AB v Bailey
[2023] VSC 97
•6 March 2023
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S ECI 2022 04713
BETWEEN:
| AB | Plaintiff |
| v | |
| JORDAN BAILEY & ANOR (according to the attached Schedule) | Defendants |
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JUDGE: | Irving AsJ |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 16 February 2023 |
DATE OF JUDGMENT: | 6 March 2023 |
CASE MAY BE CITED AS: | AB v Bailey & Anor |
MEDIUM NEUTRAL CITATION: | [2023] VSC 97 |
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PRACTICE AND PROCEDURE – Judgment and orders – Summary judgment applications by both plaintiff and defendants – No real prospect of success – Defendants’ application granted.
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APPEARANCES: | Counsel | Solicitors |
| The Plaintiff in person | ||
| For the Defendants | Mr S Payne (solicitor) | Victoria Police |
TABLE OF CONTENTS
Introduction........................................................................................................................................ 1
Material relied upon by the parties................................................................................................ 2
Self-represented litigants................................................................................................................. 2
AB’s application to amend his originating motion..................................................................... 3
Background......................................................................................................................................... 3
Statutory provisions and legal principles relevant to summary judgment applications.... 5
AB’s primary submissions............................................................................................................... 6
Defendants’ submissions................................................................................................................. 7
AB’s submissions in reply.............................................................................................................. 10
Consideration.................................................................................................................................... 11
AB’s application for summary judgment.................................................................................... 14
Conclusion......................................................................................................................................... 14
HIS HONOUR:
Introduction
The plaintiff (AB) has complained to police that he is the victim of stalking. The stalking alleged by AB involves a course of conduct by the owner (or co-owner)[1] who is also the chef and manager of the restaurant located below AB’s dwelling. AB alleges the owner is maliciously operating an exhaust fan loudly, at different speeds and for hours with the aim of causing AB harm.
[1]It was not clear to me whether the individual in question is the owner, or a co-owner, of the restaurant. I do not consider the issue to be of material significance, and I will refer to the individual as ‘the owner’.
After contacting a number of police stations but being unsatisfied with their responses, AB contacted Collingwood Police Station. Collingwood Police decided not to conduct an investigation or to take further action in relation to AB’s complaint. They informed AB that the offence of stalking had not been made out on the conduct described by AB, and that AB should contact his local police station if he needed further assistance. When AB requested further information about why the police did not think the stalking offence had been made out, the police told AB there was not sufficient evidence to support an offence of stalking.
AB has commenced a proceeding in this Court under Order 56 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) (Rules). His amended originating motion invokes the Court’s judicial review jurisdiction and seeks declarations that based on the information he has given to the police, there is a reasonable prospect that the restaurant owner would be convicted of stalking and that Victoria Police (second defendant), through the police officer (first defendant) who dealt with AB’s complaint, has breached its duty and policy in handling the case. AB also seeks an order quashing the decision of the police that AB’s complaint does not have a reasonable prospect of conviction and an order requiring the police to reconsider the case.
This judgment concerns two summonses filed in AB’s proceeding. One summons was filed by AB and the other by the defendants. Both summons seek summary judgment under the Civil Procedure Act 2010 (Vic) (CPA) on the basis that the other side’s[2] case has no real prospect of success.
[2]The first defendant is a member of the second defendant.
For the reasons that follow I have decided not to grant AB’s application for summary judgment. I have also decided to grant the defendants’ application for summary judgment. Accordingly, AB’s proceeding will be dismissed.
Material relied upon by the parties
AB relied upon the following material:
(a) the plaintiff’s affidavit affirmed 16 November 2022;
(b) the plaintiff’s affidavit affirmed 27 January 2023;
(c) written submissions dated 1 February 2023; and
(d) written submissions dated 10 February 2023.
The defendants relied upon:
(a) the affidavit of Madeleine Chloe Lovelle affirmed 11 January 2023; and
(b) written submissions dated 1 February 2023.
Self-represented litigants
AB represented himself in this proceeding. The Court has a duty to advise and assist self-represented litigants to the extent required to diminish any disadvantage when the self-represented litigant is a party to proceedings involving other parties represented by lawyers. What is required to fulfil this duty will depend on the ability of the individual self-represented litigant in the context of the case that is before the Court.
AB was an articulate and able advocate who had clearly researched the legal principles involved in judicial review applications and applications for summary judgment. In my view he was able to put his case before the Court clearly and was well able to engage in discussion of the law relevant to his case.
AB’s application to amend his originating motion
At the commencement of the hearing AB applied for leave to amend his originating motion in the form provided to the defendants and the Court by email on 15 February 2023. The effect of AB’s proposed amendment was to change the wording of one of the declarations sought and to clarify that AB seeks certiorari of the police decision that his case doesn’t have a reasonable prospect of conviction and mandamus so that the police be required to reconsider the case.
The defendants did not oppose AB’s application to amend. Accordingly, I granted AB leave to amend his originating motion.
Background
AB lives above a restaurant. Since 2019 he has been complaining about the noise and hours of operation of the restaurant’s exhaust fan. He has complained to the owner, his local Council and, since May 2021,[3] the police. AB alleges that in apparent retaliation for the complaints and the animosity that followed, the owner began misusing the fan by working it at higher speeds, for more hours and leaving it on outside business hours including overnight. AB alleges that this malicious course of conduct by the owner was intended to cause him harm and thus constitutes stalking under s 21A of the Crimes Act 1958 (Vic) (Crimes Act).
[3]The defendants’ submissions, at [3], suggest that AB reported his concerns to the first defendant in November 2022
On 7 November 2022 AB sent an email to Collingwood Police Station seeking to report stalking and claiming that the alleged offender was using an exhaust fan to intentionally cause him harm. Collingwood Police, including the first defendant, responded to AB’s email stating that the behaviour complained of did not constitute stalking and that, in any event, AB’s complaint was outside the Collingwood Police Station area and that AB should contact his local police station if he needed further assistance.
AB responded on the same day asking why the offence of stalking was not made out. The first defendant then contacted AB by telephone and advised him that there was not sufficient evidence to support the offence of stalking. The first defendant took no further action.
AB said he was also told by police that they would take no further action because the police could not identify who was responsible for operating the fan in a restaurant that employed more than one worker. AB said the owner told him and others that the owner is responsible for the fan, has accepted that he operates the speed of the fan and that he keeps the fan on until 11:00 pm. AB said the police did not properly consider the case before refusing to investigate and that they dismissed him too quickly.
AB’s grounds for the declarations he seeks are simply and clearly expressed:
(a) the alleged conduct is stalking, i.e. it meets the statutory definition of stalking;
(b) the evidence is substantial and there is a reasonable prospect the offender will be convicted; and
(c) based on the information given to police, the police have a substantial reason to conduct an investigation. It meets the test of having a reasonable suspicion or belief.
AB’s grounds of judicial review are:
(a) the police have fallen into jurisdictional error or made an error of law in saying that the case does not have a reasonable prospect of conviction on the basis that the conduct is not stalking and there is more than one person in the restaurant;
(b) the police didn’t properly exercise jurisdiction by considering all the evidence;
(c) based on the information AB gave to the police, the police had a substantial reason to conduct an investigation;
(d) the decision that the case does not raise a reasonable suspicion or belief of criminal offending is unreasonable or irrational or improper in a material way; and
(e) the police have not provided adequate reasons for their decision that the offence is not made out or that they cannot identify a potential offender.
Statutory provisions and legal principles relevant to summary judgment applications
Summary judgment applications are governed by Order 22 of the Rules and Part 4.4 of the CPA.
Section 61 of the CPA allows a plaintiff to apply to the court for summary judgment on the ground that the defendant’s defence has no real prospect of success. Section 62 of the CPA allows a defendant to apply to the court for summary judgment on the ground that the plaintiff’s claim has no real prospect of success.
Section 63 of the CPA provides that, subject to s 64, a court may give summary judgment if satisfied that a claim or a defence has no real prospect of success. Section 64 of the CPA allows the court to order that a proceeding proceed to trial if it is satisfied that despite there being no real prospect of success, the proceeding should not be disposed of summarily because it is not in the interests of justice to do so or because the dispute is of such a nature that only a full hearing on the merits is appropriate.
The Court of Appeal, in Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd[4] provided the following guidance on the application of the summary judgment test:
[4](2013) 42 VR 27, [35].
(a) 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 “fanciful” chance of success;
(b) the test is to be applied by reference to its own language and without paraphrase or comparison with the “hopeless” or “bound to fail test” essayed in General Steel;
(c) it should be understood, however, that the test is to some degree a more liberal test than the “hopeless” or “bound to fail test” essayed in General Steel and, therefore, permits of the possibility that there might be cases, yet to be identified, in which it appears that, although the respondent’s case is not hopeless or bound to fail, it does not have a real prospect of success;
(d) at the same time, 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; and that is so regardless whether the application for summary judgment is made on the basis that the pleadings fail to disclose a reasonable cause of action (and the defect cannot be cured by amendment) or on the basis that the action is frivolous or vexatious or an abuse of process or where the application is supported by evidence.
AB’s primary submissions
AB’s primary written submissions framed the questions for the Court in the following way:
(a) Is there a reasonable prospect of conviction, including sufficient evidence?
(b) Is there a reasonable suspicion or belief that there are criminal offences such that the police should conduct an investigation?
(c) Have the police discharged their responsibility to investigate the case?
AB’s submissions set out a short summary of the evidence and the statutory definition of stalking in s 21A of the Crimes Act. AB’s submissions then turned to the evidence in more detail with reference to his affidavits of 12 October 2022 and 16 November 2022, pointing out those aspects of the evidence he submitted demonstrated the owner’s malice intention to cause AB harm though engaging in a course of conduct involving running the restaurant exhaust fan at difference speeds and different hours, including outside normal business hours. In relation to particular incidents that AB summarised in his written submissions he also stated the conclusions to be drawn from the incidents. For example AB’s submissions stated that in September 2020 he asked the owner to reduce the speed of the fan and told the owner that AB may go to Court. AB states that the:
offender reduced the speed for a day, then increased it to higher than before, he began working the fan from 9 am (the shop was open for 3.5 hours and was working the fan for 12 hours) and left the fan working overnight 2 times. There is correspondence with evidences the above. These are evidence of retaliatory conduct, malice and being outside normal course of a business. Is open to find a course of conduct with the intention or where the offender knows that likely is causing harm and this conduct has no defence. Thus, there is a reasonable prospect of conviction.
AB’s primary written submissions set out the elements of the offence of stalking as contained in the Judicial College of Victoria Criminal Charge Book (Charge Book). He then particularised the conduct that he said met the statutory definition of stalking. AB also provided examples from the case law referred to in the Charge Book to illustrate the types of behaviour that courts have found constituted stalking. Finally, AB set out defences available to someone charged with a stalking offence and why, by reference to the evidence in his case, the offender would be unsuccessful in mounting a defence. AB then laid out the evidence that he said demonstrated that the owner is the offender, noting that other restaurant employees may fall within the statutory definition of being a person involved in the commission of an offence.
AB submitted that the defendants have fallen into jurisdictional error and made an error of law by saying that his complaint does not have a reasonable prospect of conviction on the basis that the conduct is not stalking and there is more than one person in the shop so the offender cannot be identified. He said the defendants did not properly exercise jurisdiction in that they did not properly assess the evidence. Additionally, AB said the defendants did not provide adequate reasons for their opinion that his complaint has no prospect of resulting in a conviction.
Defendants’ submissions
The defendants submit that AB is seeking judicial review of the defendants’ discretionary decision not to investigate AB’s complaint and that this type of discretionary decision is not amenable to judicial review by this Court.
The defendants reasoned as follows:
(a) section 51 of the Victoria Police Act 2013 (Vic) provides that a police officer, appropriately sworn or under affirmation, has the duties and powers of a constable at common law and any other duties and powers imposed or conferred under any Act or subordinate legislation;
(b) there is no exhaustive definition of the common law powers and obligations of police but they include at least:
(i) an obligation to take all steps which appear to the police officer necessary for keeping the peace, for preventing crime or for protecting property from criminal injury;
(ii) a duty to detect crime and to bring an offender to justice.[5]
(c) the discretionary power to charge and prosecute matters is partially informed by the Victoria Police Prosecution Policy, which permits a police officer to commence and proceed with a prosecution if and only if there is a reasonable prospect of conviction and a prosecution is in the public interest. Whether there is a reasonable prospect of conviction and whether a prosecution is in the public interest will depend on, among other things, the assessment by the investigating police officer of both the availability and strength of admissible evidence available to satisfy all elements of the offence and an assessment of any available defence; and
(d) the discretion whether or not to investigate an allegation of offending and, if so, to what extent, is an essential part of the discretion to commence a prosecution and is therefore, insusceptible to judicial review.
[5]Rice v Connolly [1966] 2 QB 414.
The defendant referred to Lord Denning’s statement in R v Commissioner of Police of the Metropolis, Ex parte Blackburn:[6]
Although the chief officers of police are answerable to the law, there are many fields in which they have a discretion with which the law will not interfere. For instance, it is for the Commissioner of Police of the Metropolis, or the chief constable, as the case may be, to decide in any particular case whether inquiries should be pursued, or whether an arrest should be made, or a prosecution brought. It must be for him to decide on the disposition of his force and the concentration of his resources on any particular crime or area. No court can give him directions on such a matter.
[6][1968] 2 QB 118, 136
The defendants submitted that the authorities support the absolute proposition that the decision of a prosecuting authority to investigate and commence a prosecution is insusceptible to judicial review. According to the defendants the first reason that judicial review is not available is that Courts are not equipped to undertake the role of intervening in police investigations and deciding how the police force should use its investigative resources. Courts cannot know the full range of demands on police resources at any given time and are therefore not equipped to assess the range of public interest considerations that influence police operational decisions, including which matters to investigate. The second reason identified by the defendants is that the independence of the judicial process and separation of powers would be compromised if courts were to determine who is investigated and prosecuted for which offences. Put simply, courts cannot direct a prosecution and later adjudicate on that prosecution.
The defendants submitted that, beyond AB’s unfounded assertions of the defendants’ factual and opinion errors, there is no evidence or circumstance that could, if properly pleaded, resemble an error of law susceptible to judicial review. The defendants said that AB seeks relief on the basis that the decision not to investigate his complaint was a jurisdictional or legal error by the defendants. The defendants submitted that an examination of AB’s grounds in his amended originating motion amount to AB’s dissatisfaction and disagreement with the conclusion made by the defendants. AB’s grounds do not identify any jurisdictional error or error of law but rather effectively seek a merits review of the defendants’ decision not to investigate his complaint. This, the defendants submitted, is beyond the scope of the Court’s power on a judicial review application.
The defendants submitted that AB is seeking to impugn findings of fact made by the defendants, which could only constitute an error of law if AB could show that the particular finding was not available on the evidence. The defendants said the first defendant, having considered the relevant section of the Crimes Act, made a proper assessment of the facts and concluded that the offence of stalking was not made out on the basis that there was no evidence to support AB’s claims and that the noise was lawful. The defendants submit the decision was one which was open to them, and one made on proper and lawful grounds after a close examination of the elements of the offence of stalking and the available evidence.
AB’s submissions in reply
AB filed written submissions in reply in which he submitted that every day in the Magistrates’ Court, Magistrates determine whether in a particular case there is sufficient evidence to support a conviction. This showed, AB said, that courts answering the question whether a case has a reasonable prospect of achieving a conviction on the basis of the sufficiency of the evidence is not equivalent to a court reviewing the police’s discretionary prosecutorial decision whether to charge an individual. AB submitted that in appeals and reviews of criminal cases from lower courts, courts are regularly asked whether it was open on the evidence to find a charge proven.
AB submitted that his proceeding does not seek judicial review of the prosecutorial discretion but rather review of the legal determination that the case does not have a reasonable prospect of conviction. AB submitted that the prosecutorial discretion is guided by two primary considerations: the sufficiency of the evidence and the public interest. AB said this shows that prosecutorial discretion is different to the sufficiency of the evidence and an assessment of whether there is a reasonable prospect of a conviction.
Additionally, AB submitted that the first paragraph of his prayer for relief seeks declaratory relief that is independent of the police and does not involve a review of the defendants’ decisions. AB submitted that the Court’s jurisdiction to make declarations is unfettered.[7] AB submitted that the reason he sought the independent declaration was so that he could make fresh contact with the police and address the reasons the police previously declined to investigate his complaint. According to AB, he has put all the necessary evidence before the Court for the Court to decide whether there is a reasonable prospect of conviction and whether the conduct is capable of being found to be stalking. In that sense, AB submitted that he is asking the Court to answer a question of law. AB submitted that his application is asking the Court to make a determination akin to determinations made every day in the Magistrates’ Court of Victoria in committal proceedings. AB submitted that it is in the public interest that the Court make such a declaration because it would demonstrate that when the police make incorrect legal determinations the Court is capable of reviewing them. According to AB this is all the more important in matters involving stalking because the Victorian Law Reform Commission has tabled a report in parliament stating police are frequently improperly dismissing complaints of stalking by victims.
[7]A S v Secretary to the Department of Justice and Regulation [2017] VSC 310, [144], [146].
AB submitted that his application is an ordinary judicial review application. He has identified the decisions he seeks be reviewed, i.e. that his case does not have a reasonable prospect of conviction and the first defendant’s decision not to investigate. AB has identified the errors made by the defendants, i.e. that they assessed the evidence as insufficient and that the case does not have a reasonable prospect of conviction and in doing so the defendants breached their duty and policy by not properly considering the evidence.
Consideration
There is no doubt that AB is significantly distressed by the noise from the exhaust fan. AB’s proceeding, however, has no real prospect of success and should be dismissed.
I have reached this view for a number of reasons. First, I agree with the defendants that the weight of authority supports the principle that exercises of prosecutorial discretion are immune from judicial review.[8]
[8]Maya v DPP (2019) 60 VR 276, 287 [44]; Maxwell v The Queen (1996) 184 CLR 501, 534 (Gaudron and Gummow JJ) (Maxwell); Likiardopoulos v The Queen (2012) 247 CLR 265, 279-80 (Gummow, Hayne, Crennan, Kiefel and Bell JJ) (Likiardopoulos); Victorian Taxi Families Inc v Taxi Services Commission (2018) 61 VR 91, 154 [218].
The rationale for this immunity, expressed in the authorities, is that the integrity of the judicial process, particularly its independence and impartiality and the public perception of that independence and impartiality, would be compromised if courts were to decide or were in any way concerned with decisions about who is to be prosecuted and for what.[9] A further consideration is the width of the prosecutorial discretion generally and the variety of factors which may legitimately inform the exercise of those discretions, including policy and public interest considerations which are not susceptible to judicial review because it is neither within the constitutional function nor practical competence of courts to assess their merits.[10]
[9]Maxwell, 534 (Gaudron and Gummow JJ).
[10]Likiardopoulos, 269 (French CJ). See also Elias v The Queen (2013) 248 CLR 483, 497 (French CJ, Hayne, Kiefel, Bell and Keane JJ) and Barton v The Queen (1980) 147 CLR 75, 94-95 (Gibbs ACJ and Mason J).
The immunity is subject to the Court’s power to prevent abuse of the Court’s processes.
Second, I do not accept AB’s submission that a distinction can be made between the overall prosecutorial discretion and one of its main elements, whether the evidence discloses a reasonable prospect of a conviction, to allow the latter to be subject to judicial review notwithstanding that the former is immune from such review. It would make no sense to recognise the immunity for the overall exercise of the prosecutorial discretion in a particular matter but allow judicial review of the discretion’s constituent elements. To allow that would clearly undermine the purpose of the immunity and involve the Court in the very exercise the immunity exists to avoid.
Third, committal proceedings conducted in the Magistrates’ Court are not analogous to judicial review of an exercise of prosecutorial discretion. Committal hearings are a statutory process in criminal prosecutions involving indictable offences that are not heard and determined summarily.[11] At a committal hearing the Magistrates’ Court must determine whether there is evidence of a sufficient weight to support a conviction.[12] The legal bases upon which the Magistrates’ Court will consider the evidence, including the elements of the relevant offence, are completely different to the legal basis upon which the Court will, in an appropriate case, conduct judicial review. More fundamentally, the Magistrates’ Court in exercising its committal hearing jurisdiction is not considering the exercise of the prosecutorial discretion to prosecute. It is considering the weight of the evidence against the charge the prosecutor has already decided to bring before the Court.
[11]Criminal Procedure Act 2009 (Vic), s 96.
[12]Ibid s 128.
Fourth, AB’s application in substance seeks a merits review of the defendants’ decision not to take further action in relation to his complaint. Judicial review is not a mechanism for merits review.
Fifth, even if I am wrong about the defendants’ decision being immune from judicial review, on the evidence before the Court the proposition that the first defendant’s decision not to investigate was not open to him, is not reasonably arguable. It is clear that the first defendant gave some consideration to whether or not the police should investigate AB’s complaint further and decided, for reasons given to AB, not to proceed. This is not a case in which the first defendant has declined to even consider investigating a complaint or prosecuting an offence. I therefore agree with the defendants that AB’s argument that the defendants have committed an error of law capable of judicial review has no prospect of success.
Sixth, while I agree that the Court’s powers to make declarations are unfettered, they remain a discretionary remedy. AB sought declarations that the conduct he alleged the owner engaged in meets the statutory elements of the offence of stalking; that the evidence is substantial; that there is a reasonable prospect of a conviction; and that the police had a substantial reason to conduct an investigation. To make declarations in the terms sought by AB, the Court would necessarily interfere with ordinary criminal processes which exists, at least in part, to protect the rights and interests of accused persons. This is because one declaration AB seeks is in effect that, in the circumstances of his case, the conduct AB alleges the owner engaged in, is stalking. To make such a declaration would be offensive to basic principles of fairness to accused persons. Similarly, to make a declaration about the sufficiency of the evidence and the prospects of conviction in a proceeding that does not involve the person the subject of the allegations would be grossly unfair. Finally, to make a declaration that the police had substantial reason to conduct an investigation would undermine the integrity of the judicial process by involving the Court in consideration of the prosecutorial discretion. In my view AB has no prospect of success in persuading a Court to make the declarations he seeks.
In my opinion this proceeding is not a matter that, notwithstanding it has no real prospect of success, falls within the scope of s 64 of the CPA and should therefore proceed to trial. To allow it to proceed would be contrary to the interests of justice and in opposition to the very reason it must be dismissed.
Seventh, while not the subject of oral submissions, AB did not identify the source of an obligation on the defendants to provide reasons.
AB’s application for summary judgment
It follows that as I have decided that the defendants’ application for summary judgment should succeed, it is unnecessary for me to consider AB’s application for summary judgment.
Even if I am incorrect and the defendants’ application for summary judgment should be dismissed, I would still have dismissed AB’s application for summary judgment. I would have done so because, for the reasons given above, I am not satisfied that the defendants’ defence has no real prospect of success.
Conclusion
For the reasons given above I will order that:
(a) The defendants’ application for summary judgment is granted.
(b) The proceeding is dismissed.
I ask the parties to confer on the question of costs. If the parties are unable to reach agreement on the terms of any costs order within seven days of the date of this judgment, the matter will be listed for short oral submissions on costs.
SCHEDULE OF PARTIES
| S ECI 2022 04713 | |
| BETWEEN: | |
| AB | Plaintiff |
| - v - | |
| JORDAN BAILEY | First Defendant |
| VICTORIA POLICE | Second Defendant |
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