Plaintiff v First Defendant

2 The plaintiff was a self-represented litigant until recently. He has now availed himself of a duty barrister under the Bars' Pro Bono Scheme. The second and third defendants are unrepresented. In accordance with the usual practice, the first defendant has notified the court that it will abide by the decision of the court, in accordance with the decision in the R v Australian Broadcasting Tribunal; Ex parte Hardiman & Ors[1].

3 The short background to this matter is that Mr Eiszele and Ms Phelps, the second and third defendants respectively, were applicants in the Magistrates' Court for intervention orders against the plaintiff under the Personal Safety Intervention Orders Act 2010 ('the Act'). The plaintiff also applied for intervention orders against the second and third defendant. The second and third defendants were successful in obtaining intervention orders against Mr Ness, but Mr Ness was unsuccessful in obtaining cross orders.

4 Mr Ness has appealed the magistrate's decisions to the County Court. The County Court appeal came before her Honour Judge Cotterell for directions on 25 January 2016. On that day, Mr Ness applied to her Honour that his appeals be heard separately so that he will have the opportunity of crossexamining each defendant in the absence of the other. Her Honour's refusal of that application is the subject of this review.

5 I emphasise to the parties the limits of an Order 56 proceeding in relation to the nature of certiorari. This is not an appellate procedure that countenances some form of general review of Judge Cotterell's order, nor may I substitute another order which I consider should have been made. . The jurisdiction of this court in relation to the impugned directions hearing is supervisory. It follows that the control that is exercised is limited to ensuring that her Honour did not exceed her jurisdiction, and that she observed the law in reaching her decision.[2] The plaintiff will only succeed if he can establish jurisdictional error, a failure to observe some applicable requirement of procedural fairness, or fraud or error on the face of the record.

6 In his originating motion, the plaintiff sets out his claim. I reproduce it in full:

I am seeking a judicial review certiorari of a decision made by Judge Cotterell on 25 January 2016 at the County Court Melbourne. The matter pertains to intervention orders made at the Magistrates' Court being appealed at the County Court, these case numbers being: Ness v Eiszele # AP151934 & AP151935, and Ness v Eiszele # AP151936 & AP151937. I believe the decision at the interim hearing by Judge Cotterell not to accept my request to separate the cases of Eiszele and Phelps has caused an unfair bias. It contravenes the oath of the judge to allow a fair trial as the partner, Eiszele or Phelps, are witnesses for each other. This Act takes away my legal right to question both witnesses separately and inhibit their previous behaviour of collusion.

7 Section 45 of the Personal Safety Intervention Orders Act 2010 provides as follows:

(1) Any number of applications for personal safety intervention orders may be heard together if the court thinks fit.

(2) The decision under subsection (1) to hear a number of applications for personal safety intervention orders together may be made-

(a) on the application of the applicants or the respondents; or

(b) on the court's own initiative if the court considers it in the interests of justice to do so.

8 I have read a full transcript of the directions hearing. None of the parties were represented. Allegations and counter allegations were aired freely and, it seemed me, escalated exponentially as the hearing progressed. Within the quagmire of accusations, Mr Ness articulated his position at pp 45[ff]. I reproduce his application:

MR NESS: What I'm seeking, your Honour, is to have those separated.

HER HONOUR: They all relate to the same facts.

MR NESS: Yes, your Honour. Your Honour, I'm trying to express

MR EISZELE: No.

MR NESS: Can I? There is a specific reason. I'm trying to get to that.

HER HONOUR: Okay.

MR NESS: In a clear way, until that time, Ms Phelps was only a witness for Mr Eiszele in his sole application. Without a mention or directions or any consultation, Magistrate McKenna, arbitrarily conjoined all the cases. As Mr Eiszele and Ms Phelps are both witnesses for each other, the conjoining of these cases unjustifiably stole my inalienable right to question those witnesses separately, thereby causing an error. It condoned subsequent collusion and the injustice of a biased error. So I reserve the right to answer allegations and to put my case and I reserve the right and I believe it is my inalienable right to question those witnesses separately.

Because they are witnesses for each other, that takes away my right and what I am seeking is because the case numbers for Ms Phelps

HER HONOUR: Why does it take away your right?

MR NESS: Because if they are present as witnesses for each other that means I am not able to have the party excused during the time that I am asking questions. I have a right to ask the questions to both parties without both parties listening. Now, in the previous hearings, and I have heard evidence which will substantiate that both parties were interfering at the witness box and the Bench, colluding prior to and in part of the answers. So they have a history which I can prove that this is their behaviour.

Now, I'm not suggesting that the magistrate on the day of the appeal will allow that but what I'm saying is there is a repeated history despite clear instruction and what I'm saying is that - - -

HER HONOUR: The judge will not allow that to happen.

9 Her Honour said to Mr Ness that he had not provided, '... good enough reason for (the hearings) to be separate'[3]. Her Honour provided the following brief reasons for this conclusion::

In the meantime, because I don't think it's appropriate to separate these two matters because they're each involved in the matters, a lot of them are joint matters, they're giving evidence about the same thing and that unfortunately is the way these matters are run, I would suggest, perhaps, that one of them go out while the other is giving evidence but there is no way I could force them to do that. That may be something they might want to consider. But whatever happened, the person who heard the matter would take into account the fact that they have heard each other's evidence, and when they're assessing the truth of that evidence, so it's a matter that the judicial officer will take into account. But that said, I'll adjourn this matter until the 27th for that hearing[4]

10 It can be seen, essentially, that her Honour denied the application because she considered it to be expedient to hear the matters together, given the allegations and cross-allegations involve the same personalities along with certain other aspects. Further, her Honour took the view that a forensic disadvantage to Mr Ness could be dealt with by the judge asking either Mr Eiszele or Ms Phelps to leave the court while the other gave evidence. Should the requested party refuse, that was a matter the hearing judge could take into account when considering the weight the Court gave to the evidence of both Mr Eiszele and Ms Phelps.

11 In my view the plaintiff has not established a basis upon which I should exercise the supervisory jurisdiction of this court. Section 45 of the Act empowers her Honour to hear these appeals together, and I can discern no other basis to conclude jurisdictional error. The transcript demonstrates, in my view, that her Honour acted with great patience and fairness when confronted with a fairly volatile directions hearing.

12 To the extent that the plaintiff uses the word 'bias' in his originating motion, and to the extent that Mr Gronow, in his able submissions this morning, used the phrase 'procedural fairness', it seemed to me this is a complaint that the applicant may be denied procedural fairness at the hearing of the appeals. It does not seem to me that what is complained of is any denial of procedural fairness at the directions hearing itself.

13 The plaintiff argues that he will be forensically disadvantaged at the appeal hearing if one opponent remains in Court while the other gives evidence. While it is possible that some forensic disadvantage may eventuate, it is by no means inevitable. The second and third defendants to this application may take up her Honour's pragmatic suggestion that one leaves court while the other gives evidence, thereby removing the prospect of forensic disadvantage that the plaintiff apprehends he may sustain.

14 At any event, the complaint that is made about procedural fairness is a prospective one, in the sense that the plaintiff to these proceedings is concerned about something that may happen in the future.. The transcript simply does not bear out that there was any denial of procedural fairness at that directions hearing and I cannot discern any other error of law on the face of the record.

[1] [1980] HCA 13; (1980) 144 CLR 13.

[2] See O'Dea v Magistrates' Court of Victoria (VSC, Gillard J, No 6198/98, 20 July 1998, unreported, BC9804998); Kuek v Wellens [2000] VSC 326; BC200005625; Stewart v Building Practitioners' Board [2001] VSC 349; BC200105870; Kay v DPP (Cth) [2003] VSC 264; BC200303925; Western Truck Towing Pty Ltd v Magistrates' Court of Victoria [2013] VSC 224; BC201302160; Gill v Gill [2014] VSC 250; BC201404033; Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163.

[3] Transcript of Proceedings, Franklin Ness v John Eiszele & Anor (County Court of Victoria, AP-15-1934, Judge Cotterell, 25 January 2016) ('County Court Transcript'), 53.