Plaintiff v First Defendant

Supreme Court of Victoria|2014-09-01|Before: WILLIAMS J

ADMINSTRATIVE LAW - Judicial review - Order 56 Supreme Court (General Civil Procedure) Rules 2005 - Decision of Judicial Registrar in Magistrates' Court - Decision set aside - Order in nature of certiorari inutile - Re-hearing of charges - Order in the nature of mandamus unavailable - Adjournment application refused.

1 The plaintiff, Mr Kyriazis, seeks relief in the nature of certiorari quashing a 7 February 2013 order of a Judicial Registrar of the Magistrates' Court at Heidelberg and an order in the nature of mandamus requiring the Magistrates' Court to re-hear and determine the matter.

3 Mr Kyriazis represents himself in this proceeding, as he did at all relevant times before the Magistrates' Court at Heidelberg. He relies upon two affidavits, affirmed by him on 23 April 2013 and 28 May 2013, respectively. He exhibits to his 28 May affidavit transcripts of recordings of the hearing before Mithen JR and the interaction between him and court officials beforehand.

4 The first defendant has adopted the customary course of not participating in the hearing and agreeing to abide by the outcome.[1]

5 The second defendant, the nominal informant for traffic camera matters for Victoria Police, resists Mr Kyriazis' application. He relies upon an affidavit sworn on 20 August 2013 by Kenneth Marsh, the Victoria Police Prosecutor who appeared at each hearing the subject of the application.

6 The 7 February orders were made in the absence of Mr Kyriazis. He had left the court after the Judicial Registrar had advised him that he was not authorised to record the proceeding. According to the transcript exhibited to Mr Kyriazis' 28 May 2013 affidavit, the Judicial Registrar informed him that he was not authorised to record the proceedings under s 130 of the Evidence (Miscellaneous Provisions) Act 1958 and that his purported reliance on the Listening Devices Act 1969 as the source of his power to record was inappropriate. The Judicial Registrar also informed Mr Kyriazis, before he left the court, that the matter would continue in his absence if he did leave. The Judicial Registrar stated that he was satisfied that Mr Kyriazis knew that the proceedings taking place in his absence were being recorded.

7 On 27 February 2013, Mr Kyriazis applied under s 88 of the Criminal Procedure Act 2009 for orders that the charges determined in his absence be re-heard. He stated his reason for not appearing in each case as follows:

The order was made in the absence of the accused. The reason for the accused's non-attendance was:

WAS NOT PRESENT AT HEARING BECAUSE HE WAS THREATENED AND INTIMIDATED.

8 The application for a re-hearing stated Mr Kyriazis's intent to apply on 21 March 2013 to the Magistrates' Court at Heidelberg for an order that the sentencing order be set aside and the charge be re-heard. Although no copy of the order made is in evidence, I am satisfied that the application was granted on 21 March 2013 as Mr Marsh deposes in his 20 August 2013 affidavit. The charges were to be the subject of a re-hearing in the Magistrates' Court at Heidelberg almost three months later, on 13 June 2013.

9 On 4 April 2013, however, notwithstanding the success of his 21 March 2013 application for a re-hearing, Mr Kyriazis attempted to file an originating motion in this Court seeking the quashing of the Judicial Registrar's decision and an order for a re-hearing. The Prothonotary referred the originating motion to the Judge in the Practice Court for directions under r 27.06 of the Supreme Court (General Civil Procedure) Rules 2005 ('the Rules'). On 12 April 2013, orders were made in the Practice Court directing the Prothonotary to seal and accept the originating motion.

10 On 24 May 2013, Mr Kyriazis filed an amended originating motion stating that he sought judicial review 'on points of law'.

The Plaintiff seeks Judgement and ruling in the following:-

COMPLAINT:- That the presiding Judicial Registrar, Mr. Peter Mithen, displayed bias against the Plaintiff by refusing to appropriately determine the issue of lawfully recording in the courtroom, and adopting an arbitrary stance towards the Plaintiff.

GROUNDS:- The audio recording of proceedings before courts is lawful, certain rare and exceptional circumstances notwithstanding. The Surveillance Devices Act 1999 (in a way similar to the Listening Devices Act 1969) ensures that the Plaintiff's Common Law Right to protect his lawful interests is protected. The presiding Judicial Registrar's citing of S.130 of the Evidence Act 1958 and S.137 of the Evidence (Miscellaneous Provisions) Act 1958 is misconceived. The failure of Mr. Mithen to appropriately determine the issue according to law and his failure to exercise discretion appropriately, is clearly shown in the Transcript of the proceeding.

REMEDY SOUGHT:- A writ of certiorari or other appropriate order bringing the issue of audio recording in any court before the Supreme Court for adjudication and determination. Further, a writ of mandamus or other appropriate order directing the Magistrates' Court to rehear the matter according to law.

COMPLAINT:- That the conduct of the presiding Judicial Registrar, Mr. Peter Mithen, breached the Rules of Natural Justice.

GROUNDS:- The presiding Judicial Registrar ignored the Plaintiff's complaint regarding threats made against the Plaintiff in the courtroom. The bias of the presiding Judicial Registrar, and his failure to appropriately Hear the Plaintiff, is exemplified in his threatening of the Plaintiff with up to 5 years imprisonment and further by his proceeding to hear and determine the matter ex parte after the Plaintiff had left the courtroom due to the lack of reception and assistance which the court is obliged to provide to a self-represented litigant.

REMEDY SOUGHT:- A writ of certiorari or other appropriate order bringing the issue of breaches of the Bias and Hearing rules before the Supreme Court for adjudication and determination. Further, a writ of mandamus or other appropriate order directing the Magistrates' Court to rehear the matter according to law.

12 In his 23 April 2013 affidavit, Mr Kyriazis deposes as follows:

During my discussions with the prosecutor, Mr Marsh, it became apparent that I was recording and Mr Marsh began to confront me in ordering me to turn my recorder off stating that I was not allowed to record in the court room. I then cited the Listening Devices Act 1969 and suggested he read it as I believe that I was acting well within my rights in recording my personal affairs and protecting my lawful interests. I further suggested to Mr Marsh that if there were any legal concerns then he would need to call security.
Moments later I was confronted by a Protective Services Office who began threatening me in an attempt to intimidate me into turning my recorder off. I directly stated to the P.S.O. that I was well within my rights to record and warned him that if he approached me in any way or handled me in any way that he would be charged with assault.
This display of threats and intimidation by the members continued on for some time and in full view of the public in the gallery.
I must state that no attempts to seize my recorder nor to arrest me was (sic) made by any police/P.S.O. member. Their only recourse was to state that Mr Mithen was aware of my recording that that "he" would deal with it.
I made several request (sic) for the members to display their identification and I was flatly refused.
After some time of silence, Mr Mithen did return to the courtroom. I attempted to explain that I had been threatened and intimidated by the members of the court room and that I was not comfortable with the matter proceeding. I further explained to Mr Mithen that I was applying the "L.D.A. 1969 s 4(2) and protecting my lawful interests by recording my personal affairs. He stated to me that I was not "authorised" under that Act and that it was a "Commonwealth Act". He then cited the "Evidence Act s 130" stating to me that I needed permission of the court to record and then went on to cite the "Misc Provisions Act s 137" stating that to me that I would subject myself to up to five years' imprisonment for illegally recording in the court room.

I found his assertions to be most preposterous. At no stage did Mr Mithen question my allegations of threats and intimidation by the Police Members nor did he offer me any form of assistance regarding those issues. At that stage I believed that I was not going to receive a fair and impartial hearing and that my only choice in view of the situation at hand was to remove myself from the court.

As I was leaving, Mr Mithen stated that he was going to hear the matter anyway.

13 The re-hearing of the charges took place on 19 June 2013 before Magistrate Pithouse at the Heidelberg Magistrates' Court. Mr Kyriazis again attempted to make his own recording of the hearing and again left the court when told that he could not do so. The hearing once again proceeded ex parte. The learned Magistrate this time convicted Mr Kyriazis on each count and imposed a fine of $176 with $71.40 statutory costs in relation to each charge.

14 Mr Kyriazis then applied to the Heidelberg Magistrates' Court for orders under s 88 of the Criminal Procedure Act, this time seeking orders setting aside the 13 June 2013 orders of Magistrate Pithouse. He gave the reasons for his application in these terms:

The order was made in the absence of the accused. The reasons for the accused's non-attendance was:

IT WAS NOT A FAIR AND IMPARTIAL HEARING AS IT WAS HEARD EXPARTE AND THE MAGISTRATE SHOWED BIAS.

15 This second application for re-hearing was refused by Magistrate Dawes on 19 July 2013.

16 In Wingfoot Australia Partners Pty Ltd v Kocak,[2] the High Court said this about the availability of certiorari:

The function of an order in the nature of certiorari is to remove the legal consequences or purported legal consequences of an exercise or purported exercise of power. Thus, an order in the nature of certiorari is available only in respect of an exercise or purported exercise of power which has, at the date of order, an "apparent legal effect". An order in the nature of certiorari is not available in respect of an exercise or purported exercise of power the legal effect or purported legal effect of which is moot or spent. An order in the nature of certiorari in those circumstances would be not simply inutile; it would be unavailable.[3]

17 Mandamus will not issue except to order the performance of a duty which remains unperformed. A successful applicant for the relief must show that any ostensible performance is ineffectual or invalid. [4]

18 Mr Kyriazis acknowledges that the charges were re-heard, but maintains that there was a continuing legal effect of the 7 February orders, demonstrated by the decision of Magistrate Pithouse, who, like Mithen JR, also refused him permission to record the re-hearing. He argues that there is a continuing 'legal controversy' between him and the Heidelberg Magistrates' Court, the first defendant, relating to the issue of his entitlement to make a recording of his 'personal affairs' which he asserts is permissible under s 11 of the Surveillance Devices Act 1999. He submits, as I understand him, that the issue 'continues' as a live one because not only was he was again prevented from recording the proceeding before Magistrate Pithouse but the issue was also raised in front of Magistrate Dawes and she too directed him to turn off his recording machine.[5]

19 The second defendant responds that there would be no utility in making the order sought quashing the decision of Mithen JR. The charges have been re-heard, convictions and penalties imposed and an application for a subsequent re-hearing refused. I agree.

20 Similarly, mandamus ordering the Magistrates' Court to conduct a re-hearing which effectively has already been performed is not available. As the second defendant submits, and I agree, there is no argument that the re-hearing before Magistrate Pithouse was a nullity nor is there anything in the material before the Court to suggest that this might be the case.

22 Having considered the obstacles to a grant of the relief he sought, Mr Kyriazis made an oral application for an adjournment.

23 The adjournment was to enable him to seek to amend his originating motion to include new claims, challenging at least Magistrate Pithouse's decision and also possibly Magistrate Dawes' refusal to grant his application for the setting aside of his Honour's decision and the further re-hearing of the charges. Mr Kyriazis wished to make these amendments to mount a challenge in this Court to the continuing refusal of the first defendant, the Heidelberg Magistrates' Court, to allow him to record its proceedings. He challenges the existence of a discretion in that court as to whether he be permitted to make the recording.

24 The application was opposed by the second defendant, who contended that any discrete challenges should be the subject of individual proceedings and noted the length of time elapsed since the other challenged determinations.

25 In deciding to refuse the application, I had regard, in particular, to the following:

(a) the 60-day time limit for the commencement of proceedings under r 56.02(1) of the Rules;

(b) the late adjournment application made at trial, only after the Court had raised the obstacle to relief identified in the second defendant's 24 January 2014 submissions to which Mr Kyriazis had replied in 30 June 2014 submissions; and

(i) decisions of the Full Court and the Court of Appeal, respectively, recognising the inherent power of both the Court[6] and of VCAT[7] to determine whether they will permit recording of proceedings;

(ii) Mr Kyriazis' stated intention to rely upon the s 11(2) exemption to the prohibition on communication or publication of private conversations or activities under s 11(1) of the Surveillance Devices Act 1999 as the source of his right to record Magistrates' Court proceedings without the permission of the judicial officer conducting those proceedings; and

(iii) the judicial discretion to permit a party to record a proceeding under s 130 of the Evidence (Miscellaneous Provisions) Act 1958.

[1] This approach was sanctioned by the High Court in R v Australian Broadcasting Tribunal; Ex parte Hardiman [1980] HCA 13; (1980) 144 CLR 13.

[3] Ibid 72 [25] (French CJ, Crennan, Bell, Gageler and Keane JJ), citing Hot Holdings Pty Limited v Creasy (1996) 185 CLR 149, 159 (Brennan CJ, Gaudron and Gummow JJ).

[4] R v War Pension Entitlement Appeal Tribunal; Ex parte Bott [1933] HCA 30; (1933) 50 CLR 228, 242-3 (Rich, Dixon and McTiernan JJ).

[5] See Transcript of Proceedings, Victoria Police v Vasilios Kyriazis (Magistrates' Court of Victoria at Heidelberg, Magistrate Dawes, 19 July 2013) 1.

[6] Stefanovski v Murphy [1996] VicRp 78; [1996] 2 VR 442, 444 (Tadgell J), 444 (Ormiston J), 460 (Teague J).

[7] Luck v Principal Officer of Department of Justice (Ruling) (Unreported, Supreme Court of Victoria Court of Appeal, 24 May 2013) [19] (Nettle JA; Ashley JA agreeing).

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