also argued that the plaintiff's true purpose in seeking production of the documents was to publish them to his website or use them for some other purpose unrelated to the legal proceeding.

34 After the parties had been provided with ample time to present their submissions His Honour ruled on the issue:

HIS HONOUR: Well, I will be against you, Mr Agar. I am not satisfied. The onus is on you to satisfy the court that there is a legitimate forensic purpose. You have heard submissions made on behalf of the prosecution. I am not satisfied with respect to any of the documents that there is a legitimate forensic purpose. So the application with respect to this subpoena is refused.[37]

35 The plaintiff seeks orders in the nature of the prerogative writs on, inter alia, the ground that the Magistrate committed an error of law on the face of the record in finding that he did not have a legitimate forensic purpose for seeking production of the subpoenaed documents.

36 In reviewing for error that does not go to jurisdiction a Superior Court is restricted in the matters to which it may have regard. Certiorari is only available as a discretionary remedy for non-jurisdictional error of law where that error is apparent on the face of the record.[38] In Victoria, the task of defining the record has been simplified by the Administrative Law Act 1978, s 10 of which provides,

Any statement by a tribunal or inferior court whether made orally or in writing, and whether or not made pursuant to a request or order under section 8, of its reasons for a decision shall be taken to form part of the decision and accordingly to be incorporated in the record.[39]

37 The provision extends to remarks made during the hearing of an application if it is clear those remarks constitute part of the reasons for the impugned decision.[40] The remarks set out at paragraph [31], however, represent the sum total of the Magistrate's reasons and it follows that the record in this case comprises very little beyond the formal decision on the application and the associated orders.

38 Judicial review is not an opportunity for a superior court to apply the relevant legal principles to the facts and substitute its own view for that of the court below. The question is whether the decision at first instance is affected by error. The ground of error of law on the face of the record will be made out in this case if there is some misstatement of the law in the Magistrates reasons or, alternatively, if it is apparent from the record that it was not open to the Magistrate to reach the conclusion that he did. The defendant referred to this as a 'threshold issue' but really it is the only issue on this ground. In my view the plaintiff did have a legitimate forensic purpose in seeking production of the documents. That conclusion, whilst at odds with the Magistrate's conclusion, does not necessarily bespeak error by the Magistrate on this issue.

39 At the review hearing the plaintiff again sought to draw parallels between the facts in this case and the facts in Lane. The defendant, on the other hand, placed some reliance on an earlier case, Glare v Bolster,[41] in which Beach J quashed a decision of a Magistrate dismissing an application to set aside summonses seeking the production of documents relating to a speed camera. To the extent that either of these submissions went beyond the argument that it was open to the presiding Magistrate to conclude that the plaintiff either did or did not have a legitimate forensic purpose, in my view they are misguided. Submissions based in fact and by analogy are distracting in this case both because they misconceive the nature of the review function[42] and because the facts, supposedly demonstrative of error, are not present on the face of the record.

40 In Lane, Justice Kyrou observed that Glare v Bolster did not stand,

...for any general proposition that, on a charge of exceeding the speed limit, where the accused's speed is sought to be proved by a certificate stating the speed detected by a speed camera, the accused can never demonstrate a legitimate forensic purpose in seeking production of documents relating to the servicing of the camera.[43]

41 Nor does Lane stand for the opposite proposition, namely that on a charge of exceeding the speed limit, where the accused's speed is sought to be proved by a certificate stating the speed detected by a speed camera, the accused will always demonstrate a legitimate forensic purpose in seeking the production of documents relating to the servicing of the camera. For error to be apparent on the face of the record (in this case, apparent from the bare order dismissing the application) there would need to be a rule to that effect and there is not.

42 The existence of a sole statutory defence based on establishing fault with a traffic camera is a consideration relevant to the application of the reasonable possibility test, but it is not determinative.[44] Though it will generally favour the production of documents, reasonable minds may differ in the weight they ascribe to this consideration and will do so, appropriately, in the context of an overall assessment of the circumstances of the case.

43 There is no misstatement of the relevant test or principle in the Magistrate's reasons and I am not satisfied that a misapprehension of the relevant test or principle may be inferred from the Magistrate's conclusion, which was consistent with the principles at [20]ff.

44 It follows from the above that I am not satisfied the decision was affected by an error of law on the face of the record.

[The Magistrate] erred by accepting into evidence the Appellants prior record without obtaining consent of the Appellant to place the record into evidence.

46 I have observed that at the mention on 29 August 2013 the plaintiff was cross examined on his previous convictions for speeding. The plaintiff argues that in admitting his criminal record into evidence without first obtaining his consent the Magistrate contravened s 90 of the Act and/or s 78 of the Criminal Procedure Act 2009.

47 Section 90 of the Act and s 78 of the Criminal Procedure Act 2009 permit the tender of a document purporting to set out the particulars of an offender's previous convictions or findings of guilt and, evidently, apply where the court admitting the document into evidence has convicted the offender.[45] The apparent purpose of these provisions is to facilitate the proof of an offender's previous convictions and, ultimately, allow the court to assess his previous character, which is a mandatory consideration under the Sentencing Act 1991.[46] It follows, in my view, that neither section applies on an interlocutory application such as this because the accused, if he is to be convicted, has not yet been convicted.

48 Even if that were not so, the plaintiff's argument fails because the Magistrate did not admit the plaintiff's criminal record into evidence. The plaintiff, when cross examined, accepted the particulars of his previous convictions but there is no evidence before me that a criminal record or other document was tendered as proof of those convictions.[47]

49 Except to the extent that s 90 of the Act and s 78 of the Criminal Procedure Act 2009 concern the admissibility of a 'document containing the prescribed particulars' or a 'criminal record', these sections do not create additional rules governing the admissibility of previous convictions; they simply facilitate their proof.[48] Although s 90 of the Act requires the offender to consent to the tender of a 'document containing the prescribed particulars',[49] neither that section nor s 78 of the Criminal Procedure Act 2009 require the Court to obtain an accused's consent before evidence of his previous convictions may be admitted.

50 A further objection to the evidence of the plaintiff's previous convictions might be that it was irrelevant to the issue of the plaintiff's legitimate forensic purpose. The previous convictions, however, tended to rebut one or more of the factual analogies the plaintiff sought to draw with Lane. In that case it was of some significance that the accused had no prior convictions or traffic infringements; here, the plaintiff had a number.

51 It follows that I am not satisfied that the Magistrate erred in permitting the plaintiff to be cross examined on his previous convictions.

52 The grounds of judicial review invariably bleed into one another.[50] In dealing with the ground of error of law on the face of the record I have already noted that reasonable minds may differ in their application of the legitimate forensic purpose test. That observation recognises that although the law, correctly applied, may validly lead different decision makers to different conclusions, these conclusions must be open in the sense that they must be reasonable.

53 A finding of unreasonableness may serve as the basis for an inference that there has been some misapplication of the relevant legal principle or, in other words, an error of law.[51] In the same way, unreasonableness will often be indicative of a failure to take into account a relevant consideration or the taking into account of an irrelevant consideration.[52] The ground of unreasonableness does not, however, require the identification of specific error and it would be wrong to say that just because the plaintiff has not made out grounds (a) and (b) he must fail on the ground of unreasonableness.

54 Beyond unreasonableness expressive of particular error a challenge to the validity of a decision will succeed where the exercise of a power was so unreasonable that no reasonable decision-maker could have exercised that power in the same way in those circumstances.[53] This requirement is often known as Wednesbury unreasonableness and takes its name from the Wednesbury Corporation case. The Wednesbury formulation is the most famous statement of the requirement of unreasonableness but it is neither a point of departure nor conclusion for the ground.[54]

55 The ground of unreasonableness will be made out where the decision is manifestly unreasonable, that is, where the decision lacks an evident and intelligible justification or simply defies comprehension.[55] Further, a decision will be unreasonable where it is illogical or irrational in the sense that it involves illogical findings, or inferences of fact unsupported by probative material or logical grounds.[56]

56 The ground may also be established where the decision under review is plainly inconsistent with other decisions made in respect of circumstances that are substantially similar, if not identical, to those of the decision under review.[57]

57 In reviewing for unreasonableness, a court is not concerned with the merits or the correct or preferable decision; unreasonableness lies at the very outer limits of the valid exercise of power and within those limits preserves a great degree of decisional freedom.[58] As French CJ recently observed in Li,

The requirement of reasonableness is not a vehicle for challenging a decision on the basis that the decision-maker has given insufficient or excessive consideration to some matters or has made an evaluative judgment with which a court disagrees even though that judgment is rationally open to the decision-maker. Gleeson CJ and McHugh J made the point in Eshetu that the characterisation of somebody's reasoning as illogical or unreasonable, as an emphatic way of expressing disagreement with it, "may have no particular legal consequence."[59]

58 Applying these principles, I am not satisfied that the decision was unreasonable for the reasons which follow.

59 First, and as I have said, the test of legitimate forensic purpose is one of fact and degree and allows for differences in opinion. Although I might not agree with it, the Magistrate's conclusion does not defy comprehension or lack an intelligible justification.

60 It fell to the presiding Magistrate to assess the plaintiff's reliability and credibility as a witness and, it follows, the strength of the evidence said to demonstrate the legitimate forensic purpose. There was little, if any, evidence before his Honour that would not have been affected by an unfavourable assessment of the plaintiff as a witness. I have no view as to whether the Magistrate did or should have assessed the evidence in this way but it was open to him to do so.

61 The closest the plaintiff came to independent or corroborating evidence of his speed was the submission that he simply could not have accelerated from 80km/h to 108km/h (the detected speed) in the two or three car lengths between the 80km/h zone and the point of detection. There is, however, some circularity to this argument in the sense that it invited the Magistrate to assess the reliability of the plaintiff's self-reported speed at the time of detection in light of the plaintiff's self-reported speed as he passed through the 80km/h zone. The Magistrate might have considered this to be the kind of fallacious logical argument in which a premise directly or indirectly assumes the conclusion to be true.

62 Even if the Magistrate had not taken an unfavourable view of the plaintiff's evidence, there was still the question of the probative limits of that evidence. In my view, the evidence went beyond a "mere assertion" that the plaintiff was not speeding, but that is not the test. There is at least some merit to the opposite conclusion - that a collection of uncorroborated assertions that a person would or could not have been speeding adds up to little more than an assertion that they were not speeding - and having identified this possible and intelligible justification for the decision the task of the reviewing court is concluded.

63 Second, nothing in the Magistrate's reasons or, for that matter, the transcript is suggestive of irrationality or illogicality or the drawing of inferences unsupported by probative material. It follows from my observations a moment ago that I do not consider illogicality or irrationality may be inferred from the conclusion itself.

Third, unreasonableness for inconsistency with previous decisions will be rare. In a case such as this, the evidence that goes to the legitimate forensic purpose will invariably be provided by the party seeking access to the relevant documents. No two witnesses or deponents are identical and, as I have said, it is for the relevant Magistrate to assess the reliability and credibility of their evidence. In my view, that fact alone would be sufficient to avoid unreasonableness for inconsistency even if the content of the testimony of the witness in each case were identical. There are, in any event, significant differences between the facts in this case and the facts in Lane, most notably those adduced by the first defendant in cross-examination of the plaintiff (above, at [31]).

64 I turn now to the order awarding the first defendant costs pursuant to s 131(1) of the Magistrates Court Act 1989. At the conclusion of the hearing Mr Russell, for the informant, sought costs in the sum of $8,140 representing his brief fee of $3,500, the same fee for one day's preparation and four hours for instruction at $1,140.

65 The informant submitted there was nothing in this case that justified a departure from the usual rule that costs should follow the event. The plaintiff resisted the informant's application and submitted that an order for costs in the sum sought would be inconsistent with the total pecuniary outcome in cases prosecuted by the police (rather than by private counsel) and disproportionate to the criminality of the offence.[60] As authority for the proposition that the award ought be consistent and proportionate the plaintiff referred, in substance, to the decision of Osborn J in Hobsons Bay City Council v Viking.[61]

66 The Magistrate ordered the plaintiff pay the first defendant's costs in the sum of $6,140. His Honour noted this figure represented only $5000 of the $7000 sought for counsel's fees but once again did not provide reasons.

67 In his originating motion, the plaintiff characterises the alleged error in the exercise of the Magistrate's discretion in this way:

a. The Magistrate erred with respect to consistency. Breaches of the Road Safety Rules with respect to speeding fines, together with actions association with the production of material related to the Brief of Evidence are normally prosecuted by a Police officer. The decision of the Informant to engage private counsel to introduces a significant inconsistency in costs.

b. The Magistrate erred with respect to proportionality by not considering the total likely outcomes in terms of fines plus costs with other outcomes of the summary prosecution system. It is the appellants view that the costs awarded are disproportionate to the criminality of the conduct in issue.

68 It is apparent from these statements and the plaintiff's oral submissions that there are three discrete bases upon which he impugns the decision. They are:

a) That the Magistrate erred in the exercise of his discretion in awarding costs that were inconsistent with outcomes in like cases and/or disproportionate to the criminality of his offending.

c) That the Magistrate erred in the exercise of his discretion in failing to consider matters raised by the principles of consistency and proportionality.

69 The power of the Magistrates' Court to award costs is contained in s 131(1) of the Magistrates' Court Act, which provides:

(1) The costs of, and incidental to, all proceedings in the Court are in the discretion of the Court and the Court has full power to determine by whom, to whom and to what extent the costs are to be paid.

70 The discretion to award costs is 'effectively unfettered' but it is a judicial discretion and there are limits beyond which a court will fail properly to exercise it.[62] The fundamental question will be whether it was open to the Magistrate to exercise the discretion as he or she did.[63]

71 I summarise the general principles that govern appeals from the exercise of a discretion to award costs:

• There is a strong presumption in favour of the correctness of a discretionary judgment, especially where that discretion concerns the award of costs;

• It is irrelevant that an appellate court might have exercised the discretion differently - what is necessary is that the decision was clearly wrong;

• The presumption in favour of the correctness of the decision may be overcome where there is identifiable error. This may occur where the discretion is exercised capriciously or for an improper purpose, where the Court takes into account an extraneous or irrelevant matter or fails to take into account a relevant matter, acts upon a wrong principle or exercises the discretion on the basis of a mistaken fact or assumption;

• Where the error is said to be one of quantum a court will only interfere in an extreme case, that is, where the result is so unreasonable or plainly unjust that the exercise of the discretion has effectively miscarried.[64]

72 In my view, these principles apply equally where a court exercises a supervisory jurisdiction and in many ways resemble standard administrative law grounds. There is, in any event, a 'close analogy' between the function of a court conducting judicial review and that of an appellate court reviewing the exercise of a judicial discretion.[65] In judicial review proceedings, however, orders in the nature of the prerogative writs will only issue to remedy an error that amounts to jurisdictional error.[66]

73 The principles of proportionality and consistency will ordinarily guide the judicial discretion to award costs.[67] Although an unfettered discretion maximises the possibility of doing justice in every case, consistency in its exercise maintains public confidence in the legal process[68] and is the 'antithesis of arbitrary and capricious decision-making'.[69] The principle that procedural costs ought be proportionate to the dispute in question will be alive in all cases but has an additional dimension in the criminal jurisdiction.[70]

74 In their submissions both parties spoke to the recent and analogous decision of Hobsons Bay, in which Osborn J considered the relevance of consistency and proportionality to s 131(1) of the Magistrates Court Act 1989. Hobsons Bay was an appeal from costs orders made in two summary criminal proceedings in which the respondent was convicted of eight traffic offences under the Road Rules and ordered to pay two aggregate fines.[71] In addition to requesting disbursements, which the Magistrate ordered the respondent pay, the applicant council sought legal fees of just over $1,500. The Magistrate refused to make a costs order that accounted for the fees and said that to do so would introduce a costs inconsistency as between police and council prosecutions and that the costs would be disproportionate to the criminality of the accused's conduct.

75 The appellant's grounds for appeal alleged that the Magistrate had failed to exercise his discretion properly or at all and that, in basing the refusal on the principles of consistency and proportionality, he purported to act for improper reasons and/or took into account irrelevant considerations. Osborn J dismissed the appeal on each ground.

76 His Honour held that consistency and proportionality were each a legitimate reason for, or purpose of, a costs order under s 131(1) and that matters that went to those principles were therefore relevant considerations. On consistency, his Honour observed:

It was open to the Magistrate to form the view that the discrepancy in costs outcomes between police prosecutions and council prosecutions in respect of the same offence and more generally raised a relevant issue of consistency. Inconsistent outcomes do not support a system which may appear adventitious and arbitrary in its outcomes.[72]

77 On proportionality, his Honour held that in a criminal case the principle would have an additional dimension that derived from the maxim that a sentence should never exceed what is appropriate and proportionate to the offence.[73] He concluded in this way:

I accept that the purpose of an award of costs is not to punish the unsuccessful party but to indemnify the successful party. Nevertheless, in the present case the Magistrate was in my view entitled to compare total outcomes in terms of fines plus costs, with other outcomes of the summary prosecution system not only as informing a view as to consistency, but also as informing a conclusion as to the proportionality of the costs sought to the criminality of the conduct in issue.[74]

78 I agree with Osborn J's conclusions on consistency and proportionality.

79 The first defendant argued Hobsons Bay could be distinguished on the limited basis that it was an appeal from conviction and not an interlocutory stage in that criminal proceeding. In my view this distinction is unjustified. Osborn J's concern was with total outcomes of the criminal justice system and the outcome at an interlocutory stage of a criminal proceeding will at the very least form a part of that total outcome. The nature of the application, including the identity of the applicant party, may be a relevant countervailing consideration when the Court turns its mind to consistency and proportionality of costs, but that is all.

80 It is for the presiding Magistrate to determine what consistency and proportionality require in the circumstances and to balance the dictates of those principles against all the relevant and countervailing considerations in the case. Although a Magistrate is obliged to consider a matter that is relevant to the application of those principles, Hobsons Bay does not stand for the proposition that an inconsistent or disproportionate exercise of the discretion will necessarily be invalid and I am unaware of any other rule to that effect.

81 If proportionality and consistency set limits on the valid exercise of the discretion this is because they are an aspect of the ground of reasonableness.[75] A challenge to quantum on the basis of its alleged disproportionality or inconsistency will only succeed where the costs order is so unreasonable or plainly unjust that the exercise of the discretion has effectively miscarried.[76] It follows that unless the award is so disproportionate and/or inconsistent that it is manifestly unreasonable or plainly unjust, it will be irrelevant that a reviewing court might form the view that the award was inconsistent or disproportionate.

82 The costs order was severe and arguably unfair in the circumstances. The on the spot penalty for exceeding the speed limit by less than 10km/h is a fine of around $180.[77] If the plaintiff is convicted, the total pecuniary outcome of his criminal proceeding including the $6,140 costs order will, in my view, be disproportionate to this penalty, which is one measure of the seriousness of the offence. Similarly, the discrepancy in costs outcomes between cases in which private counsel are and are not briefed is, to my mind, obvious and introduces an element of inconsistency to the decision.

83 I am not satisfied, however, that the costs order was so unreasonable or plainly unjust that the discretion has miscarried. I take the view that it was open to the Magistrate in this case to make a costs order that did not allow senior-junior counsel his legal fees. Equally, in my view, it was open to him to do so. Proportionality and consistency are only two of the many considerations that guide the costs discretion and provided they are taken into account it is not a ground of review that they might have been given excessive or inadequate weight, or that a different conclusion on costs could or should have been reached.[78]

84 I note the Magistrate did not, in any event, allow the full extent of the costs sought.

85 As I have observed, matters that go to proportionality and consistency are relevant to the exercise of the discretion under s 131(1).[79] In my view these are mandatory considerations such that a failure to consider them will constitute jurisdictional error.[80] Were a Magistrate not obliged to consider matters raised by the parties that are relevant to these principles it is difficult to see how the exercise of the discretion would be a judicial discretion and not simply an exercise in caprice or whim, especially given the High Court's observations in Norbis.[81] It cannot be that the legislature intended the discretion in s 131(1) to be exercisable in a way that would so clearly diminish public confidence in the legal process.

86 The question, then, is a factual one: did the Magistrate consider the matters relevant to the principles of proportionality and consistency which the plaintiff put to him in submissions?

87 I have observed that reasons of the kind provided in this case frustrate the review process. The absence of reasons, however, will not always favour the defendant party on an application for judicial review.

88 Ta v Thompson & Anor was an appeal from a review proceeding in which the appellant sought orders quashing a decision of the County Court upholding a conviction and sentence for possession of a drug of dependence.[82] The issue on appeal was whether the County Court judge had failed to provide adequate reasons. The alleged inadequacy was that the relevant reasons did not sufficiently explain why the County Court judge had rejected potentially exculpatory evidence given by the appellant. Osborn JA (with whom Beach JA agreed) held, dismissing the appeal, that while the reasons needed to set out the grounds for the Judge's conclusion they did not require detailed reasoning as to the evidence.[83] His Honour then observed,

...[nevertheless] the failure to advert to relevant considerations in stating reasons of the type I have referred to may give rise to an inference that the decision maker has failed to have regard to that matter.[84]

89 The classic statement of this principle is that of Sholl J in Yendall v Smith Mitchell & Co Ltd:

The true principle, I think, must be, not that everything relevant which a magistrate does not refer to is to be taken to have been overlooked, or on the other hand, that it is to be taken to have been considered, but that, if something which should have been considered is not referred to, and the nature of the decision suggests some error, which may have been due to that matter not having been considered as it should have been, or if the magistrate's observations indicate, on a comparison of what he said with what he did not say, that the matter in question has not been considered as it should have been, the appellate tribunal may properly draw such an inference, and the magistrate will have no cause to complain if it does so.[85]

90 For a decision to be suggestive of error does not require the identification of a specific error of reasoning or a finding that the relevant conclusion was unreasonable. Where, as here, a costs order is so severe, the failure to acknowledge any consideration relevant to the principles of proportionality or consistency may validly support the inference that the reason for the severe (though not unreasonable or plainly unjust) award of costs is that the Magistrate did not have regard to such considerations or, indeed, to the principles that lay behind them.

91 As I have said, it was open to the presiding Magistrate to award costs in the sum that he did. It is nevertheless reasonable to expect that a Magistrate who imposes an award that is inconsistent with the total pecuniary outcome in cases prosecuted by the police and arguably out of all proportion to the offending would justify the award with more than the peremptory conclusion, "I am against you", or similar. The Magistrate might have referred to some relevant countervailing consideration or, equally, stated his opinion that the award was proportionate or that whilst it was disproportionate, proportionality was only one relevant factor in the mix. In my view it is more probable than not that a Magistrate who was entertaining making such an award and who understood that matters going to proportionality and consistency were relevant to the exercise of the discretion would have spoken to the submission or invited the first defendant to comment upon it. The Magistrate did not acknowledge the submission at all and moved seamlessly to conclude the issue adversely to the plaintiff. [86] In my view he cannot now complain that error is inferred against him.

It follows from the above that I consider it to be more probable than not that the Magistrate did not turn his mind to the matters raised by the principles of proportionality and consistency.

The Magistrate committed no error of law that is apparent on the face of the record when he found the plaintiff did not have a legitimate forensic purpose for seeking production of the subpoenaed documents;

The Magistrate did not err in allowing the plaintiff to be cross examined on his previous convictions and those previous convictions were not irrelevant to the question of the plaintiff's legitimate forensic purpose;

The Magistrate's conclusion on the question of the plaintiff's legitimate forensic purpose was not manifestly unreasonable.

It follows from the above that the application for an order in the nature of certiorari quashing the decision to refuse the plaintiff's summons is dismissed.

The Magistrate did not err in the exercise of his discretion under s 131(1) of the Magistrates Court Act 1989 when he awarded costs that were, in my view, inconsistent with costs outcomes in cases prosecuted by the police and disproportionate to the criminality of the alleged offending;

The costs order was not manifestly unreasonable; and

The Magistrate constructively failed to exercise the jurisdiction conferred upon him by s 131(1) in failing to consider relevant matters. This conclusion is made up of two propositions of law and one of fact:

a. Matters that go to the principles of consistency and proportionality are relevant to the exercise of the discretion under s 131(1);

b. These matters are mandatory considerations such that a failure to consider them will constitute jurisdictional error; and

c. I consider it to be more probable than not that the Magistrate failed to consider these matters.

93 It follows from the above that the prerogative jurisdiction is enlivened.

94 Although prerogative relief is discretionary,[87] I agree with Spigelman CJ that a State court's prerogative writs "should issue almost as of right."[88] I see no reason to refuse the plaintiff the remedy he seeks and, in any event, the first defendant did not submit I ought do so. This is not the kind of case in which there is an alternative and preferable appeal process by which the error might be corrected; nor is it the kind of criminal case in which the plaintiff, by review, seeks to delay their day of reckoning.

95 Accordingly, I quash the costs order of 29 August 2013 and direct the Magistrates Court to rehear and determine the costs application according to law. I will hear the parties as to the costs of this application.

[2] Once allowance had been made for an uncertainty of 3km/h.

[3] I set out the relevant provisions of the Act from [13].

[4] Transcript at 4; Exhibit 2 - 'Typewritten aid-memoir of verbal submissions from the plaintiff' at [1].

[5] Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43 at [45]: 'The standard of reasons required even of courts making judicial decisions can vary markedly with the context'; Wainohu v New South Wales (2011) 243 CLR 181 at 215 (French CJ and Kiefel J): 'The [duty to provide reasons] does not apply to every interlocutory decision, however minor. Its content - that is, the content and detail of the reasons to be provided - will vary according to the nature of the jurisdiction which the court is exercising and the particular matter the subject of the decision'; See also, Perkins v County Court of Victoria [2000] VSCA 171; (2000) 2 VR 246, 270 at [56].

[6] See, also, DPP v Moroney [2009] VSC 584.

[10] DPP v Cummings [2006] VSC 327 at [35].

[11] [2012] VSC 328 at [17]- [21] ('Lane').

[12] R v Saleam (1989) 16 NSWLR 14, 18 ('Saleam'); Commissioner of the Australian Federal Police v Magistrates' Court of Victoria [2011] VSC 3 (11 February 2011) [28] ('CAFP').

[13] Alister v The Queen (1984) 154 CLR 404, 414-15 ('Alister'); Saleam (1989) 16 NSWLR 14, 18; Shaw v Yarranova Pty Ltd [2011] VSCA 55 at [26] ('Shaw').

[14] DPP v Selway [No 2] [2007] VSC 244; (2007) 16 VR 508, 510 at [4], 514 at [10] ('Selway'); Ragg v Magistrates' Court of Victoria [2008] VSC 1; (2008) 18 VR 300, 323-4 at [95]-[97]; Johnson v Poppeliers [2008] VSC 461; (2008) 20 VR 92, 106 [42] ('Johnson'), CAFP [2011] VSC 3 at [28]; Selway and Ragg were cited with approval by the Court of Appeal in Shaw at [26] n 32. Accordingly, in Lane, Kyrou J noted that the Court of Appeal's use (in obiter) of the expression 'appear likely that the documents will materially assist the applicant' did not reflect a preference for a different test. See Shaw at [26] and Lane at [18] n 5.

[15] Johnson [2008] VSC 461; (2008) 20 VR 92, 106-7 at [42].

[16] A-G (NSW) v Chidgey [2008] NSWCCA 65; (2008) 182 A Crim R 536, 550 at [58], 552 at [68] ('Chidgey'); CAFP [2011] VSC 3 at [28]; Shaw [2011] VSCA 55 at [26].

[17] Alister (1984) 154 CLR 404 at 414-15, 456; Glare v Bolster (1993) 18 MVR 53, 62 ('Glare'); Johnson [2008] VSC 461; (2008) 20 VR 92, 106 at [42]; CAFP [2011] VSC 3 at [28].

[18] Chidgey [2008] NSWCCA 65; (2008) 182 A Crim R 536, 550 at [59]-[60]; CAFP [2011] VSC 3 at [28].

[19] Alister (1984) 154 CLR 404, 414-15, 451; Johnson [2008] VSC 461; (2008) 20 VR 92, 106-7 at [42].

[20] Alister (1984) 154 CLR 404, 451; Johnson [2008] VSC 461; (2008) 20 VR 92, 106-7 at [42].

[21] Johnson [2008] VSC 461; (2008) 20 VR 92, 107-8 at [47].

[22] Lane [2012] VSC 328 at [23]ff.

[25] Affidavit of Carl Agar dated 27 August 2013 and filed in the Magistrates Court at Frankston at [9].

[26] Ibid at [4]; See, also, Road Safety (General) Regulations 2009, r 35(b).

[27] Transcript of the Magistrates Court hearing ('TM'), 13-14.

[31] TM, 6; The decision to which Mr Russell referred was Agar v Dolheguy & Anor [2010] VSC 5.

[38] See, Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163.

[40] Harvey v County Court (Vic) (2006) 164 A Crim R 63 at [17].

[42] By inviting the reviewing court to find that the decision below was the correct or preferable decision.

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