Austin v Dwyer
[2018] VSC 770
•10 December 2018
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S ECI 2018 00261
| FIONA AUSTIN | Plaintiff |
| v | |
| DETECTIVE SERGEANT TRENT DWYER, MAGISTRATES' COURT OF VICTORIA | Defendant |
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JUDGE: | Derham AsJ |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 30 November 2018 |
DATE OF JUDGMENT: | 10 December 2018 |
CASE MAY BE CITED AS: | Austin v Dwyer |
MEDIUM NEUTRAL CITATION: | [2018] VSC 770 First revised 2 April 2019 |
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JUDICIAL REVIEW – Application to review decision of the Magistrates’ Court of Victoria – Relief sought in the nature of a writ of certiorari and mandamus - Supreme Court (General Civil Procedure) Rules 2015 ord 56.
PRACTICE AND PROCEDURE – Summary judgment – Application for summary judgment under s 63 of the Civil Procedure Act2010 – Civil Procedure Act 2010 ss 62, 63 –Application for summary judgment granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | The plaintiff appeared in person | |
| For the Defendant | Ms H Spowart | Ms H Spowart, Managing Principal Advocate, Advocacy Team, Victoria Police |
TABLE OF CONTENTS
Introduction......................................................................................................................................... 1
This proceeding (OM-3)............................................................................................................... 1
Magistrates’ Court proceedings.................................................................................................. 2
The first originating motion - OM-1........................................................................................... 3
The second originating motion – OM-2..................................................................................... 4
Procedural Background.................................................................................................................... 5
The role of the Court on a judicial review application............................................................... 7
Certiorari........................................................................................................................................ 8
Mandamus..................................................................................................................................... 9
Self-Represented Litigant............................................................................................................... 10
Plaintiff’s evidence and submissions........................................................................................... 12
Intervention orders proceeding................................................................................................ 12
Criminal charges proceeding.................................................................................................... 15
15 May 2018 hearing................................................................................................................... 17
Plaintiff’s submissions.................................................................................................................... 19
Defendant’s submissions................................................................................................................ 21
Summary judgment application.................................................................................................... 24
Consideration.................................................................................................................................... 25
Conclusion......................................................................................................................................... 30
HIS HONOUR:
Introduction
This proceeding (OM-3)
The plaintiff applies for judicial review under ord 56 of the Supreme Court (General Civil Procedure) Rules 2015 (Rules) for the following relief:[1]
The decision by Magistrate Kiel (sic) on 15 May 2018, to refuse to conduct the hearing of the criminal charges and the order to adjourn the proceedings for another mention, be quashed or set aside and remitted back to the Magistrates’ Court for the fully contested hearing to take place.[2]
[1]By order of Ginnane J made 29 November 2018, the hearing and determination of this proceeding has been referred to me pursuant to r 77.05 of the Rules.
[2]Amended Originating Motion filed 24 August 2018 (emphasis added).
The grounds relied upon by the plaintiff are as follows:[3]
[3]Ibid.
(a) On 15 May 2018, a hearing of the criminal charges was listed to recommence. This was 574 days after I was arrested and 355 days after I was given the first opportunity to plead ‘not guilty’. On 15 May 2018, Magistrate Keil refused to hear the criminal charges and said he would be adjourning the matter to recommence on 21 January 2019, 825 days after I was arrested. The refusal to hold a hearing within 12 months is a breach of s 211 of the Criminal Procedure Act 2009 (Vic).
(b) Despite saying he would relist the hearing to recommence on 21 January 2019, Magistrate Keil made a decision, after the court session had finished, without any party to the proceeding being present, to list a mention on 21 January 2019. The purpose of this mention has never been explained or noted anywhere. No explanation has been given as to why a mention has been listed so far in the future (251 days), on the same day as he listed the start of a final intervention order hearing;
(c) Magistrate Keil’s failure, on 15 May 2018, to hear the criminal charges, which are based on intervention orders issued on 26 August 2016, 28 September 2016 and 8 September 2018, his failure to propose a timely relisting of the hearing, his failure to relist the hearing and his listing of a mention, which has no known purpose, on 21 January 2019, were errors of law on the face of the record.
I will call this originating motion OM-3, as that is the way plaintiff has described it. The defendants are Detective Senior Constable Trent Dwyer (who I will call the defendant) and the Magistrates’ Court of Victoria. The Magistrates’ Court has, as is usual, advised that it does not intend to take an active role in the proceeding and will abide by the decision of the Court in accordance with the principles enunciated in R v Australian Broadcasting Tribunal, ex parte Hardiman.[4] The Magistrates’ Court also provided to the Supreme Court Registry certified extracts of the orders made in the two Magistrates’ Court proceeding mentioned below.
[4](1980) 144 CLR 13.
There are two further and related originating motions by which plaintiff seeks judicial review of decisions of the County Court of Victoria and the Magistrates’ Court of Victoria. In order to understand the three originating motions, it is first necessary to refer to the two underlying Magistrates’ Court proceedings.
Magistrates’ Court proceedings
The first Magistrates’ Court proceeding is proceeding G12353529 brought by Oscar Dobbs (Mr Dobbs) against the plaintiff for a personal safety intervention order pursuant to the Personal Safety Intervention Orders Act 2010 (Vic) (PSIO Act) (intervention orders proceeding). The first such order was made on 26 August 2016 as an interim order. A final order was made on 28 September 2016 with an expiry date of 27 September 2017. A further interim order was made on 11 September 2017 and on 21 November 2017 adjourned to be heard on 15 May 2018, seemingly at the same time as the next matter to be mentioned.
The second Magistrates’ Court proceeding is proceeding G13348766, which concerns the summary hearing of criminal charges laid by the defendant against the plaintiff (criminal charges proceeding). The charges are:
(a) stalking in contravention of s 21A(1) of the Crimes Act 1958 (Vic);
(b) using a carriage service to harass in contravention of the s 474.17(1) of the Criminal Code Act 1995 (Cth);
(c) contravention of a personal safety intervention order made pursuant to the PSIO Act; and
(d) breaches of conduct conditions of bail in contravention of s 30A(1) of the Bail Act 1977 (Vic).
There are 14 charges in total. Most are summary offences, but the stalking charge is an indictable offence triable summarily in accordance with the Criminal Procedure Act 2009 (Vic). According to the evidence and submissions of the plaintiff, each Magistrates’ Court proceeding arises out of a common substratum of facts, or at least the bases of the proceedings significantly overlap. The facts alleged to found the stalking and use of the carriage service charges are evidently the foundation for the intervention order, and the breaches of the intervention order and bail conduct conditions evidently follow on. The plaintiff’s breach of the conduct conditions of her bail seem to have resulted in her spending over 11 months in custody. She was bailed on 21 November 2017 and remanded to appear on 15 May 2018, when the criminal charges and the intervention orders proceedings were to be finally heard. I will return later to what happened on that day.
The first originating motion - OM-1
The first originating motion is proceeding S ECI 2018 00234 (OM-1) commenced on 3 July 2018 by the plaintiff against Mr Dobbs and the County Court of Victoria seeking judicial review of a decision of the County Court (in County Court proceeding AP–18–0560) striking out her appeal against orders of the Magistrates’ Court in the intervention orders proceeding. In OM‑1 she seeks that the order made in the County Court on 6 June 2018 be quashed and the matter remitted back to the County Court for an urgent hearing of the appeal. The grounds of the judicial review are:
(a) that it was a jurisdictional error for the County Court judge not to exercise the discretion available to him to allow an appeal in exceptional circumstances when lodged out of time;
(b) the decision not to consider the exceptional circumstances surrounding the Notice of Appeal being lodged out of time increased the unnecessarily harsh effect of the legal proceedings upon the plaintiff and was an error of law on the face of the record;
(c) failure to give any consideration to the circumstances of ‘this matter’, to question, discuss or comment on the facts of the case was unreasonable and denied the plaintiff procedural fairness.
The second originating motion – OM-2
The second originating motion issued by the plaintiff is proceeding S ECI 2018 00235 commenced on 4 July 2018 (OM-2). That is commenced against Mr Dobbs and the Magistrates’ Court of Victoria. In it the plaintiff applies for a judicial review of the decision of Magistrate Keil made on 15 May 2018 in the intervention orders proceeding. Her claims are:
(a) that the order made by Magistrate Keil on 15 May 2018, to adjourn the Final Intervention Order hearing, be quashed and remitted back to the Magistrates’ Court to be heard after the appeal in the County Court has taken place;
(b) for an injunction to stop the Final Intervention Order hearing, now listed to commence on 21 January 2019, from taking place until after the appeal in the County Court, on which this order is based, has completed.
The grounds in OM-2 are:
(a) Magistrate Keil’s failure, on 15 May 2018, to hear the final intervention order that was adjourned from 11 October 2017 to 20 November 2017 and then to 15 May 2018, was an error of law on the face of the record.
(b) Magistrate Keil’s failure to give any consideration to the circumstances of this matter, to question, discuss or comment on the facts of the case was unreasonable and denied the plaintiff procedural fairness.
Procedural Background
The originating motion in this proceeding, OM‑3, was filed on 4 July 2018. As originally formulated, the relief the plaintiff claimed was in slightly different terms to that quoted above. The claim was:
The decision by Magistrate Kiel (sic) on 15 May 2018, to refuse to conduct the hearing of the criminal charges and the order to adjourn the proceedings for another mention, be quashed or set aside and remitted back to the Magistrates’ Court to be heard after the appeal in the County Court has taken place.[5]
[5]Originating Motion filed 4 July 2018 (emphasis added).
This proceeding came on for directions before a Judicial Registrar on 22 August 2018.[6] At that directions hearing, it was ordered that the plaintiff have leave to file and serve an amended originating motion by no later than 4 pm on 27 August 2018 and that the matter be fixed for further directions on 12 September 2018.
[6]Pursuant to a summons filed by the plaintiff on 14 July 2018 pursuant to r 56.04(3) of the Rules.
The reason for the amended originating motion was identified by the Judicial Registrar in her reasons for making the order. She noted her understanding that the County Court appeal referred to in the plaintiff’s claim was County Court proceeding AP–18–0560, which was an appeal from orders made in the intervention orders proceeding. That County Court appeal was struck out on 6 June 2018. OM‑1 is an application for judicial review of that County Court decision, as I have said.
The Judicial Registrar concluded that the relief initially claimed in OM‑3 was inutile, as the County Court Appeal had already been determined. She therefore reasoned that what the plaintiff may in fact be seeking is that the hearing of the criminal charges proceeding be heard after her application in OM‑1 to review the decision of the County Court to strike out her appeal in the intervention orders proceeding. That did not turn out to be what the plaintiff wanted, if her amended originating motion is to be the guide, as that quite clearly seeks that the criminal charges proceeding be set down for a fully contested hearing, something that has occurred as I shall explain.
The Judicial Registrar also noted that the plaintiff sought an expedited hearing of this proceeding. This proceeding came back on for further directions before the Judicial Registrar on 12 September 2018. At that time the Registrar ordered (amongst other things) that:
(a) This proceeding be listed to be heard consecutively with proceeding S ECI 2018 00234 and proceeding S ECI 2018 00235 on 30 November 2018 on an estimate of one day;
(b) Any application for summary dismissal is to be listed to be heard on 30 November 2018.
The three judicial review proceedings are all related. The plaintiff filed an affidavit in substantially the terms in support of each OM.[7] In her submissions, she makes clear that they all relate to the same facts, circumstances and evidence. The ‘dependency and interrelatedness of the underlying cases require their corresponding Judicial Reviews to be read and considered in appropriate sequence and as a whole.’[8]
[7]In this proceeding it is her affidavit purportedly sworn on 6 July 2018, but filed on 4 July 2018 (plaintiff’s first affidavit).
[8]Plaintiff’s outline of submissions, 22 October 2018, [3].
However, in OM‑1 and OM‑2 she has been unable to serve Mr Dobbs. She made application to the Judicial Registrar for an order for substituted service on Dobbs. The plaintiff sought that this Court serve the judicial review documents on Dobbs using the contact details he has provided to the County Court and Magistrates’ Courts. At the hearing the plaintiff sought that this Court require the Victoria Police to serve the documents on Dobbs. She could not do so because of the terms of the intervention order subsisting against her. The Judicial Registrar heard the application and on 30 August 2018 rejected it, and gave written reasons for doing so. The plaintiff appealed this decision by Notice of Appeal filed on 4 September 2018. Such an appeal is a hearing de novo. It came on for hearing before Garde J on 21 November 2018. On that day, Garde J heard the appeal and, apart from allowing the plaintiff to file a further affidavit and any other material by Monday 3 December 2018, he reserved his decision.
It has thus become impossible to hear this proceeding with the other two originating motions ‘in the appropriate sequence and as a whole’, or consecutively on the same day before the same judge as the Judicial Registrar ordered, unless the hearing of this proceeding were adjourned to some unidentifiable later date.[9] The plaintiff therefore applied to adjourn the hearing.[10] This was opposed by the defendant.
[9]Austin attempted to contend that she had served OM‑1 and OM‑2 (and supporting affidavit) on Dobbs’ wife by email and that was sufficient service, but pointed to no proper evidence of the proceedings having come to the notice of Dobbs.
[10]Transcript of Proceedings, Austin v Dwyer (Supreme Court of Victoria, S ECI 2018 00261, Associate Justice Derham, 30 November 2018) 14.17-20 (Trial Transcript).
The defendant also applied to dismiss the proceeding summarily pursuant to pt 4.4 of the Civil Procedure Act 2010 (Vic) (CPA), relying on the order made by the Judicial Registrar (see above at [15(b)]) and on the filing and service of a written outline of submissions that specifically applied for that relief and set out the basis for it.
In order to determine whether it was fair and just to the plaintiff to adjourn the hearing or to consider the application to dismiss it, it became necessary to consider the merit of the claim, and its grounds, and in that way assess whether there was any utility in an adjournment. Before doing so, it is desirable to set out some of the law that governs what this Court may do on an application of this kind.
The role of the Court on a judicial review application
In Topouzakis v Greater Geelong City Council,[11] Emerton J usefully summarised the role of the Court on an application for judicial review as follows:
…it must be borne steadily in mind that the Court is concerned with the lawfulness of the [decision-maker’s] decision, not with whether it was the correct and preferable decision.
The distinction between review on the merits and a review of the legality of a decision is fundamental to administrative law. The Court does not engage in a review of the merits of administrative decisions, as the power to engage in administrative action resides with the repository of the power alone. The Court’s jurisdiction when conducting judicial review is to determine whether the decision taken was within power; the Court has no jurisdiction ‘simply to cure administrative injustice or error’….
In Craig v The State of South Australia, the High Court confirmed that an administrative decision-maker lacks authority to make a decision otherwise than in accordance with the law. If an administrative decision-maker makes an error of law which causes it to identify the wrong issue, to ask itself the wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the decision-makers exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is a jurisdictional error which will invalidate any order or decision which reflects it.[12]
[11][2014] VSC 87.
[12]Ibid [56] (citations omitted).
The relief that may be granted by this Court on an application for judicial review is set out in ord 56 of the Rules. Under r 56.01, the Court has power ‘to grant any relief or remedy in the nature of certiorari, mandamus, prohibition or quo warranto’.
Certiorari
Certiorari was a process by which a superior court, in the exercise of its original jurisdiction, supervises the acts of an inferior court or tribunal. It merely enables the quashing of an impugned order or decision upon one or more of a number of distinct grounds of which the most important are jurisdictional error, failure to observe some applicable requirement of procedural fairness, fraud and error of law on the face of the record.[13]
[13]Craig v South Australia (1994) 184 CLR 163, 175-6.
Where the application is sought on the ground of jurisdictional error, breach of procedural fairness or fraud, the superior court entertaining an application for certiorari can, subject to applicable procedural and evidentiary rules, take into account any relevant material placed before it. Where, however, relief is sought on the ground of error of law on the face of the record, the superior court is restricted to ‘the record’ of the inferior court or tribunal and the quashing of the impugned order or decision will only be on the ground that it is affected by some error of law which is disclosed by that record. 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 that the superior court thinks should have been made.[14]
[14]Ibid.
Mandamus
A writ of mandamus does not issue except to command the fulfilment of some duty of a public nature which remains unperformed. If the person under the duty professes to perform it, but what he actually does amounts in law to no performance because he has misconceived his duty or, in the course of attempting to discharge it, has failed to comply with some requirement essential to its valid or effectual performance, he may be commanded by the writ to execute his function according to law de novo.[15]
[15]R v The War Pensions Entitlement Appeal Tribunal; Ex Parte Bott (1933) 50 CLR 228, 242.
In the case of a tribunal, whether of a judicial or administrative nature, charged by law with the duty of ascertaining or determining facts upon which rights depend, if it has undertaken the inquiry and announced a conclusion, the prosecutor who seeks a writ of mandamus must show that the ostensible determination is not a real performance of the duty imposed by law upon the tribunal. It may be shown that the members of the tribunal had not applied themselves to the question which the law prescribes, or that in purporting to decide it they have in truth been actuated by extraneous considerations, or that in some other respect they have so proceeded that the determination is nugatory and void.[16]
[16]Ibid.
The prosecutor who undertakes to establish that a tribunal has so acted ought not to be permitted under colour of doing so to enter upon an examination of the correctness of the tribunal’s decision, or of the sufficiency of the evidence supporting it, or of the weight of the evidence against it, or of the regularity or irregularity of the manner in which the tribunal has proceeded. The correctness or incorrectness of the conclusion reached by the tribunal is entirely beside the question whether a writ of mandamus lies. It is also beside the question that the determination, although not void, is yet one which, because of some failure to proceed in the manner directed by law, or of some collateral defect or impropriety, is liable to be quashed by a Court which on appeal, certiorari, or other process is competent to examine it.[17]
[17]Ibid; see also R v Bowen; Ex parte Federated Clerks Union of Australia (1984) 154 CLR 207, 209-10.
Self-Represented Litigant
The plaintiff is self-represented. She has, however, managed to prepare three separate applications all related to the underlying Magistrates’ Court proceedings to which I have referred. The applications are supported principally by her first affidavit, which sets out some of the underlying facts, and produces some of the source documents, and by further affidavits which, although repeating much that is included in her first affidavit, add some matters of fact.[18] The affidavit, and the written submissions, show that the plaintiff is frustrated and upset at a perceived injustice to her and is attempting to rectify the injustice by challenging the initial intervention order (that is the subject of the appeal from the Magistrates’ Court to the County Court and the subsequent application for judicial review of the dismissal of that appeal) and ensuring that the criminal charges come on for a final hearing at which the plaintiff has a proper opportunity to challenge the evidence against her and to present her own evidence.
[18]Affidavit made 3 September 2018 in support of an order for an expedited hearing (plaintiff’s second affidavit), affidavit of the plaintiff made 23 October 2018 (plaintiff’s third affidavit) and a number of affidavits of service.
The affidavit and submissions also show that in applying the legislation applicable to the intervention orders, and the Criminal Procedure Act 2009 (Vic), the plaintiff has presented her several applications reasonably well, after making allowances for her tendency to re-state all her grievances many times notwithstanding that they are not to the point of the particular ground of review.
It is the duty of the Court in relation to represented and unrepresented litigants alike to ensure that a hearing or trial is conducted fairly and in accordance with law.[19] Procedural fairness is ‘an essential attribute of a court’s procedure’.[20] It is a frequent consequence of self-representation that the Court must assume the burden of endeavouring to ascertain the rights of parties which are obfuscated by their own advocacy.[21] What a judge must do to assist a litigant in person depends on the litigant, the nature of the case, and the litigant’s intelligence and understanding of the case.[22] The judge cannot be the advocate of the self-represented litigant, for the role of the judge is fundamentally different to that of an advocate. The judge must maintain the reality and appearance of judicial neutrality at all times and to all parties. The assistance must be proportionate in the circumstances — it must ensure a fair trial and not afford an advantage to the self-represented litigant.[23]
[19]MacPherson v The Queen (1981) 147 CLR 512, 523; Dietrich v The Queen (1992) 177 CLR 292; Werden v Legal Services Board (2012) 36 VR 637, [53].
[20]Assistant CommissionerCondon v Pompano Pty Ltd (2013) 252 CLR 38, 99, [156].
[21]Neil v Nott (1994) 68 ALJR 509, 510; 121 ALR 148, 150; Minogue v Human Rights and Equal Opportunity Commission (1999) 84 FCR 438, [27]-[29],[33]; Platcher v Joseph [2004] FCAFC 68, [104].
[22]Abram v Bank of New Zealand (1996) ATPR 41–507, 43,341, 43,347 ; Minogue v Human Rights and Equal Opportunity Commission (1999) 84 FCR 438, [27]-[29], [33]; Platcher v Joseph [2004] FCAFC 68 [104]; Tomasevic v Travaglini (2007) 17 VR 100, 130.
[23]Tomasevic v Travaglini (2007) 17 VR 100, 130.
The advice and assistance which a litigant in person ought to receive from the court should be limited to that which is necessary to diminish, so far as this is possible, the disadvantage which she will ordinarily suffer when faced by a lawyer, and to prevent destruction from the traps which our adversary procedure offers to the unwary and untutored. But the court should be astute to see that it does not extend its auxiliary role so as to confer upon a litigant in person a positive advantage over the represented opponent. An unrepresented party is as much subject to the rules as any other litigant and, although the Court must be patient in explaining them and may be lenient in the standard of compliance which it exacts, it must see that the rules are obeyed, subject to any proper exceptions.[24]
[24]Rajski v Scitec Corporation Pty Ltd Unreported, Court of Appeal, NSW, Full Court, No CA 146 of 1986, (16 June 1986), 14 (Samuels JA).
In the recent decision of the Court of Appeal in Roberts v Harkness,[25] which was applied in Doughty-Cowell v Kyriazis,[26] the Court made it clear that a litigant must have a reasonable opportunity of presenting her case. What amounts to a reasonable opportunity of presenting a case depend on the circumstances of the case, including the nature of the decision to be made, the nature and complexity of the issues in dispute, the nature and complexity of the submissions which the party wishes to advance, the significance to that party of an adverse decision (‘what is at stake’) and the competing demands on the time and resources of the court or tribunal.[27]
[25][2018] VSCA 215.
[26][2018] VSCA 216.
[27]Roberts v Harkness [2018] VSCA 215, [8]-[49].
The plaintiff was given a reasonable opportunity to present her case. In the hearing I sought to apply the principles and guides stated above. In this judgment I will endeavour to apply them in considering the facts and arguments, and in the determination of the claim.
Plaintiff’s evidence and submissions
The plaintiff’s first affidavit sets out some background information concerning the initial intervention order and her explanation for it, the history of the progress of the criminal charges proceeding, interspersed with comments, submissions, opinions and a good deal of inadmissible matter. This is understandable with a self-represented litigant and no formal objection was made by the defendant to any of the material in the plaintiff’s affidavit.
Intervention orders proceeding
It is neither necessary nor desirable to repeat all of the background matters that are dealt with in the plaintiff’s affidavit. Some of it concerns the plaintiff’s account of the circumstances leading the Magistrates’ Court granting the initial intervention order on 26 August 2016, without notice to her. The defendant has not sought to respond to any of this material and it would be inappropriate to repeat it in these reasons. In essence the plaintiff’s case is that the intervention order should never have been granted in the first place. A final intervention order was granted on 28 September 2016 and, according to the plaintiff’s evidence, without the plaintiff’s knowledge or involvement. The plaintiff maintains that:
(a) she was not informed of the intervention order process against her;
(b) she was at work on 3 October 2016 when the police arrived to serve her with the intervention order;
(c) she was then arrested on 17 October and bailed the next day, 18 October 2016;
(d) she made application pursuant to s 99 of the PSIO Act for a rehearing which was listed for 7 December 2016;
(e) that the defendant ‘spoke to Matilda Evans at the Melbourne Magistrates’ Court on 6 December 2016 and it was determined that she was to be arrested prior to the rehearing taking place’;[28]
(f) she was arrested on the steps of the Court on 7 December 2016, locked in a cell in the basement of the Court and not taken to the rehearing. At the end of the day, she was taken to the Magistrate who adjourned the rehearing to 18 January 2017. The Magistrate apparently said she did not have time to listen to her facts and asked the defendant what he wanted and then told the plaintiff she was sending the plaintiff to gaol. There were, the plaintiff says, no facts advanced, no evidence given and no proof required.[29] From then until the plaintiff was again released on bail on 21 November 2017, the plaintiff was imprisoned in the Dame Phyllis Frost Centre.
[28]Plaintiff’s affidavit, [22], Exhibit FA-3 Diary of Detective Trent Dwyer, 20.
[29]Ibid [22].
From sometime in early 2017, the plaintiff obtained legal representation. Her attempts to have a rehearing of the intervention order were unsuccessful. Her lawyer apparently, without instructions, lodged an appeal against the refusal of the Court to rehear the application for the intervention order. It would seem that she attended the County Court on the hearing of an appeal, but did not understand what was going on as she had not herself completed any appeal papers.
On 11 September 2017, another interim intervention order was made by the Magistrates’ Court at Melbourne. The plaintiff says she was not informed in any way that the application for the interim order would be made. She maintains that it was made in contravention of s 35 of the PSIO Act.[30] She says that the hearing of a final intervention order was listed for 11 October 2017 but because the facts, evidence and witnesses were essentially identical to those in the criminal charges proceedings, the judge in the County Court instructed the defendant to vacate the hearing on 11 October 2017 and have it heard with the fully contested criminal charge hearing listed to commence on 21 November 2017. Presumably this occurred at the time of the hearing of the appeal the plaintiff says she never instituted against the refusal of her rehearing application relating to the first intervention order.[31]
[30]Plaintiff’s first affidavit, [27].
[31]Ibid [26–8].
The intervention orders proceeding came before the Magistrate’s Court at Melbourne on 11 October 2017 and the plaintiff says that the defendant submitted that the criminal charge proceeding and the intervention order proceeding should be heard at the same time. In the result, the intervention order application was listed for a contested hearing on 20 November 2017.[32] In the result, the plaintiff maintains that because there was no hearing of the application for a final intervention order ‘as soon as practicable’, this constituted a breach of s 42 of the PSIO Act.[33] Her lawyers, funded by Legal Aid, advised her that no funding was available for contested intervention order’s so they could not assist her. In the result, she spent 11 and a half months in gaol without being found guilty of anything and she is still on bail. There has not been a final hearing of the intervention order application. She maintains that the first interim intervention order, the first final intervention order and the second interim intervention order are not valid and cannot be left undisputed. She says:
If I had been informed of the intervention order proceedings, I would have been at the hearing on 26 August 2016. If the matter wasn’t dismissed, mediation would have taken place and, I genuinely believe, that seeing me face to face, talking with me in real life, in real time with actual human interaction would have seen Oscar [Dobbs] snap out of the fantasy he has created and begin to understand that his lies are causing me an enormous amount of loss and suffering. It is only from that point that any repairs to my life can begin. Oscar is in complete control.
[32]Ibid [28].
[33]Ibid [29].
The plaintiff maintains she has had an intervention order against her for at least 887 days (almost two and a half years) but no hearing has ever taken place, there has been no proper proof of Mr Dobbs allegations and she has never had an opportunity to defend herself. In the result, she is homeless, friendless, isolated and unemployed (and unemployable).
Criminal charges proceeding
The first charge sheet exhibited to the plaintiff’s affidavit shows that the first charge was laid on 18 October 2016.[34] So far as the records before the Court reveal, the plaintiff was granted bail at some time after that date and before 7 December 2016, because on the latter date the records before the Court show that there was an application made to revoke the plaintiff’s bail, which was granted.[35] Some of the subsequent charges show that it is alleged against the plaintiff that, having been granted bail, she did without reasonable excuse contravene conduct conditions by attempting to contact Mr Dobbs, for example on 11 November 2016 via Facebook Messenger.
[34]Exhibit FA-20 to the plaintiff’s first affidavit. The pages of the charge sheets are marked as derived from the police brief and are not in order. Some of the events the subject of the charges post-date the laying of the first charge (stalking) and must have been laid later.
[35]This appears from the certified extracts of the orders of the Magistrates’ Court referred to above – see [3].
I think it is reasonable to assume for present purposes that these events precipitated the revocation of the plaintiff’s bail and her being gaoled, but the facts are not entirely clear. The first hearing of the criminal charges proceeding was set for 28 March 2017. The plaintiff states that her lawyer told her on 23 March 2017 that she had not received the police brief and there was no point in talking to her about the case. By Tuesday 28 March 2017, the day set for the hearing, she had still not discussed the charges with her lawyer. On 28 March 2017, the criminal charges proceeding was adjourned to 4 April 2017. The certified extracts of the court orders note, rightly or wrongly, that the plaintiff refused to appear by audio-visual link. On 4 April 2017, much the same thing occurred and the matter was adjourned to 13 April 2017 with the orders of the court noting that the accused demands to be physically brought to the court. On 13 April, the matter was again adjourned to 4 May 2017 with the same comment as occurred also on 4 May 2017. On 25 May 2017, the criminal charges proceeding was again adjourned, this time to 20 November 2017 with the same note about the plaintiff refusing to appear by audio-visual link.
On 28 June 2017, the Magistrates’ Court records show that an application was made for the plaintiff to appear physically before the Court on 29 June 2017. On that date, the plaintiff deposes, a special mention was held. The police brief listed 15 witnesses but contained only two witness statements. The plaintiff complains that the court gave the police over 12 months to get the witness statements. In the upshot, the criminal charges were adjourned to 20 September 2017. On that day, the charges were adjourned for a special mention hearing on 6 October 2017. On that day an application was made for subpoenaed documents to be released to a certain person. On 15 November 2017, the plaintiff’s lawyer requested that Mr Dobbs be declared a protected witness to help ensure that Legal Aid funding was provided for a barrister to represent the plaintiff in court. On that day, an order was made that Mr Dobbs and Colleen Carlon (Oscar Dobb’s mother) are protected witnesses pursuant to s 355 of the Criminal Procedure Act 2009 (Vic) and it was ordered that Victoria Legal Aid provide the plaintiff representation for the purposes of cross-examination of those witnesses pursuant to s 357(2) of that Act.
There were apparently problems in the Dame Phyllis Frost Centre complying with court orders to convey the plaintiff to Court on appointed days for hearings. According to the plaintiff’s evidence, the matter had been listed on 20 November 2017 for two days, which was insufficient time for a full hearing. It came on for hearing on 21 November 2017, the hearing was adjourned to 15 May 2018.[36] At the hearing on 21 November 2017 the plaintiff was finally bailed on her own undertaking and released from gaol. It would seem that the criminal charges were part heard on that day.
[36]Plaintiff’s first affidavit, [42].
The plaintiff says that she had been in contact with her lawyer over the five and a half months before 21 November 2017 waiting for the hearing and always was advised that it was too soon to do anything. She maintains that no work was ever done on her case and she subsequently sacked them.[37] She maintains that her lawyers should have taken steps to make sure there was a rehearing of the intervention order, and that evidence was submitted to the court on her behalf but they did nothing and that has adversely affected her as a result.
[37]The plaintiff terminated their services on 23 April 2018: Trial Transcript 58.24; exhibit FATDR-5 to the plaintiff’s third affidavit.
The plaintiff gives a good deal of evidence of what occurred on 15 May 2018, which is the critical hearing day for the purposes of the application before me. But the defendant has put before the Court a transcript of the hearing on that day and that is a preferable source of the evidence.
15 May 2018 hearing
At the outset of the hearing, Counsel for the plaintiff announced to Magistrate Keil that he was unable to continue to represent the plaintiff. It emerged that on the previous occasion, Counsel representing the plaintiff had conceded some issues and evidence had been tendered without formal proof.[38] It is thus apparent from the transcript, that at the previous hearing, on 7 December 2017, evidence in support of the criminal charges had begun to be adduced. There were folders of evidence tendered before the Magistrate.
[38]Exhibit TD-1 to the second affidavit of Trent Dwyer made 12 November 2018, Transcript of Proceedings, Dwyer v Austin (Magistrates’ Court of Melbourne, Magistrate Keil, 15 May 2018) 4.2-3 (Transcript 15 May 2018).
The prosecutor informed the court that as a result of the conversation with the plaintiff that day everything, every word, will be in issue and that in the interests of justice the whole proceeding would have to start afresh.[39]
[39]Ibid 4.15.
Magistrate Keil decided he should recuse himself because he had formed certain conclusions regarding the evidence that had been given and an objective observer might apprehend he might be biased against the plaintiff.
There was a considerable discussion regarding the length of the hearing of the criminal charges and, in the end, the prosecutor informed the court that seven sitting days should be allowed and the Magistrate adjourned the hearing to 21 January 2019 on an estimate of seven sitting days. It was also discussed whether there was a need for a mention four weeks before that time in order to deal with administrative matters, including an application for Mr Dobbs to be a protected witness.[40]
[40]In the course of the hearing before me the plaintiff contended that s 355, of the Criminal Procedure Act 2009 (Vic), which had previously been employed in making an order that Mr Dobbs be declared a protected witness, did not apply to the criminal charges proceeding because div 3 of pt 8.2 of that Act (in which s 355 appears) applies to a criminal proceeding that relate wholly or partly to a charge for a sexual offence or an offence where the conduct constituting the offence consists of family violence within the meaning of the Family Violence Protection Act 2008 (Vic). It is not necessary to decide whether this is correct in this proceeding.
Much of the time taken in the hearing on 15 May 2018 was occupied in the plaintiff complaining about her treatment and the delays in both the hearing of the criminal charges and the final hearing of the intervention orders proceeding. The hearing of the application for a final intervention order was contemplated to take place on 11 September 2018, although no order to that effect was made.[41] That date seems to have been identified because the interim intervention order made on 11 September 2017 was contemplated to be in force for a period of 12 months. In fact, the certified extract of the order of the Magistrates’ Court made on 11 September 2017 purports to show that the interim order made that day will last until a final order is made.
[41]Transcript 15 May 2018 48.4-12.
The plaintiff made it perfectly clear in the course of the submissions she made to Magistrate Keil on 15 May 2018 that she wanted a hearing of the charges that had been laid against her. An example is as follows:
This court was told months and months and months ago that it [the hearing of the charges] would go for between seven and ten days. You have put my life on hold since 26 August 2016. I cannot go forward, cannot go back….This needs to be heard. It can’t keep being delayed and delayed and delayed.[42]
[42]Ibid 17.9–15
At this hearing the plaintiff also sought the return of her property that had been confiscated by the police when she was arrested. This included her laptop computer and telephone. After some debate, the Magistrate indicated he would order the return of the laptop and the prosecutor volunteered that it would be available at the Richmond Police Station the next day. There was some discussion about the laptop computer not being operative and the plaintiff complains in this proceeding that it had been broken or damaged by Victoria Police.
After the hearing on 15 May 2018, the plaintiff received an ‘Advice of Hearing Date’ from the Magistrates’ Court that the criminal charges proceeding had been adjourned from 15 May 2018 to 21 January 2019 at 9.30am for a ‘mention’. In handwriting on the document, it is said ‘Special mention listed on 10 December 2018 at 9.30 am. You are required to attend both hearing dates’.[43]
[43]Exhibit FA-7 to the plaintiff’s affidavit.
Shortly afterwards, the plaintiff received a ‘Notice of Hearing’ in relation to the intervention orders proceeding that it had been listed for a contested hearing before the court on 21 January 2019 and ‘a time of one day has been allocated for this hearing’.[44]
[44]Exhibit FA-8 to the plaintiff’s affidavit.
Plaintiff’s submissions
The plaintiff submitted that the interdependence of the three originating motions meant that it was appropriate to adjourn the hearing of this proceeding until all the proceedings could be heard sequentially. She submitted that the appeal underlying OM-1 (the judicial review of the striking out of the County Court appeal) needs to be heard before the final intervention order the subject of the intervention orders proceeding underlying OM-2 and the criminal charges proceedings underlying this proceeding (OM-3) otherwise the appeal would be ineffectual in providing any relief or justice. Similarly, the intervention orders proceedings underlying OM-2 need to be heard before the criminal charges proceedings underlying OM-3 otherwise the criminal charges proceedings will be decided on the basis of an incomplete, incorrect and oblique or invalid legal history.[45]
[45]Plaintiff’s outline of submissions, 22 October 2018, 13–15.
The plaintiff claims that the ‘record’ on which the originating motion for judicial review in this proceeding is based is the Advice of Hearing Date referred to above (see para [53]).[46] Instead of noting the seven day adjourned hearing starting on 21 January 2019, the Advice of Hearing Date states that a mention has been listed for that date. It also states that no plea has been taken whereas the plaintiff maintains a plea of not guilty was taken on 25 May 2017.
[46]Exhibit FA–7 to the plaintiff’s affidavit.
The plaintiff also complains that the ‘Notice of Hearing’[47] which states that an intervention order final hearing is to take place on 21 January 2019 is too late. She complains that 500 days have passed since the interim intervention order was made and 878 days will have passed since the first interim intervention order was made. She complains of the delay. She complains that only one day has been allowed for the final intervention order and submits that there are 14 witnesses and it cannot be heard in one day. She also complains that at some point the listing of the criminal charges proceeding for hearing on 21 January 2019 has been changed from a ‘mention’ date to a hearing, and that she was not notified of this change. She does not believe that she will receive a fair hearing in the Magistrates’ Court. She also complains about her detention in custody being unlawful and arbitrary and a lot else besides.
[47]Exhibit FA–8 to the plaintiff’s affidavit.
In relation to the defendant’s application summarily to dismiss the plaintiff’s proceeding, the plaintiff points to rr 22.17 and 22.18(4) of the Rules which provide, in effect, that an application for summary judgement is to be made by summons (r 22.17) and that the summons is to be served on the plaintiff not less than 14 days before the hearing (r 22.18(4)). No summons has been filed or served in relation to the application for summary judgment.
The plaintiff submits that the defendant’s application should be dismissed and the judicial review should be adjourned to be heard with the other two OMs. She says further, that in any event the dismissal of her proceeding pursuant to pt 4.4 of the CPA would be inconsistent with the overarching purpose, being to facilitate the just, efficient, timely and cost efficient resolution of the real issues in dispute and points to s 64 of the CPA which provides that a proceeding may proceed even if there is no real prospect of success if it is in the interest of justice to do so or the dispute is of such a nature that only a full hearing on the merits is appropriate. The plaintiff submits that this is a case where a full hearing on the merits is warranted.
The plaintiff also maintains that she did not agree to a summary hearing of the indictable stalking charge. She says she did not instruct her lawyers to agree for the matter to be heard summarily and that the question has never been raised with her. She claims that Magistrate Keil had known since 23 April 2018 that she was unrepresented, that no items (of evidence) had ever been tendered, conceded or otherwise in her presence and she has made it very clear to her lawyers and to the Court that the hearing of the matter would be fully contested and that all witnesses were required to give evidence.
Defendant’s submissions
The defendant submitted that the plaintiff’s claim should be summarily dismissed for the reasons set out in the following paragraphs.
In the plaintiff’s first ground it is said that the refusal of the Magistrates’ Court to hold a hearing within 12 months is a breach of s 211 of the Criminal Procedure Act. That section provides as follows.
Time limit for commencing trial for offences other than sexual offences.
The trial of a person for an offence (other than a sexual offence) must commence–
(a)within 12 months after the day on which the person is committed for trial in respect of the offence; or
(b)if no committal proceeding in respect of the offence is held, within 12 months after the day on which the indictment against the person is filed; or
(c)if a new trial is ordered by the Court of Appeal, within 6 months after the day on which the order is made; or
(d)if the period referred to in paragraph (a), (b) or (c) or any extension of that period is extended under section 247, within the extended period.
Section 211 clearly applies to trial on indictment following committal proceedings or where no committal proceedings are filed 12 months after the indictment is filed. The plaintiff’s matter was conducted at all times as a summary hearing within the criminal jurisdiction of the Magistrates’ Court.[48] This provision has no application in the plaintiff’s case, unless she elects to have the indictable offence go to a committal. That will potentially divide the charges to be heard summarily from the indictable offence.
[48]Criminal Procedure Act 2009 (Vic) s 28.
The continued hearing of the criminal charges proceedings on 15 May 2018 showed that the plaintiff had by her conduct consented to the charges being heard summarily, as required by s 29 of the Criminal Procedure Act 2009 (Vic). It is very likely that the plaintiff’s legal representatives who appeared at the earlier hearing also expressly or impliedly consented on her behalf.
The defendant submitted that it is clear from the transcript of the hearing on 15 May 2018 that:
(a) the Magistrate could not hear the contest on 15 May 2018, given the plaintiff was at that stage unrepresented, withdrew her consent to the tendering of evidence and required all witnesses to give evidence;
(b) the Magistrate was prudent in excusing himself from any further hearing of the matter, in light of the evidence that had already been placed before him;
(c) the Magistrate was correct in finding, in light of the prosecutor’s submissions, that seven days was required for a full contest on the charges;
(d) the Magistrate relisted the hearing of the charges against the plaintiff;
(e) the Magistrate listed the hearing to commence at the first available date for a hearing of seven days duration;
(f) the purpose of the mention on 10 December was to hear the application that the complainant be declared a protected person and to determine whether the plaintiff would require legal representation to cross-examine him.
It was submitted, in light of all these facts, that the plaintiff has failed to establish the decision of the Magistrate on 18 May 2018 amounts to an error of law on the face of the record and the application should be summarily dismissed.
Further, the plaintiff contended on 15 May 2018, and continues to contend, the intervention order made in the Magistrates’ Court was invalid. It is open to the plaintiff to raise this issue in her defence at the criminal charges hearing.
The plaintiff appears, in her submissions, to be seeking relief inconsistent with that set out in her originating motion. The plaintiff’s originating motion has not been amended to reflect that any further relief is sought. She seeks only that the criminal charges be remitted to the Magistrate’s Court for hearing. The only application made by the plaintiff before the Magistrate was that the hearing of the criminal charges be heard forthwith. It appears that, contrary to the relief sought in her amended originating motion, the plaintiff is now seeking to delay the hearing of the criminal charges proceeding.
It appears the plaintiff now seeks:
(a) that the criminal charges proceeding be stayed until after the hearing, if any, of the appeal in the County Court, against the making of the intervention order;
(b) the criminal hearing be stayed until after the hearing in the Magistrates’ Court in relation the intervention order;
(c) the criminal hearing be conducted in the County or Supreme Court, as the plaintiff contends she cannot receive a fair hearing before any Magistrate of the Magistrates’ Court.
None of these applications were made to Magistrate Keil on 15 May 2018. It was submitted that, without any amendments to the plaintiff’s originating motion setting out what error or errors the plaintiff contends the Magistrate made in light of the apparent amended relief sought, supported by an affidavit setting out the evidence in support of this contention and by submissions demonstrating the relief sought in this Court is based on proper legal principles, the plaintiff’s proceeding should be dismissed.
Summary judgment application
The defendant makes application for summary judgment against the plaintiff under the CPA. The plaintiff complains that no summons has been issued as required by the Rules, despite the order made by the Judicial Registrar allowing such an application to be listed for hearing on 30 November 2018.
The resolution of this dispute is, in my view, to be found in the overarching purpose of the CPA and the Rules. They are to facilitate, not obstruct, the just, efficient, timely and cost effective resolution of the real issues in dispute.[49] If the plaintiff’ submission were accepted it would not serve any purpose, let alone the overarching purpose. It would delay the resolution of the real issues, which as I will attempt to show, are not susceptible to judicial review in this proceeding.
[49]CPA s 7(1).
The test to be applied where summary judgment is sought is now well known. It is sufficient to refer to Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd,[50] where Warren CJ and Nettle JA (as he then was) summarised the test to be applied under s 63 as follows:
[50][2013] VSCA 158.
(a) the test for summary judgment under s 63 of the CPA is whether the respondent to the application for summary judgment has a ‘real’ as opposed to a ‘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 Industries Inc v Commissioner for Railways(NSW);[51]
(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; and
(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 of 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.[52]
[51](1964) 112 CLR 125 (General Steel).
[52]Ibid [35].
If there is no real prospect of success, a court may nevertheless allow a matter to proceed to trial if:
(a) it is not in the interests of justice to summarily dispose of the proceeding (s 64(a) of the CPA); or
(b) the dispute is of such a nature that only a full hearing on the merits is appropriate (s 64(b) of the CPA).
Consideration
It is in my view inappropriate to adjourn the hearing of this proceeding until the other two proceedings are ready to be tried. It is not known whether the plaintiff will be able to serve Mr Dobbs without first seeking a variation of the intervention order presently in force.
In this regard I note that the certified extracts of the first interim order made on 26 August 2016 names Mr Dobbs as the ‘affected person’ and provide that the plaintiff must not:
(a) stalk the protected person(s);
(b) commit prohibited behaviour towards the protected person(s);
(c) attempt to locate, follow the protected person(s) or keeping him/her /them under surveillance (sic);
(d) publish on the internet, by email or other electronic communication any material about the protected person(s) and remove any material already posted about the protected person within 48 hours;
(e) contact or communicate with a protected person by any means;
(f) approach or remain within 5 metres of a protected person;
(g) go to or remain within 200 metres of THE PREMISES or any other places where a protected person lives or works;[53]
(h) get another person to do anything the respondent must not do under this order;
(i) the respondent may communicate with a protected person through a lawyer but only if the respondent does not stalk a protected person or engage in prohibited behaviour while doing so.
[53]The certified extract of the order does not identify the premises.
The final order made on 28 September 2016 appears to be in the same form. The second interim order made on 11 September 2017 is in slightly different terms. It names the ‘affected person’ as Mr Dobbs and provides that the respondent must not:
(a) stalk the protected person(s);
(b) commit prohibited behaviour towards the protected person(s);
(c) attempt to locate, follow the protected person(s) or keeping him/her /them under surveillance;
(d) publish on the internet, by email or other electronic communication any material about the protected person(s) and remove any material already posted about the protected person within 48 hours;
(e) contact or communicate with a protected person by any means;
Whether or not some order might be made to permit service, or substituted service, upon Mr Dobbs remains to be seen. That will depend, in the first instance, on the outcome of the appeal that is presently before Garde J.
The adjournment of this proceeding for an indefinite period may interfere with the conduct by the Magistrates’ Court of the criminal charges without there having been any determination of the application made by the plaintiff to quash the orders made on 15 May 2018. That may be the case because the Magistrates’ Court will be reluctant to proceed with the criminal charges whilst this application is pending. In any event, this will only serve to defeat the very thing that the plaintiff sought to have at the hearing on 15 May 2018, that is an immediate continuation of the hearing of the criminal charges and the intervention orders proceeding.
Another important factor in considering the application for an adjournment is whether there is any utility in an adjournment. That depends on whether there is any real prospect of the proceeding resulting in the quashing of the orders of the Magistrates’ Court made on 15 May 2018. This of course overlaps with the application made by the defendant for summary judgment.
I agree with the submissions made by the defendant that the relief the plaintiff now appears to seek by the sequential hearing of her originating motions is different from the relief sought in the amended originating motion, although it has some similarity to the original idea behind the originating motion before its amendment. The vice in either form of relief, indeed in the whole notion that this Court can deal with the intervention orders proceeding and the criminal charges, is the limitation on the power of the court in a judicial review proceeding. I have set out above (see paras [21]-[27]), a short statement of the applicable law that imposes this limitation on the court.
Whichever formulation of the relief sought in the originating motion is advanced in this proceeding, it must fail. There is no error of law on the face of the record, and that is because the record is not comprised solely, as the plaintiff contends, of the ‘Advice of Hearing Date’.[54] The record comprises also the transcript of the hearing on 15 May 2018.
[54]Exhibit FA–7 to the plaintiff’s first affidavit.
Although at common law the ‘record’ does not ordinarily include the transcript, the exhibits or the reasons for decision,[55] s 10 of the Administrative Law Act1978 (Vic) provides that any statement by a tribunal or inferior court of its reasons for decision, whether made orally or in writing, is taken to form part of the decision, and accordingly to be incorporated in the record. It has been held that s 10 constitutes statutory provision to the contrary of the general rule that a statement of reasons by an inferior court is not part of the record.[56] In addition, the record may be expanded to include the transcript of the proceeding if in fact it is incorporated into the record by reference.[57] A reference in reasons for decision to evidence, or to the submissions of Counsel, might thereby make the evidence or the submissions part of the record.[58]
[55]Craig v South Australia (1995) 184 CLR 163, 181 and the cases at footnote 73.
[56]Thompson v His Honour Judge Byrne (1998) 2 VR 274, 280; The Returned & Services League of Australia (Victorian Branch) Inc v Liquor Licensing Commission (1999) 2 VR 203, 209; Kuek v Wellens [2002] VSCA 31, [14].
[57]Craig v South Australia (1995) 184 CLR 163, 181–2.
[58]Sidebottom v County Court of Victoria [2001] VSC 18.
The transcript of the hearing on 15 May 2018, which includes the Magistrates’ decisions the subject of the judicial review, have been included without objection in the Court Book. The plaintiff has relied in her affidavits on her recollection of what occurred on 15 May 2018. It is only fair to allow the defendant to refer to the transcript of what occurred. The effect is that both parties rely on what occurred. It is, accordingly, a part of the record for the purposes of the plaintiff’s application for judicial review.
It is plain from the transcript that the Magistrate did correctly recuse himself from further hearing of the criminal charges proceeding. It is apparent from the submissions made by Counsel for the plaintiff that evidence had been tendered in Court previously, purportedly by consent.[59] The Magistrate indicated, as I have said, that an objective observer might conclude that he might be biased, that is to say, it was a case of what is described in the law as ‘apprehended bias’ and it was proper in those circumstances for the Magistrate to recuse himself.
[59]Counsel previously retained by the plaintiff in the first stage of hearing the criminal charges is required by custom and courtesy to the Court to appear to announce that he cannot continue to appear notwithstanding his retainer having been terminated between the previous hearing and 15 May 2018.
That recusal brought with it the necessity to adjourn the hearing of the criminal charges proceeding. It also appears that the time allowed for the continued hearing of the criminal charges was two days. Once the plaintiff made it clear that she required every witness to be called, and there were about 15 witnesses, it was clear that the trial would last longer than two days. There is no error involved in these circumstances in requiring the criminal charges to be adjourned to a date and time when a different Magistrate could hear the charges over a longer period.
It is also clear from reading the transcript of the hearing on 15 May 2018 that by the conduct of her Counsel and herself, the plaintiff had indicated her consent to the summary hearing of the indictable offence of stalking. As I understand the position, such consent having been given can be withdrawn and that charge can be the subject of a committal and trial in the County Court. But the plaintiff needs to be aware that the level of the penalty that may be imposed if that charge is proven may be greater if the matter proceeds in the County Court.
The second ground advanced in OM-3 (para [2(b)] above) advances the somewhat speculative proposition that after the hearing on 15 May 2018 the Magistrate listed the proceedings for further hearing on 21 January 2019 as a ‘mention’. True it is that the notice sent to the plaintiff (the Advice of Hearing Date) does specify that the case was listed for a ‘mention’ on 21 January 2019. But as the plaintiff herself points out in her third affidavit[60] and outline of submissions[61] at some point between her raising in this Court the fact that the matter had been listed for a ‘mention’ on 21 January 2019 and the next time she appeared in this court on 12 September 2018, the Magistrates’ Court changed the hearing type from a ‘mention’ to a ‘hearing’ on its website.
[60]Plaintiff’s third affidavit, [7]-[9].
[61]Plaintiff’s outline of submissions, 22 October 2018, [34].
It is regrettable that the record keeping at the Magistrates’ Court in this case seems to have been lacking in precision. But that does not given rise to any reason to quash the order to adjourn the proceedings ‘for another mention’ as sought in the originating motion. That is because, properly analysed, the whole of the record of the orders made by the Magistrate on that day show that the criminal charges were adjourned for a hearing of seven days to commence on 21 January 2019 and not a ‘mention’.
The last ground upon which the plaintiff relies in her OM in this proceeding turns on the failure of the Magistrate to hear the criminal charges then and there and to relist them for a hearing. As I have explained, on the face of the transcript it is entirely justified for the Magistrate to recuse himself. That means that the matter must start afresh. However unfortunate it is that this matter has dragged on for so long, the fact that the Magistrate recused himself brings with it the consequence that has eventuated. There is no error in the course he adopted.
There is therefore no utility in adjourning the hearing of the proceeding, as it cannot succeed. It follows that there is no real prospect of the application succeeding, in whatever formulation advanced.
Conclusion
I have reached the conclusion, for the reasons set out above, that this proceeding should not be adjourned, as the plaintiff requested, to be heard at the same time as her other two judicial review proceedings and, further, that this proceeding has no real prospect of success and should be summarily dismissed.
I will hear the parties as to the appropriate orders to be made at a future date to be arranged.
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