//
[2016] VSC 20
General information, not legal advice.
Supreme Court of Victoria
2016-02-05
Lansdowne AsJ
Original judgment source is linked above.
PRACTICE AND PROCEDURE - originating motion in Form 5B seeking judicial review - Hardiman letter from the County Court - discussion as to the availability of default judgment - Supreme Court (General Civil Procedure) Rules 2015 rr 5.02(2); 56.01(2); 45.03; 45.05.
JUDICIAL REVIEW - summary dismissal - appeal to County Court against sentence imposed by magistrate - plaintiff says he signed an appeal against sentence only in error - County Court refused leave to appeal against conviction out of time - plaintiff alleges the County Court acted at the instance of ASIO - alleged fraud by Deputy Registrar of the Magistrates' Court in relation to the notice of appeal and collusion with prosecution - other alleged errors of law and breaches of procedural fairness - all grounds summarily dismissed save for the assertion that the plaintiff was denied procedural fairness by the refusal of the Court to allow him to sit at the bar table - - , and .
**1 The plaintiff was convicted by the Magistrates' Court sitting at Moorabbin Justice Centre on 23 September 2014 of two traffic offences arising, in the prosecution case, from his use of a motor vehicle at Brewer Road, Bentleigh on 27 May 2013. The first offence was failing to give his name and address pursuant to s 61(1)(c) of the Road Safety Act 1986 (' Road Safety Act') in respect of an accident occasioning property damage. The second offence of which he was convicted was charged as an offence in breach of clause 248 of the Road Safety Vehicle Regulations 2009 ('Road Safety Regulations') that, as the driver of a vehicle carrying a load, he failed to appropriately secure and fasten that load.
2 The facts alleged by the prosecution were that on 27 May 2013 the plaintiff was driving a small white ute with a tray carrying two small refrigerators. It was alleged that as the plaintiff turned the corner from Eddy's Grove into Brewer Road, one of the refrigerators fell from the back of the ute and bounced along the road into a vehicle being driven by a Ms Megan Macleod, and impacted the rear right driver's door. Ms Macleod said that she stopped her vehicle to inspect the damage and was then approached by the driver of the ute who shouted at her in an aggressive and intimidating manner and ushered her back to her vehicle shouting that there was no damage and 'it's too busy to stop here'. Ms Macleod recorded the details of the registration number of the ute and subsequently the first defendant established that the vehicle was registered to a business, Teskon Pty Limited. The plaintiff was interviewed by the police at the address of that business, during which conversation he said he was not involved in any accident and that all he was doing was picking up a fridge from the side of the road. He was subsequently charged on the basis that he was the driver of the vehicle at the time of the incident.
3 At the Magistrates' Court, the plaintiff was convicted of both offences, was suspended from driving for a period of three months and fined $1,500. The plaintiff completed a notice of appeal to the County Court at the Magistrates' Court on the same day. The only ground specified in the notice of appeal is 'that the punishment is excessive' i.e. the notice of appeal was in respect of sentence only.
4 When that appeal came before Judge Tinney on 5 December 2014, the plaintiff sought to appeal against his convictions. Such an appeal was by that date out of time, and so leave was required. Judge Tinney refused to grant leave to allow an appeal against conviction to proceed in respect of the offence of failing to give his name and address, but on the concession of the prosecution that the second offence did not in fact exist in law, extended time to appeal against that conviction and set it aside. Judge Tinney substituted a fine of $400 with no licence suspension for the penalties imposed at the Magistrates' Court.**
**5 This proceeding commenced by originating motion filed on 9 December 2014. The plaintiff seeks to challenge the refusal of Judge Tinney to grant leave to appeal the plaintiff's conviction for the first offence.
6 The originating motion uses the language of appeal. There is, however, no right of appeal to the Supreme Court from an order of the County Court on hearing an appeal against conviction or sentence of the Magistrates' Court. The only avenue of further redress in this Court is by way of judicial review, historically by way of the prerogative writs such as certiorari, and now pursuant to Order 56 of the Supreme Court (General Civil Procedure) Rules 2015 ('the 2015 Rules'). The 2015 Rules commenced in November 2015. Subject to my next comments, Order 56 was in the same form in the Supreme Court (General Civil Procedure) Rules 2005 ('the 2005 Rules') as they were at the time the originating motion was filed.
7 Rule 56.01(5) of the 2015 Rules now requires that:**
...at the time of filing the originating motion the plaintiff shall file an affidavit setting out the acts, facts, matters and circumstances relied upon in support of the plaintiff's claim.
**8 That requirement was inserted into the 2005 Rules (then as r 56.01(4.1)) after the originating motion in this proceeding was filed, coming into operation on 1 July 2015. Although there was no rule requiring an affidavit to be filed with the originating motion seeking judicial review, it was the usual practice, at least where the proceeding was commenced by a solicitor. The plaintiff in this case did not file an affidavit with the originating motion.
9 The plaintiff served the first defendant on 10 December 2014[1] and deposes that he also served the originating motion on the County Court at the Criminal Court Registry in December 2014. The Court received the usual letter in response from the County Court on 13 January 2015, being a letter to the effect that the County Court did not intend to play an active role in the proceeding and would abide the decision of the Court, and did not seek to be heard save as to any proposed costs order. The solicitor for Public Prosecutions filed a notice of appearance for the first defendant on 12 January 2015.
10 Neither of the active parties, the plaintiff or the first defendant, sought to prosecute the proceeding thereafter. It was left to the Court to list the proceeding for directions which were held on 14 April 2015. The proceeding was listed with a similar proceeding for judicial review in proceeding S CI 2014 5268, Goldberg v Shenton and the County Court ('Shenton'). Reasons for judgment in that matter are also published this day.
11 Apparently in response to this listing each of the active parties then filed applications. The first defendant filed an application on 27 March 2015 for summary judgment on the ground that the plaintiff's claim has no real prospect of success. The plaintiff opposes that application. He filed his own summons on 31 March 2015. He also filed on that date what was described as a draft default judgment as against the second defendant, the County Court, in default of appearance and defence. The plaintiff's summons sought stay of the fine of $400 pending the outcome of what the plaintiff described as his 'appeal' (i.e. the originating motion) and pending the outcome of his application for default judgment against the second respondent.
12 On 14 April 2015, I listed all applications for hearing before me on 8 May 2015, together with similar applications made by each party in the Shenton proceeding. I heard those matters in each proceeding on that day.
13 For the reasons which I now set out in detail, I have concluded that the first defendant has established that all grounds for judicial review as asserted by the plaintiff should be summarily dismissed, with the exception of Ground 3 in the originating motion. That Ground will accordingly progress to a full hearing on the merits, before a judge or before me on referral pursuant to r 77.05 of the 2015 Rules.
14 I extend my apologies to the parties for the delay in the delivery of these reasons which has been due to the press of other work.**
**15 As noted earlier, the second defendant, the County Court, did not file a notice of appearance, but rather sent what is conventionally called a Hardiman letter.
A Hardiman letter incorporates the principles in R v Australian Broadcasting Tribunal; ex parte Hardiman and others.[2] In that case, the High Court said that the usual course of action for a court or tribunal where judicial review is sought is to submit to such order as the court may make, save as to any order as to costs.[3]
16 The approach taken by the County Court in not filing a notice of appearance is, accordingly, consistent with high authority and past practice. The Rules, however, unfortunately do not give guidance that this is the expected result of service of an application for judicial review on a court or tribunal, and, as I now set out, leave open the possibility that default judgment may be sought.
17 The starting point is Rule 5.02(2) which is in the same form in the 2015 Rules as it was in the 2005 Rules that applied at the time the originating motion was filed. It provides as follows:**
An originating motion shall be in Form 5B, 5C, 5D or 5E, whichever is appropriate.
18 Some other parts of the Rules[4] make specific provision as to which form of originating motion is required to be used in a particular case. This is not, however, the case in relation to judicial review. Rule 56.01(2) in the 2005 Rules in force at the time the originating motion was filed provided in relation to an application for judicial review:
The proceeding shall be commenced by originating motion naming as defendant -
(a) a person, if any, having an interest to oppose the claim of the plaintiff; and
(b) the court, tribunal or person in respect of whose exercise of jurisdiction or failure or refusal to exercise jurisdiction the plaintiff brings the proceeding.
**19 It is in the same form in the current 2015 Rules. Thus, the rule in relation to judicial review does not in terms indicate which form of originating motion is to be used.
20 In this case, the plaintiff utilised Form 5B, which is, in fact, the form appropriately to be used unless the special procedure set down in rule 45.05 is to be utilised. Form 5B contains the words, that here appear in this originating motion with the changes as noted below:**
TO THE DEFENDANT (in the originating motion stated as 'TO THE RESPONDENT')
TAKE NOTICE that this proceeding by originating motion has been brought against you by the plaintiff (in the originating motion stated as 'Appellant') for the relief or remedy set out below.
IF YOU INTEND TO DEFEND the proceeding, YOU MUST GIVE NOTICE of your intention by filing an appearance within the proper time for appearance stated below.
... (Description as to how an appearance is filed.)
IF YOU FAIL to file an appearance within the proper time, the plaintiff (in the originating motion stated as 'Appellant') MAY OBTAIN JUDGMENT AGAINST YOU without further notice.
21 Provision for default judgment on the failure to file an appearance in a proceeding commenced by originating motion in Form 5B appears in r 45.03. At the time this originating motion was filed that rule in the 2005 Rules provided as follows:
45.03 Judgment where no appearance
(1) Where a defendant fails to file an appearance within the time limited, the Court may -
(a) on application made by the plaintiff without notice to the defendant; and
(b) on proof of service of the originating motion and of the failure -
give judgment against that defendant for the relief or remedy sought in the originating motion.
(2) For the purpose of these Rules, the hearing of the application is the trial of the proceeding.
(3) Except for the purpose of proof of service of the originating motion and of the failure of the defendant to appear, the plaintiff shall not, unless the Court otherwise orders, use in evidence on the application any affidavit made by the plaintiff or on the plaintiff's behalf and not served on the defendant with the originating motion.
**22 The rule is in the same terms in the current 2015 Rules.
23 The capacity of a plaintiff who proceeds on an originating motion under Form 5B to seek judgment in default of appearance differs from the remedy available to a plaintiff who seeks judgment in default of appearance or defence in a proceeding commenced by writ and statement of claim. In the latter instance, pursuant to Order 21 of the 2005 Rules and the current 2015 Rules, the application for default judgment is dealt with administratively. The default judgment is entered by the Prothonotary on proof of all necessary matters. The default judgment gives judgment on the averments in the statement of claim.
24 By contrast, under r 45.03, it is the Court, by judicial determination, rather than the Prothonotary by administrative act, who may give default judgment. The rule is plain that the hearing is the trial of the proceeding, in other words, the plaintiff must establish his or her case on the merits. The relief is also discretionary.
25 Applications for judicial review filed by legal practitioners are often commenced not in Form 5B, but in Form 5C, and leave to do so is sought pursuant to r 45.05. That rule provides as follows:**
(1) In this Rule plaintiff includes a person who proposes to commence a proceeding by originating motion.
(a) dispense with the requirements of Rules 5.03(1) and 8.02; and
(b) authorise the plaintiff to commence a proceeding by originating motion in Form 5C.
(3) Without limiting paragraph (2), an order may be made -
(4) An order may be made on application by the plaintiff before or after the proceeding is commenced and, except where the originating motion has been served on the defendant, application may be made without notice to the defendant.
(5) An application made before the proceeding is commenced shall not constitute a proceeding for the purpose of any requirement of these Rules with respect to originating process.
(6) Judgment shall not be given for the plaintiff, or an order made, for the relief or remedy sought in the originating motion or otherwise except on application made to an Associate Judge or, if the Associate Judge does not have authority to give the judgment or make the order sought by the plaintiff, to a Judge of the Court, on notice to the defendant in Form 45B.
(7) Where an application is made to an Associate Judge under paragraph (6), the Associate Judge may, as appropriate -
(a) hear and determine the application or refer it to another Associate Judge or a Judge of the Court for hearing and determination;
(c) place the proceeding in the list of cases for trial and give directions for the filing and service of affidavits or otherwise.
(8) Where an application is made to a Judge of the Court under paragraph (6), the Judge may give judgment or make any order the Judge considers appropriate.
**26 This rule was in the same form in the 2005 Rules in operation at the time this proceeding was commenced. Use of this procedure excludes default judgment. The plaintiff cannot seek judgment without a summons. The summons is often issued at the same time as the originating motion. This is a more convenient approach in the case of an application for judicial review, but the Rules do not stipulate it.
27 In this case, the plaintiff has not utilised the special procedure set out in r 45.05 and seeks default judgment under r 45.03 on the basis that no appearance has been filed by the second defendant. He did not serve any affidavit on the defendants with the originating motion, and so would not able to prove his case, as required by
r 45.03(2), if the application for default judgment was pressed. Further, an appearance has been entered by the first defendant, the first defendant opposes the relief sought, and the approach taken by the second defendant in sending a Hardiman letter is in accordance with usual practice, as dictated by the High Court. In these circumstances, it would not be appropriate to grant default judgment as against the second defendant, even if an affidavit attesting to the plaintiff's case had been served on the second defendant and that affidavit made out a prima facie case for the plaintiff.
28 After some discussion at the commencement of the hearing on 8 May 2015, the plaintiff did not press his application for default judgment. This particular plaintiff has been before the Court on a number of occasions in similar judicial review proceedings and it appeared from the discussion was not completely ignorant that an application for default judgment against the court below in respect of an application for judicial review of the decision of that court was unlikely to succeed, at least where there is an active contradictor. I do here record, however, that it may be of assistance to selfrepresented litigants with less previous experience to make it more plain what form of originating motion should be ordinarily utilised for an application for judicial review pursuant to Order 56.
29 The plaintiff in his written material[5] also contends that the notice of appearance filed by the first defendant was out of time. He is correct. The first defendant was served on 10 December 2014. Ten days after that time expired prior to the suspension of the running of time over the Christmas period as provided for in rule 3.04 of the 2015 Rules, which is in the same form as that rule in the 2005 Rules. A notice of appearance will, however, be accepted by the Prothonotary after the expiration of the ten days if no application for default judgment has been made. An order extending time for the filing of the notice of appearance, or explanation for its late filing, is not required. A late filed notice of appearance only requires leave if judgment in default of appearance has been entered or given.[6]**
**30 The notice of appeal signed by the plaintiff on the same day as his conviction and sentence in the Magistrates' Court was against sentence only. When the appeal came before Judge Tinney in the County Court, the plaintiff contended that this was an error on the part of the clerk at the Magistrates' Court. The plaintiff said that he had told the clerk that he wanted to appeal against conviction and sentence. The clerk then prepared a form and told him that he needed to go before a magistrate to be allowed to drive pending the appeal. The plaintiff signed the form and went straight back into court, in his account believing the form to be an appeal against conviction and sentence. The plaintiff told Judge Tinney 'I did not take notice in fine print what she (the clerk) put in'.[7] The plaintiff said that he then went overseas and returned only a few days before the hearing before Judge Tinney and was surprised that the appeal was not an appeal against conviction. He stressed that he had been distressed at the time he signed the appeal form at the loss of his licence. He said that he had 'stormed out of the court'[8] after the conviction, although he later amended this to say he had 'simply walked out'.[9]
31 The plaintiff told Judge Tinney that he had not been involved in any accident on that day. The plaintiff deposes in his affidavits in this proceeding that he also denied involvement in any accident at the Magistrates' Court, and the statement of facts on the back of the original summons also records him as denying to Constable Stocker when first questioned that he had any involvement in any accident, although, as earlier noted, he is recorded as telling Constable Stocker that 'all I was doing was picking a fridge from the side of the road'.[10]
32 The plaintiff told Judge Tinney that the charges against him were a complete fabrication. He told him that there was no evidence that he was driving and nor was there any evidence of damage to Ms Macleod's car.[11] His explanation as to why the charges were laid when he was not involved was that it was due to persecution by ASIO and the fact that Ms Macleod was related to a former magistrate, a
Mr Macleod, who had determined a previous proceeding against Mr Goldberg.[12] Mr Goldberg told Judge Tinney that there was no evidence before the magistrate as to who drove the car and that his traffic record had been fabricated. In summary, he said that his defences were that there was no accident; the charges were fabricated due to the intervention of ASIO; and there was no damage to the car.[13]
33 Judge Tinney allowed the plaintiff to make application for leave to appeal his conviction out of time orally. The prosecution opposed the grant of leave on three grounds. First, counsel for the prosecution said that he was instructed by the police that the principal witness, Ms Macleod, had now permanently left Australia to live in the United States. Accordingly, the first defendant said that there would be material prejudice to the prosecution if leave was granted to appeal out of time.
34 The first defendant also submitted that the circumstances were not exceptional because the plaintiff had previously appealed other traffic convictions in the Magistrates' Court to the County Court. It followed that he should have known what he was signing.
35 Thirdly, the prosecution submitted that the offence was a relatively minor one.
36 The circumstances in which an appeal to the County Court against conviction in the Magistrates' Court may proceed out of time are prescribed by s 263 of the Criminal Procedure Act 2009 ('Criminal Procedure Act'). That section provides as follows:**
**37 It is apparent from that section that there are two jurisdictional requirements that must be met before the County Court may grant an extension of time to appeal. Those jurisdictional requirements are that the failure to file the notice of appeal within the required period was due to 'exceptional circumstances' and that the respondent's case would not be 'materially prejudiced' because of the delay. The burden is on the proposed appellant, now the plaintiff, to satisfy the County Court of both those matters. If the County Court is satisfied of both, then the Court has the discretion to extend time. Matters such as the prospects of success may then be relevant to the discretion.
38 Tinney J ruled against the grant of leave to extend time to appeal conviction in respect of the plaintiff's failure to give his name and address after an accident. He noted that the plaintiff's proposed defence was implausible but says that this was not a decisive factor.[14] In relation to the threshold requirements in s 263, he found against the plaintiff on both. He held that there were no exceptional circumstances shown for the failure to file the correct notice of appeal i.e. against conviction. He noted that the plaintiff had signed the notice and the notice was plainly an appeal against sentence and that the plaintiff's explanation for failing to observe that it was an appeal against sentence only was 'difficult to accept' given that the plaintiff had appealed to the County Court against conviction in the past.[15]
40 In relation to the failure to secure the load of which the plaintiff had also been convicted, Judge Tinney accepted the prosecution's submission that the relevant offence was created by the Road Safety Act, not by the Road Safety Regulations. The plaintiff had, however, been charged with and convicted of an offence under the Road Safety Regulations. Accordingly, Judge Tinney set aside that conviction and granted leave to the prosecution to withdraw the charge.[17]**
**41 Order 56 of the 2015 Rules provides the procedural means by which the decision of a lower court may be challenged in this Court by way of judicial review. Although some aspects of his originating motion use the words 'appeal' and 'appellant', in my view the originating motion as a whole and the plaintiff's other written material and oral submissions show that he understands that he is seeking judicial review. In particular, in ground 10 of the originating motion the plaintiff seeks relief by way of certiorari, and in ground 11 he states that the claim is made under O 56 and is for judicial review.
42 Judicial review by way of certiorari is not an appeal on the merits from the decision below. The Court's jurisdiction by way of judicial review is a supervisory jurisdiction that is limited to distinct categories of error. These are error of law on the face of the record; jurisdictional error; contravention of natural justice; or fraud. The High Court in Craig v South Australia[18] described the scope of certiorari as follows (citations omitted):**
Where available, certiorari is a process by which a superior court, in the exercise of original jurisdiction, supervises the acts of an inferior court or other tribunal. It is not an appellate procedure enabling either a general review of the order or decision of the inferior court or tribunal or a substitution of the order or decision which the superior court thinks should have been made. Where the writ runs, it merely enables the quashing of the impugned order or decision upon one or more of a number of distinct established grounds, most importantly, jurisdictional error, failure to observe some applicable requirement of procedural fairness, fraud and 'error of law on the face of the record'.
43 The originating motion sets out ten paragraphs under the heading 'Grounds for Appeal'. As noted, the final two paragraphs specify that the relief sought is in the nature of certiorari and that the claim is made under order 56. The remaining grounds are as follows:
**44 The plaintiff did not confine himself at hearing to the grounds asserted in his originating motion. He also in his written and oral submissions and evidence filed in this proceeding asserts fraud and collusion in relation to the notice of appeal that he signed at Moorabbin Justice Centre on the day of his conviction. He asserts that the notice of appeal before Judge Tinney had been fabricated by Deputy Registrar Nugent at Moorabbin Justice Centre and that this was the result of collusion with the police who were aware on that day that the principal witness against him, Ms Macleod, was leaving Australia permanently shortly after the hearing. Mr Goldberg asserts that the prosecution knew 'at least six months in advance' that Ms Macleod was leaving the country permanently and it was for this reason that the police colluded with Ms Nugent to cause her to issue a fraudulent notice of appeal against the sentence only.[19]
45 The only evidence on which Mr Goldberg relies for this assertion is the face of the notice of appeal. He submits this shows such a degree of error that the only explanation must be the fraud and collusion he asserts. The errors on which he relies in this regard are first that the date stamp on the notice of appeal gives the date as 23 September 2012, when he signed it on 23 September 2014. Further, the printed date is given as '23/09/201' which is not a date.
46 The plaintiff asserts in his written material that he raised an allegation of fraud before Judge Tinney, but in his oral submissions before me accepted that he did not raise these issues of incorrect dates. He told me in his oral submissions that he only came to his conclusion that there must have been fraud after the hearing before Judge Tinney. He also says that he thought that the judge himself would notice the errors on the notice of appeal.
47 I add for completeness that the transcript of the hearing at the Magistrates' Court is not before me and nor is any evidence as to what the prosecution did or did not know in relation to the availability of Ms Macleod after the hearing at the Magistrates' Court, other than the assertions by the plaintiff that the prosecution knew that she was leaving immediately after that hearing. The first defendant asserts in his written submissions that no arrangements had been made to ensure the attendance of witnesses at the hearing before Judge Tinney as the notice of appeal did not seek to contest the finding of guilt.[20] This particular assertion is not supported by any evidence, although it may perhaps be said to be implicit in the submissions put by the prosecution before Judge Tinney.**
48 The first defendant seeks that the originating motion be summarily dismissed pursuant to s 62 of the Civil Procedure Act 2010 ('CPA'). Section 62 of the CPA provides:
A defendant in a civil proceeding may apply to the court for summary judgment in the proceeding on the ground that a plaintiff's claim or part of that claim has no real prospect of success.
49 The first defendant contends that the proceeding has no real prospect of success because:
The Plaintiff has not provided or referred to any substantive evidence of:
(a) a denial of natural justice; or
(b) any error which is amendable to relief in the nature of certiorari.[21]
50 Although this application for judicial review has its origin in a criminal prosecution, an application for judicial review is a civil proceeding. Accordingly, the first defendant is at liberty to seek to invoke s 62 of the CPA. The sections that follow s 62 of the CPA set out the powers of a court on such application. Section 63 confers the jurisdiction on a court to give summary judgment if satisfied that, in the case of an application by a defendant, the claim or part of the claim has no real prospect of success. Section 64 empowers a court to order that the civil proceeding proceed to trial even if the Court considers that the claim has no real prospect of success where the Court is satisfied that the proceeding should not be disposed of summarily because:
(a) it is not in the interests of justice to do so; or
(b) the dispute is of such a nature that only a full hearing on the merits is appropriate.
The test for summary judgment under s 63 of the Civil Procedure Act 2010 is whether the respondent to the application for summary judgment has a 'real' as opposed to a 'fanciful' chance of success.[23]
52 The Court held that the test was 'to some degree a more liberal test than the "hopeless" or "bound to fail" test that previously applied'. Nevertheless the Court by majority held that:
It must be borne in mind that the power to terminate proceedings summarily should be exercised with caution and thus should not be exercised unless it is clear that there is no real question to be tried...[24]
53 It follows that the first defendant must show that there is no real question to be tried to succeed in his application for summary judgment. If that is shown, then the plaintiff may seek to show that, nevertheless, for one of the reasons stipulated in s 64 his claim should proceed to a full hearing. I now apply these principles to the application.
54 The grounds outlined in the originating motion and the further grounds elaborated by the plaintiff in his written and oral submissions are confined to his challenge against the refusal to allow him to appeal his conviction. The plaintiff confirmed at the hearing that he makes no distinct challenge to the reduced sentence imposed on him by Judge Tinney.
**55 Ground 1 asserts that Judge Tinney determined the application before him according to ASIO instructions and so beyond jurisdiction.
56 If this assertion was made out, then clearly it would be a basis for relief by way of certiorari quashing the decision reached by Judge Tinney. On an application for summary judgment, the question is not whether or not the ground is made out but whether it has any prospect of success. As held by the Court of Appeal in Lysaght, a claim will have no real prospect of success if its prospects are fanciful. In my view, that is the case in relation to ground 1, and, to the extent an assertion that the prosecution was at the direction of ASIO permeates all the grounds, they also fail on that basis.
57 The plaintiff has made similar assertions in previous proceedings that other charges against him have been laid or prosecuted at the direction of ASIO. His assertions that he was the subject of persecution at the hands of ASIO were exhaustively considered by the Court of Appeal in Goldberg v Laughlin and the County Court of Victoria.[25] In that case the President of the Court of Appeal, Maxwell P, noted that if Mr Goldberg seriously asserts that his activities have attracted inappropriately the attention of the national security agency, then his remedy is to take those complaints to the InspectorGeneral of Intelligence and Security. Maxwell P noted that one of the purposes of his remarks was to:**
...place on the public record the fact that Mr Goldberg makes these serious (but I think groundless) allegations against ASIO, and that he has been told that he should raise his concerns, with appropriate details, with the Inspector-General. As I have said, that is the statutory office set up to ensure that members of the community who have concerns about any of the intelligence services are able to have their concerns examined.
Unless Mr Goldberg takes that step, he cannot expect these assertions to be given any credence whatsoever in any future Court proceeding. If he does not pursue that avenue of complaint, it will demonstrate that he prefers to make these assertions in forums like this one which, plainly enough, are unable to investigate them.[26]
**58 Maxwell P then noted that an application that Mr Goldberg be declared a vexatious litigant and applications for summary dismissal might be expected if Mr Goldberg continued to make such allegations.
59 Mr Goldberg has not in this proceeding or before Judge Tinney provided any evidence other than bare assertion to support his allegation that he was prosecuted at the instance of ASIO. In the absence of any evidence to support it, in my view the allegation has no real prospect of success. Subject to the question of the s 64 CPA discretion, I would dismiss the application for judicial review on ground 1 summarily on that basis.**
**60 Ground 2 asserts a denial of natural justice because there was no evidence on which the Judge could have reached his conclusion. This is a conflation of two distinct concepts- denial of procedural fairness on the one hand, and reaching a conclusion in the absence of any evidence to support it. I will consider Ground 2 as asserting there was no evidence on the basis of which Judge Tinney could have reached his conclusion.
61 If established, this is an error of law, and if the error appears on the face of the record, is a basis for relief by way of certiorari. For the purpose of determination of error of law on the face of the record, the record includes the statement of reasons given by Judge Tinney and, to the extent those reasons refer to evidence or submissions, that evidence and those submissions also become part of the record.[27]
62 Ground 8 of the originating motion asserts that the decision made by Judge Tinney was unreasonable in the sense that no reasonable judge could come to such a conclusion. A decision will be unreasonable in this sense if there is no material to support it. Thus this Ground is similar to the nub of Ground 2. For that reason,
63 In my view, the plaintiff has no real prospect of success in relation to either Ground. There was material before Judge Tinney on the basis of which his decision was plainly open to him. As discussed further below, that information did not need to be in the form of sworn evidence. Judge Tinney was told by the prosecution that the principal witness against the plaintiff had left the jurisdiction permanently, and it is apparent from the plaintiff's submissions in this proceeding that he himself accepted that to be the case. The Judge also had before him a notice of appeal which gave as the sole ground of appeal that the punishment is excessive. There is no reference in the notice of appeal to the plaintiff not being guilty of the offence. The Judge was told that the plaintiff had previously appealed against other convictions and so would have been familiar with the procedure of appealing against conviction. The plaintiff told him of the circumstances in which he signed the notice of appeal, although as he now concedes, he made no submission at that time that the notice of appeal had been fabricated. In my view, the plaintiff has no real prospect of success in establishing that it was not open to Judge Tinney to conclude that on this material the jurisdictional requirements set out by s 263 of the Criminal Procedure Act had not been met.
64 For these reasons, subject to the question of the s 64 CPA discretion, I would grant summary dismissal in respect of Grounds 2 and 8.**
Ground 3: not being permitted to sit at the bar table
**65 Ground 3 of the originating motion asserts breach of procedural fairness by Judge Tinney in refusing to allow the plaintiff to speak into the microphone or to sit at the Bar table during the hearing. The ground also asserts that the plaintiff could not hear his Honour during the hearing and that his Honour made an angry remark to him.
66 The first defendant has exhibited to the affidavit of Natalie Vuong the DVD of the hearing before Judge Tinney. I was unable to open this DVD for the hearing on 8 May 2015. Subsequently, I made arrangements to view the DVD on other Court equipment. The DVD shows that the plaintiff was not seated at the Bar table for any of the hearing. He had seated himself prior to Judge Tinney coming into the court room in the body of the court room, in the first or second row of seats behind the seats at the Bar table. Robed counsel for the first defendant was seated at the Bar table.
67 When the plaintiff was first addressed by Judge Tinney the plaintiff asked if he could come to 'the bench' and his Honour told him to address him 'from there'.[28] The plaintiff did not ask Judge Tinney again in the course of the hearing if he could move to the Bar table, although he did use the Bar table to rest some papers on when directly addressing his Honour. At those times the plaintiff stood behind the seat pushed into the Bar table. He did not seek permission to stand in that location, and his Honour did not invite him to do so but did not express any objection.
68 It is apparent from the DVD that the plaintiff had a number of papers that he had on seats either side of his seat in the body of the court room. On one occasion in the course of discussions about sentence the plaintiff said that he could not hear what Judge Tinney had said and came to stand behind the Bar table in the location I have described already. He then continued to address Judge Tinney from that location, but had to return to his seat in the body of the court room to get some papers. After the plaintiff completed his submissions on sentence he sat down again in the seat he had occupied in the body of the court. He then stayed there for the duration of the hearing.
69 As I noted earlier, it is not necessary for the first defendant to show that this ground is hopeless or bound to fail to obtain summary dismissal in respect of it. What the first defendant must show is that the ground has no real prospect of success, 'real' being opposed to 'fanciful'.
70 In my view, the first defendant has not shown that this ground of the originating motion satisfies that test. I do not currently express an opinion as to its prospects of success other than to say I do not think they could properly be described only as fanciful. It is apparent from the DVD that the plaintiff was placed at some disadvantage in being required to leave his papers on seats in the body of the court room while addressing the judge from behind the Bar table without objection. When he first requested that he be able to move forward, Judge Tinney refused that request. The plaintiff was thus arguably placed at a disadvantage to counsel for the first defendant, in that he was not able to be seated at the Bar table and have his papers directly in front of him.
71 In addition to this disadvantage, the plaintiff submitted that it was also humiliating to be refused permission to sit at the Bar table and that this had never before occurred in proceedings in which he had represented himself. These are all matters that I consider should be argued in full at trial on this ground. Mr Castle for the first defendant submitted that no breach of procedural fairness could be established by the refusal of Judge Tinney to allow the plaintiff to be seated at the Bar table because leave is required for a person who is not a legal practitioner to sit at the Bar table. He did not have with him any authority for that proposition. Again, I consider that the test as to what procedural fairness requires for an unrepresented defendant in an appeal from the Magistrates' Court in the County Court in this regard should be argued fully, and if possible with authority.
72 For these reasons I will not grant summary dismissal in respect of this ground.**
**73 This Ground is couched in the language of breach of natural justice, in that it asserts that Judge Tinney 'ignored' submissions put by the plaintiff about the merits of the prosecution case in the Magistrates' Court and ASIO involvement. It is, however, not correct that Judge Tinney ignored what the plaintiff said about these matters. On the contrary, he expressed the view that the plaintiff's proposed defence lacked merit[29]. Clearly then, he considered what the plaintiff had said, but did not agree with it. Failure to accept a submission is not a breach of natural justice. Thus, in substance Ground 4 challenges the assessment by Judge Tinney of the plaintiff's submissions. Judicial review is not available to challenge such a conclusion on the merits.
74 In any event, Judge Tinney's assessment of the plaintiff's proposed defence was not determinative, as he himself noted.[30] The strength or otherwise of the prosecution case and proposed defence, and so the prospects of success on appeal against conviction, would become relevant only if the jurisdictional requirements for leave to appeal out of time stipulated by s 263 of the Criminal Procedure Act were first met. Prospects of success would then be relevant to the exercise of the discretion to grant or refuse the extension of time.[31] Judge Tinney considered that those jurisdictional requirements were not met, and refused the application for leave to appeal conviction out of time on that basis.
75 Ground 4 does not raise matters that are properly the subject of an application for judicial review, and, in any event, the merits of the prosecution case were not determinative before Judge Tinney because the jurisdictional requirements to appeal out of time were not met. For these reasons, subject to the question of the s 64 discretion, I would grant summary dismissal in respect of Ground 4.**
Ground 5: relationship between withdrawal of one charge and conviction on the other
**76 Ground 5 asserts that Judge Tinney made an error of law in that the withdrawal of the charge of failing to properly secure his load should necessarily have meant that there was no accident and accordingly he should also have been acquitted of the first charge of failing to provide his name and address.
77 I accept the submission of the first defendant that this ground relies on a misconception. The prosecution withdrew the charge of failing to secure the load not because it withdrew its assertions of fact or that no such charge could have been laid. The prosecution withdrew the charge because it was incorrectly laid as arising under the Road Safety Regulations, when in fact it arose pursuant to a provision in the Road Safety Act. The provision in the regulations did not create the offence; only the provision in the Road Safety Act did that. By the time the matter came before Judge Tinney, the prosecution was out of time to lay the proper charge.
78 It follows that the charge of failure to properly secure the load was withdrawn for technical reasons, and not for any substantive reason that would require the withdrawal of the charge that the plaintiff failed to give his name and address.
I accept the first defendant's submission that this ground has no real prospect of success and, subject to the s 64 discretion, would grant summary dismissal in respect of it.**
Grounds 6 and 7: failure to apply rules of evidence
**79 Ground 6 asserts that Judge Tinney failed to apply a rule of evidence, on the basis that he relied on unsworn evidence being the statement of facts attached to the charge. This Ground misunderstands the task before Judge Tinney. He did not hear the prosecution case again, as would have occurred on a conviction appeal. No conviction appeal was heard because such an appeal was out of time, and Judge Tinney refused leave to extend time. The application to extend time was determined not on the basis of the charge sheet, but on the basis that the requirements of s 263 of the Criminal Procedure Act were not met.
80 Ground 7 asserts error in that Judge Tinney reached his conclusion without obtaining sworn evidence from the plaintiff.
81 It is plain from the transcript that the hearing before Judge Tinney proceeded in a relatively informal way. The prosecution was aware that the plaintiff wished to appeal against conviction, notwithstanding the content of his written notice of appeal. The plaintiff says that the associate to the Judge approached him before the hearing and also asked if he wished to appeal against conviction or sentence, and he told her he wished to appeal against conviction. One assumes that this message was conveyed to the Judge. It follows that all participants were aware from the commencement of the hearing that what the plaintiff wished to do was appeal against conviction, and not sentence, and that he was out of time to do so.
82 The plaintiff did not make any written application for leave to appeal out of time against his conviction. He did not give any sworn evidence in support of such an application; did not seek to do so and nor was he invited to do so by the Judge. Counsel for the prosecution did not seek to call any evidence in opposition to the application, or in support of his submissions in opposition. I do not consider that the plaintiff has any real prospect of success in his assertion that determining the application against him without sworn evidence from him was an error of law for the following reasons.
83 Section 255 of the Criminal Procedure Act provides that appeal on conviction and sentence, or sentence alone, is commenced by the filing of a written notice of appeal. Section 263 provides that a notice of appeal filed after the end of the appeal period is deemed to be an application for leave to appeal. Thus, the section contemplates a written application for leave to appeal out of time. It does not, however, require that, or exclude an oral application. Judge Tinney allowed the plaintiff to make the application orally. This was an efficient way to proceed, and in the interests of all parties on the day.
84 I consider that the transcript shows that a fair opportunity was afforded to the plaintiff to make his application. The Judge did not require either the plaintiff or the prosecution to give sworn evidence to substantiate what they said respectively in support, or in opposition to, the application. Proceeding thus informally was within the procedural discretion of the Judge, and an efficient way to proceed. Judge Tinney rejected the application for leave to appeal out of time but this was not because the evidence in support of it was not given on oath. He rejected the application because he did not consider the plaintiff's explanation, accepted at face value unsworn, to constitute exceptional circumstances. The plaintiff did not deny the submission put by the prosecution that he had previously appealed against conviction in the Magistrates' Court and so would be familiar with the form of the notice of appeal. He said he was in too much of a hurry and too distressed to realise what he was signing. Similarly, Judge Tinney did not require the prosecution to put on oath the assertion that the principal witness had left the jurisdiction permanently. If the plaintiff contested this allegation, this might give some force to his challenge to Judge Tinney accepting it at face value. It is plain, however, from all his material in this proceeding that he accepts as correct that Ms Macleod had left the jurisdiction.
85 I do not consider that there is any real prospect of success to any of the challenges the plaintiff makes to the manner of the hearing before Judge Tinney on the basis that there was no sworn evidence on which he could reach his conclusion. Subject to the s 64 discretion, I would summarily dismiss the proceeding in respect of grounds 6 and 7.**
86 Ground 9 is a rolled up allegation of denial of natural justice. It does not add to the specificity of Ground 3, and is capable of also referring to allegations of denial of natural justice that are liable to be summarily dismissed, and so potentially causing confusion if it remains. Accordingly, subject to the s 64 discretion, I would summarily dismiss it.
**87 I do not consider that the plaintiff has any real prospect of success in establishing that the Deputy Registrar at the Magistrates' Court fraudulently caused him to sign a notice of appeal that was directed to sentence only, in collusion with the police who were aware that the principal witness was leaving the jurisdiction permanently.
88 The only evidence on which the plaintiff relies to substantiate this allegation is the face of the notice of appeal itself, coupled with his assertion in oral submissions before me that he heard the informant and witness discussing the fact that she was leaving for overseas immediately after the hearing at Moorabbin Magistrates' Court on 23 September 2014. Even if it is assumed that the prosecution were aware on 23 September 2014 that the principal witness would be unavailable thereafter for a rehearing on the merits, there is absolutely no evidence other than Mr Goldberg's suspicion to link this to the notice of appeal that he was given and signed. True it is that there is are errors in the date stamp on the notice of appeal and on the printed date. These errors do not, however, of themselves show any plausible connection with the alleged fraud or collusion. They are completely capable of innocent explanation, such as a printing error or human error. There is no evidence at all that the plaintiff has adduced to show any communication between the informant and the Deputy Registrar, let alone that any such communication was such as to induce her to produce an incorrect notice of appeal.
89 In the absence of any evidence of this type, I do not consider these grounds to have any real prospect of success. If the plaintiff sought to amend the originating motion to add this ground, I would refuse that leave. For the avoidance of any doubt,
I would also summarily dismiss these grounds, unless pursuant to the s 64 discretion they should proceed to a full hearing on the merits.**
90 I consider that the first defendant has shown that all grounds in the originating motion, other than Ground 3, and the further grounds elaborated by the plaintiff in his written and oral submissions and affidavits, have no real prospect of success. It follows that they are liable to be summarily dismissed. Pursuant to s 64 of the CPA, the Court has a discretion nevertheless to refuse summary judgment if satisfied that the originating motion should not be disposed of summarily because:
(a) it is not in the interests of justice to do so; or
(b) the dispute is of such a nature that only a full hearing on the merits is appropriate.
**91 I do not consider that the discretion to refuse summary judgment should be exercised in the case of any of the grounds that I have found have no real prospect of success. The discretion to refuse summary judgment is on occasion exercised in a proceeding where further interlocutory steps, for example, discovery, may reveal further relevant information. Nothing of that sort is suggested in this case and no other reason is put forward for the exercise of that discretion.
92 Given the suspicions that the plaintiff holds as to the involvement of ASIO and his allegations of fraud and collusion in relation to the notice of appeal, I appreciate that he may consider that the dispute is of such a nature that only a full hearing on the merits is appropriate. His allegations are very serious, but that does not in itself justify the exercise of the discretion to allow the matter to go for further hearing. On the contrary, although the allegations are very serious the plaintiff has no real evidence to support them and has not indicated that there are avenues that he proposed to utilise to obtain such evidence.
93 Given that Ground 3 survives the summary dismissal application, I have also given consideration as to whether that is a reason for the originating motion as a whole to be heard fully at trial. I do not consider that to be the case. The purpose of the application for summary dismissal is to remove grounds that have no real prospect of success and would otherwise take up unnecessary Court time. It would defeat that object to allow those grounds to go forward merely because one ground survives the application for summary dismissal.
94 For these reasons, I will dismiss all grounds in the originating motion other than Ground 3, and will also dismiss the further grounds advanced orally.**
**95 As the first defendant is legally represented, I will ask the first defendant to draw orders reflecting these reasons, provide them to the plaintiff for comment and then to the Court. If the parties are unable to agree on the orders I will hear them further.
96 The orders should include orders listing Ground 3 for trial. As I have heard the parties in the summary dismissal application and have viewed the DVD of the hearing before Judge Tinney, the most efficient course would for me to seek a referral pursuant to r 77.05 of the 2015 Rules to hear the full appeal on Ground 3.
I will hear the parties further if they oppose that course.
97 I have not in these reasons determined the stay application made by the plaintiff.
I will hear the parties if the stay is opposed. If not, an order staying the sentence imposed by Judge Tinney until the hearing and determination of the appeal should also be included in the proposed orders.**
[1] Affidavit of Natalie Vuong sworn 27 March 2015 at [23].
[5] Affidavit in Response to Summons and Affidavit of Natalie Vuong sworn 20 April 2015 at [23]-[24].
[6] See r 8.07 of the 2005 and 2015 Rules and the commentary thereto in Civil Procedure Victoria.
[7] Transcript of the proceeding before Judge Tinney, being exhibit 'OPP-13' to the affidavit of Natalie Vuong sworn 27 March 2015, (henceforth T) at p 7, line 22-23.
[10] Exhibit 'OPP-9' to the affidavit of Natalie Vuong sworn 27 March 2015.
[18] [1995] HCA 58; (1995) 184 CLR 163 at 175.
[19] Short submission dated 4 May 2015 by the plaintiff at paragraphs 7 to 9.
[20] First defendant's written submissions at paragraphs 8 and 10.
[21] Application for summary judgment filed 27 March 2015.
[27] Section 10 Administrative Law Act 1978; Sidebottom v County Court of Victoria [2001] VSC 18; (2001) 117 A Crim R 574.
[31] R v O'Keefe [1979] VicRp 1; (1979) VR 1, at 6.
Goldberg
Stocker and Anor [2016] VSC 20
(1980) 144 CLR 13
(1995) 184 CLR 163