Stefanovski v Magistrates' Court of Victoria [2004] VSC 313

5. On 11 June 2004 Mr Stefanovski issued an originating motion seeking judicial review of the Magistrate's decision. The relief or remedy sought in the originating motion was said to be as follows:

"1. Review of the decision and/or orders made by the Magistrate on the grounds that 1.1 There is a denial of natural justice to the Plaintiff in the matters of S00630021 and S00629854 in the Magistrates' Court of Victoria at Sunshine. 1.2 The Plaintiff is denied his natural law right to prosecute and lay a charge against the Defendants: in the aforesaid matters, which Defendants are Stevan Volf and Phillip Paine. 2. The Plaintiff seeks a judicial review of the intervention by the Department of Public Prosecutions in the matters of S00630021 and S00629854. 3. The Plaintiff seeks a judicial review of the discontinuance of the matters of S00630021 and S00629854 by the 1st and 2nd named Defendant and by the Department of Public Prosecutions and where upon so intervening to then discontinue those matters. The Director of Public Prosecutions denied the Plaintiff the right to prosecute, and without the opportunity to challenge the assessment of the matter. 4. That the decision of the Magistrate involved an error of law. 5. The Magistrate's decision to not consider and accept any facts and/or evidence by the Plaintiff. 6. That there was no evidence or other material to justify the making of the decision. 7. The Plaintiff is aggrieved by the decision of the Magistrate because the Plaintiff has been denied natural justice and incurred court costs pursuant to the decision. 8. That the charges brought upon the Defendants, Stevan Volf and Phillip Paine be set for mention in the Magistrates' Court."

The plaintiff also sought a number of additional orders including an order that the orders made by the Magistrate, the second defendant in the originating motion, on 15 April 2004 be "quashed".

10. In giving my oral reasons on 13 August 2004 for the orders I proposed to make, I initially proceeded on the mistaken basis that the plaintiff's original application was made under O.58 and not O.56 of the Supreme Court (General Civil Procedure) Rules 1996 ("the Supreme Court Rules"). When this was pointed out to me, I indicated that I would need to make some changes to my reasons when revising them for publication but that my decision on the merits of the application before me had not changed.

13. The matter came before me on a reference from a Master.[1] The application to the Master was one by the Director, the third defendant in the originating motion, seeking judgment for the third defendant against the plaintiff under r.23.01(1) or r.23.03 of the Supreme Court Rules.

16. From what I was told by the parties, I understood that the Master had dismissed that part of the plaintiff's claim which sought review of the decision by the Director to take over the conduct of the two informations and to discontinue them and the decision by the Magistrate accordingly striking out both informations, on the ground that that part of the plaintiff's claim was plainly hopeless. On the other hand, I understood that the Master had ruled that the claim for review of the Magistrate's order for costs against Mr Stefanovski was not plainly hopeless and that he had, in the circumstances, decided to refer that part of the claim to me.

19. I further understood that Mr Stefanovski, who appeared in person, was dissatisfied with the Master's dismissal of part of his claim. In order to deal with all of the matters at the one time, I indicated that I would treat Mr Stefanovski as having issued a notice of appeal and that I would hear the appeal from the Master's dismissal at the same time as the other part of the application which had been referred to me.

22. I turn first to the issue referred to me, namely, whether the application by the third defendant for judgment in respect of the plaintiff's claim for review of the Magistrate's order for costs should succeed. A transcript of the hearing before the Magistrate was an exhibit to an affidavit of the plaintiff. From that transcript it appears that the following occurred when Mr Stefanovski was asked whether he wished to oppose the application by the defendants for costs against him. Mr Stefanovski indicated to the Magistrate that he was aggrieved by the circumstances, that he was a victim of a crime, that the relevant police officers were acting criminally, and that by his conduct the Director of Public Prosecutions was aiding and abetting that crime. He told the Magistrate that he was being denied natural justice. When the Magistrate brought him back to the question of costs, Mr Stefanovski said to the Magistrate that it was the Director who had intervened and that he should bear the costs. There was some discussion then about the extent of the costs and how they had been calculated. The Magistrate then asked counsel for the Director as to whether, the Director now having taken over the matter, the costs should be awarded against the Director. It was submitted that that was not appropriate, that it was Mr Stefanovski who had commenced the proceedings and that no costs should be awarded against the Director. Counsel for the defendants then submitted that s.131 of the Magistrates' Court Act 1989 gave the Magistrate the broadest of discretion in relation to costs and referred the Magistrate to the decision of Smith J in Leigh v Hodgkinson[2]. The facts in that case were similar to the facts in the present case. The Commonwealth Director of Public Prosecutions ("the DPP") had taken over criminal proceedings brought by Mr Leigh against four police officers. He sought an order that the charges be struck out. The Magistrate made an order for costs against Mr Leigh. The matter came before Smith J by way of appeal on a question of law which was in the following terms:

"(a) Did the magistrate err in awarding costs against the appellant after the Director of Public Prosecutions had - (i) taken over the prosecution; and (ii) declined to carry it on further as permitted by s.9(5) Director of Public Prosecutions Act 1983 (Cth)? (b) Was the magistrate wrong in failing to distinguish between periods when the appellant was pursuing the prosecution and other periods?"

26. The matter was argued on the basis that the Magistrate in that case had not taken into account relevant considerations, such as the merits of the proceedings. Smith J decided that, because no evidence was given as to the reasons of the DPP for discontinuing the proceeding, one could not conclude that the decision had not been made on public interest grounds, even though there might have been merit in the prosecution. If that were the situation, his Honour said, then the question would arise whether the DPP on behalf of the community should bear the cost and not the lay informant. His Honour continued:

"It may have been assumed that the DPP's decision was made on the basis that the prosecutions had no merit. While that may well be so for her Worship to base her decision on such an assumption would have been to assume the existence of an opinion or a fact of which there was no evidence. She would also have determined the issue on the basis of the latter's opinion, an opinion of a party to the proceedings that was not tested."

"It seems to me that there was no relevant material before the magistrate which would have justified the decision made to make Mr Leigh liable, not the DPP, and accordingly the application of the defendant should have failed and the order against Mr Leigh should not have been made."

32. The submission based on Leigh v Hodgkinson that was made to the Magistrate in Mr Stefanovski's case, as recorded in the transcript of the proceedings, did not give any details of his Honour's reasoning. All that was said to the Magistrate was that his Honour had referred to the Magistrate's statement that the DPP had stepped in with lofty motives and assessed the material quickly and expeditiously and that she had decided that costs should not be ordered against it. The Magistrate was also told that Smith J had referred to s.131 of the Magistrates' Court Act 1989 being in the broadest terms, and the present case being within the criteria referred to in Bischof v Adams[3].

35. It is not clear from the transcript whether or not the Magistrate had the opportunity to peruse the decision in Leigh, although the transcript records that there was a long pause after the Magistrate thanked counsel for the submission that I have just referred to. Her Worship then went on:

"Yes, well, Mr Stefanovski has brought the proceedings. The Director of Public Prosecutions has intervened and withdrawn the charges, having found they had no merit. Given the broad discretion to award reasonable costs under s.131 of the Magistrates' Court Act, and given the decision of His Honour Mr Justice Smith in Leigh v Hodgkinson, I am prepared to award the costs which I regard as reasonable in the circumstances ..."

39. It seems to me that there is an arguable question about whether the plaintiff might succeed in his claim for review of the Magistrate's order for costs. Whilst I do not have to decide the matter, I should give some indication of why I have reached that conclusion. It seems to me that the Magistrate, as a result of the way in which Leigh's case was presented to her, may not have properly understood the purport of that decision, which on one view should have led to her not making an order for costs against Mr Stefanovski, but that is a matter for full argument in due course. Accordingly, there is a real question, in my opinion, whether the Magistrate took into account all relevant considerations in making her decision on costs. Therefore, I am not prepared to give summary judgment for the third defendant on this part of the claim.

42. I return then to that part of the plaintiff's claim which the Master dismissed. As previously stated, I gave Mr Stefanovski leave to appeal from that decision. Mr Stefanovski said that the decision of the Magistrate should be quashed because it was based on s.22(1)(b)(ii) of the Public Prosecutions Act 1994, which he said was void. He complained that the section left open the opportunity to deny to him his right to have the matters heard; it gave the Director of Public Prosecutions power to take over the prosecution and do with it as he chose; and that when the Director takes over a matter, if he so chooses he can act without regard to matters being heard in a court of law with the evidence and so forth. Mr Stefanovski argued that that section is void because it means that the decision of the Director of Public Prosecutions cannot be challenged and that no provision exists to compel the Director to discuss or glean the facts of the matter from the informant before a decision has been made; it provides for arbitrary dismissal of matters without due process; and it is said that the Director of Public Prosecutions in acting in that way has acted as a judicial authority. When I asked Mr Stefanovski on what basis the section, whatever effect it has, is invalid, he referred me to the Australian Constitution. He relied on s.51(xxiv) which reads:

"The Parliament shall, subject to this Constitution, have power to make laws for the peace, order and good government of the Commonwealth with respect to: ... (xxiv) The service and execution throughout the Commonwealth of the civil and criminal process and the judgments of the courts of the States."

He cited to me a passage which he told me was from Quick and Garron's Commentary on the Australian Constitution, although the document that he handed to me did not appear to confirm that. In commenting on s.51(xxiv) of the Constitution, the learned authors, assuming it is Quick and Garron, say:

"The object of this sub-section is to provide a uniform law for the service of civil and criminal process, for the execution of civil and criminal process and the execution of the judgments of the courts of the States throughout the Commonwealth. No man can be legally bound by a judgment given behind his back without his having had any opportunity of being heard."

It is on the basis of that passage that Mr Stefanovski submitted to me that s.22(1)(b)(ii) of the Public Prosecutions Act 1994 was invalid. He also referred me to s.5 of the Constitution and a commentary on that.

49. Nothing that has been put before me by Mr Stefanovski, nor any argument that I can think of on his behalf, would indicate to me that there is any ground for saying that s.22(1)(b)(ii) of the Public Prosecutions Act 1994 infringes any section of the Constitution. Moreover, in my opinion, it is not open to the plaintiff to seek judicial review of the decision by the Director to take over the conduct of the two informations or of the decision by the Director to discontinue those proceedings. On that basis, it seems to me that the plaintiff's claim that this part of the Magistrate's decision should be quashed is hopeless. The Magistrate was clearly correct in making an order striking out both informations. I will dismiss the appeal from the Master's decision on that part of the third defendant's application.

[1] See r.77.04 of the Supreme Court Rules.

[3] [1992] VicRp 61; [1992] 2 V.R. 198