Baid v Agrawal
[2022] VSC 87
•24 February 2022
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S ECI 2021 00382
| SAURABH BAID | Plaintiff |
| v | |
| SONU AGRAWAL | First defendant |
| JUDGE LAURISTEN, COUNTY COURT OF VICTORIA | Second defendant |
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JUDGE: | Irving AsJ |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 14 October 2021 |
DATE OF JUDGMENT: | 24 February 2022 |
CASE MAY BE CITED AS: | Baid v Agrawal & Anor |
MEDIUM NEUTRAL CITATION: | [2022] VSC 87 |
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ADMINISTRATIVE LAW – Judicial Review – Application for judicial review of County Court judge’s order granting final personal safety intervention order in appeal from order made by magistrate pursuant to Personal Safety Intervention Orders Act 2010 – ss 5-10, 47, 61, 97 - Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43, Hossain v Minister for Immigration and Border Protection [2018] HCA 34 - MZAPC v Minister for Immigration and Border Protection [2021] HCA 17.
PRACTICE AND PROCEDURE – Application for summary dismissal of application for judicial review – Not reasonably arguable that County Court judge made reviewable error – Proposed grounds for judicial review have no prospects of success - Judicial review has no prospects of success – Summary dismissal granted - Civil Procedure Act 2010, ss 62, 63 - Shan v Zhang & Ors [2021] VSC 452, applied - Craig v South Australia (1995) 184 CLR 163.
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APPEARANCES: | Counsel | Solicitors |
| The Plaintiff, in person | Self-represented litigant | |
| For the First Defendant | Mr Richardson of counsel | Knight Family Lawyers |
| No appearance for the Second Defendant |
HIS HONOUR:
Introduction
This proceeding concerns an application by the plaintiff, Mr Baid, for judicial review of the decision of the County Court of Victoria (County Court), on appeal from the Magistrates’ Court of Victoria (Magistrates’ Court), to make a personal safety intervention order (PSIO) against him. Mr Agrawal, the first defendant, is named as the protected person in the PSIO. PSIO are made under the Personal Safety Intervention Orders Act 2010 (PSIO Act).
In accordance with the normal practice, the second defendant entered an appearance and advised that it did not intend to take any active role in the proceeding and would abide by the decision of this Court in accordance with the Hardiman principle.[1]
[1]See R v Australian Broadcasting Tribunal; Ex parte Hardiman & Ors (1980) 144 CLR 13, [35]–[36].
By summons filed 12 August 2021, Mr Agrawal seeks summary judgment against Mr Baid pursuant to s 62 of the Civil Procedure Act 2010 (CPA) and an order for Mr Baid to pay his costs of the proceedings.
For the reasons that follow, I have decided to grant the application for summary judgment and will dismiss the proceedings.
Background
Mr Baid and Mr Agrawal met and became friends in Nepal. After moving to Australia in 2005 and 2006 respectively, they formed a successful international education consultancy business, AECC Global Pty Ltd (AECC).
By around late 2017, Mr Baid and Mr Agrawal held differing views as to the management of AECC and associated entities, which led to extensive litigation in the Supreme Court. On 25 October 2018, Mr Baid and Mr Agrawal signed a deed of agreement to settle their dispute. Under that deed, Mr Baid agreed to transfer his shares in AECC and related entities to Mr Agrawal in return for payment of approximately $3.5 million. Mr Baid and Mr Agrawal fell into further dispute over the implementation of the deed, leading to further proceedings in the Supreme Court of Victoria in 2019. That proceeding came to an end when Mr Baid and Mr Agrawal signed another deed of agreement on or about 13 August 2019 (second deed).
Mr Baid alleges that at the time he and Mr Agrawal attended the solicitors’ office to sign the second deed, he told Mr Agrawal he intended to expose Mr Agrawal’s fake citizenship, and that in response Mr Agrawal threatened his life. Mr Agrawal denies this.
On 4 November 2019, an incident occurred at a bar in which Mr Baid struck Mr Agrawal. Mr Baid maintains that in fact there were two incidents that day and that Mr Agrawal was intoxicated at the time and was behaving aggressively toward him. He says that when he struck Mr Agrawal, he was acting in self-defence. Mr Agrawal says that there was one incident, he was not intoxicated, and that Mr Baid, unprovoked, struck him in the face.
Mr Baid’s father owns a business in Nepal called Bimarsha, which publishes a weekly newspaper. On 29 November 2019, Bimarsha published an article entitled ‘Family of Former Chairperson of AECC now Stateless Citizens’. The article asserted that Mr Agrawal’s family is now stateless and called for the revocation of Mr Agrawal’s Nepalese/Indian citizenship and his Australian citizenship.
On 12 March 2020, on Mr Agrawal’s application, the Magistrates’ Court made a PSIO against Mr Baid. Mr Baid was not present at the time the order was made. Mr Baid says that Mr Agrawal purposely gave the Magistrates’ Court an incorrect address for Mr Baid so that he was not aware of the hearing.
On 7 April 2020, Mr Baid filed an appeal in the County Court pursuant to s 96 of the PSIO Act. The appeal was by way of rehearing, such that Mr Agrawal’s application for a final PSIO against Mr Baid was heard afresh on 30 October 2020 before Judge Lauritsen (Rehearing).
On 4 November 2020, Judge Lauritsen delivered his ruling. His Honour made a PSIO against Mr Baid, albeit on slightly different conditions to those under the Magistrates’ Court order of 12 March 2020.
On 9 February 2021, Mr Baid filed an originating motion for judicial review of Judge Lauritsen’s order. He seeks an order quashing the PSIO made by Judge Lauritsen on 4 November 2020.
Mr Agrawal has applied for summary judgment against Mr Baid pursuant to s 62 of the CPA.
Mr Baid self-represented
Mr Baid represented himself at the hearing of Mr Agrawal’s summary judgment application. In Roberts v Harkness,[2] the Court of Appeal set out the principles relevant to the Court’s assistance to self-represented litigants to ensure a fair hearing. I sought to apply these principles in this case.
[2][2018] VSCA 215, [9]-[10] and [49].
Rehearing transcript
Mr Agrawal’s application was heard on 14 October 2021. At the hearing, neither party produced a copy of the transcript of the Rehearing, although Mr Agrawal had filed an affidavit which exhibited a transcript of Judge Lauritsen’s ruling on 4 November 2020. It was apparent that consideration of Mr Baid’s judicial review application required the Court to consider the transcript of the Rehearing. Accordingly, after the hearing, this Court requested a copy of the transcript, which was received on 29 November 2021. Having received the transcript, the Court provided both parties with a copy and invited the parties to file any further submissions in relation to the transcript by 10 December 2021. This deadline was extended on the application of the parties. On 21 December 2021, Mr Agrawal provided short written submissions. Mr Baid did not provide any further submissions.
Personal safety intervention orders
An application for judicial review of the County Court Rehearing can only be made on the basis of jurisdictional error.[3] It is not a review of the merits of the decision. However, in order to consider whether jurisdictional error has arisen, it is important to understand the statutory framework in which the decision was made.
[3]Section 97 of the PSIO Act.
The court’s power to make a PSIO is found in s 61 of the PSIO Act. The court may make a final PSIO order if the court is satisfied, on the balance of probabilities, that the respondent has committed prohibited behaviour and is likely to do so again, and the respondent’s prohibited behaviour would cause a reasonable person to fear for his or her safety. The respondent and the affected person must not be family members. The court must be satisfied that it is appropriate in all the circumstances of the case to make a final PSIO.
‘Prohibited behaviour’ is defined in s 5 of the PSIO Act to include assault, harassment, property damage or interference or making a serious threat. ‘Harassment’ is defined in s 7 of the PSIO Act to mean a course of conduct by a person towards another person that is demeaning, derogatory or intimidating and includes conduct that is carried on, by or through a third person.
The court must not make a final order if it is satisfied on the balance of probabilities that the respondent engaged in the prohibited behaviour in the normal course of a lawful business, including that of any body whose business is the publication of news or current affairs material: s 61(4) PSIO Act.
The court may make a final order whether or not some or all of the prohibited behaviour occurred outside Victoria so long as the affected person was in Victoria at the time the conduct occurred: s 61(5) PSIO Act.
In a proceeding for a PSIO, the court may inform itself in any way it thinks fit, despite any rules of evidence to the contrary. The court may refuse to admit or may limit the use to be made of evidence if the court is satisfied it is just and equitable to do so or the probative value of the evidence is substantially outweighed by the danger that the evidence may be unfairly prejudicial to a party or misleading or confusing: s 47 PSIO Act.
The Rehearing
In accordance with s 96 of the PSIO Act, Judge Lauritsen heard Mr Agrawal’s application for a final PSIO afresh. At the Rehearing, Mr Agrawal argued that Mr Baid’s prohibited behaviour consisted of the assault on 4 November 2019 (when he was struck on the face) and harassment through the publication of derogatory articles by Mr Baid’s father in his newspaper, Bimarsha.
In relation to the assault, Mr Agrawal’s case was that there was only one incident on 4 November 2019 during which Mr Baid struck him in the face. Mr Agrawal saw a medical practitioner one or two days after the incident. The report of the medical practitioner was not tendered at the Rehearing. Mr Agrawal saw a dentist, Dr Hii, 5 days after the incident. Dr Hii’s letter of 9 November 2019 was tendered in evidence. The letter stated that Mr Agrawal had attended that day complaining of pain in the area of the left condyle and difficulty opening his mouth.
In relation to the alleged harassment, Mr Agrawal tendered three Bimarsha articles. Only one of those articles had been translated into English. Mr Baid’s legal representative raised the adequacy of the translation and requested a more accurate translation. His Honour declined to require Mr Agrawal to provide a further translation and told Mr Baid’s legal representative it was a matter that could be raised in cross-examination. The article was then tendered by Mr Agrawal’s legal representative with the Judge confirming that Mr Baid’s legal representative had no objection to the tender.
The translated article asserted that Mr Agrawal and his family were now all stateless citizens and called for the revocation of Mr Agrawal’s Nepalese/Indian and Australian citizenship.
Mr Agrawal asserted that the article referenced details about him and his dispute with Mr Baid over AECC management which only Mr Baid would have known. He submitted that Mr Baid had passed on this information to his father, for publication in Bimarsha. Mr Agrawal pointed out that no further articles had been published since the PSIO was made and so the Court should be satisfied that the harassment was likely to continue unless a fresh PSIO was made by the County Court.
Mr Baid challenged the making of a PSIO on three grounds:
(a) first, he said that the alleged assault occurred in circumstances of self-defence;
(b) second, he denied inducing his father to publish articles about Mr Agrawal; and
(c) third, he said the publishing of articles by Bimarsha could not constitute harassment because the matters stated in these articles were true.
Mr Baid’s submitted the incidents on 4 November 2019 had to be understood in the context of Mr Agrawal’s earlier threat to kill him, made on 13 August 2019. Mr Baid said that, on the evening of 4 November 2019, Mr Agrawal was intoxicated and aggressive. Mr Baid said that he was enjoying a drink with a mutual friend when Mr Agrawal joined them. Mr Baid says that Mr Agrawal roughly poked Mr Baid in the ribs and Mr Baid, fearing he was being stabbed, made a defensive move with his hand that may have resulted in his hand coming into contact with Mr Agrawal’s face. Mr Baid says he immediately left the venue but was pursued by Mr Agrawal who, in a second incident that night, attempted to kick Mr Baid. Mr Baid says that in defending himself, he again may have inadvertently struck Mr Agrawal.
In relation to the Bimarsha articles, Mr Baid’s case was that his father was a well‑respected journalist with over 25 years of experience and that Mr Baid had no part in providing information to his father about Mr Agrawal or his family. He said he had not influenced his father to cause the articles to be published.
Additionally, Mr Baid argued that the statements made in the Bimarsha articles were true and thus could not constitute harassment. In order to establish the truth of the statements in the articles, Mr Baid’s legal representative attempted several times to cross-examine Mr Agrawal about his citizenship. On each occasion, Mr Agrawal’s legal representative objected to the questions on the basis of their irrelevance. On each occasion, Judge Lauritsen upheld the objection.
The Rehearing proceeded over two days and was conducted by audio-visual link. The transcript of the hearing shows that at several points during the hearing, the Judge was having difficulty hearing. The transcript is littered with the Judge’s requests that various participants mute themselves to minimise feedback. The evidence was all taken on the first day. The second day of the hearing was reserved for submissions. When Mr Baid’s legal representative commenced his submissions, the Judge was having such difficulty hearing that the legal representative had to leave the audio‑visual link and re-connect by phone, meaning that his submissions were given by audio only with no visual link. The transcript shows that once the legal representative joined the link by audio only, the Judge’s difficulties hearing him were eliminated.
Judge Lauritsen delivered his ruling at the conclusion of the hearing. His Honour subsequently revised the transcript into unpublished reasons for ruling: Baid v Agrawal [2021] VCC 1138.
In his reasons, the Judge outlined the history of the relationship between Mr Baid and Mr Agrawal, the breakdown of their business relationship and the subsequent deeds of agreement and litigation. His Honour then proceeded to find that, having heard the conflicting evidence, he did not accept that Mr Agrawal had made the threat to kill Mr Baid on 13 August 2019. His Honour then went on to outline both Mr Agrawal’s and Baid’s versions of the events of 4 November 2019, including Mr Baid’s assertion that he had acted in self-defence. His Honour noted the injuries described by Mr Agrawal, that there was no evidence of any intervening event between 4 November 2019 and when Mr Agrawal consulted Dr Hii on 9 November 2019. His Honour noted the contents of Dr Hii’s letter. Judge Lauritsen found that the extent of the injury indicated that the blow must have been significant and that this ‘sits very uneasily with Mr Baid’s explanation of his interactions with Mr Agrawal’. His Honour noted that the:
fact that Mr Baid is right-handed and that the blow was struck to the right side of Mr Agrawal’s face is interesting, but is in no way conclusive.
His Honour was satisfied that Mr Baid struck Mr Agrawal in the way Mr Agrawal described.
His Honour then turned to articles published by Bimarsha, including specifically the translated article published on 29 November 2019. His Honour stated:
History is littered with examples of one group calling for drastic action against another group within a country, accompanied with the accusation of disloyalty to the country. It is very dangerous. Even in translation the tone of the article is very fiery. The article then focuses on the activities of AECC and its associated companies, the involvement of Mr Baid and his family.
The article resonates with an immense hostility shown by Mr Baid’s father to Mr Agrawal and his family. The cause of the hostility is the treatment of his son by Mr Agrawal and his family. It calls for drastic action against Mr Agrawal and his family. In effect the article calls them criminals and traitors. The fact that this article was published more than a year after the settlement is very significant for it shows an unabated hostility between one family to another with potentially serious consequences. Much of the company information in the article must have come from Mr Baid.
Returning to the legislation. I am satisfied Mr Baid struck Mr Agrawal on 4 November 2019. In light of the above article there is hostility between the families, with Mr Baid’s father calling for drastic action against Mr Agrawal and his family. Since this article was published in November 2019 there is every likelihood of great tension between these men continuing. Mr Agrawal remains at risk of further assault at the hands of Mr Baid. A reasonable person in the picture of Mr Agrawal would fear for his safety at the hands of Mr Baid. Mr Baid has engaged in prohibited conduct and is likely to do so again unless restrained. However I do not consider the actions of Mr Baid on the evidence before me constitute stalking.
I turn now to Mr Baid’s application for judicial review in this Court.
Mr Baid’s application for judicial review
Material
In support of his judicial review application and in opposition to Mr Agrawal’s application for summary dismissal, Mr Baid relied upon:
(a) affidavits he had affirmed on 1 December 2020, 13 September 2021 and 14 October 2021; and
(b) outline of submissions dated 12 October 2021.
Mr Baid’s affidavit of 1 December 2020 contains much information that is not relevant to his judicial review application, because it seeks to provide evidence that was either provided in the Rehearing before Judge Lauritsen, or is additional clarifying evidence that was not given in the Rehearing before Judge Lauritsen. Mr Baid’s second affidavit affirmed on 13 September 2021 largely repeats and expands on the evidence, information and issues provided in his first affidavit. In order to avoid repletion, I have not summarised the contents of this affidavit.
Mr Baid’s third affidavit affirmed 14 October 2021 outlines his request to Judge Lauritsen’s chambers for a copy of the transcript of the Rehearing. This affidavit also attaches two documents that Mr Baid says were ‘tendered on the appeal’. The first is a report from Dr Hii dated 9 November 2019. The second document is the Bimarsha article and its translation Mr Baid says were referred to by Mr Agrawal at the Rehearing.
Mr Agrawal objects to the admission of Mr Baid’s third affidavit, including its exhibits, to the extent it seeks to include evidence that was not tendered on the Rehearing. In considering Mr Agrawal’s application for summary judgment of Mr Baid’s judicial review application, I have not considered any evidence that was not before the Court on the Rehearing.
Grounds of judicial review
Mr Baid’s originating motion sets out six grounds of review:
(a) Ground one
The County Court judge did not give proper weight to relevant evidence and relied too much on evidence that was irrelevant.
(b) Ground two
The Magistrates’ Court should not have made the PSIO on 12 March 2020 because Mr Baid was not present. The Magistrates’ Court should have adjourned the application.
(c) Ground three
The County Court judge did not consider that Mr Agrawal had purposely provided an incorrect address for Mr Baid to the Magistrates’ Court and, as a consequence, Mr Baid only became aware of the court’s decision when he was served with the PSIO by the police.
(d) Ground four
The County Court judge had already made up his mind prior to the appeal hearing and before submissions were made.
(e) Ground five
The County Court judge largely ignored and did not give proper consideration to Mr Baid’s supporting documents.
(f) Ground six
The County Court judge did not allow Mr Baid to cross-examine Mr Agrawal about his and his family’s citizenship.
Mr Baid’s originating motion also complains that during the hearing, which occurred virtually, he experienced technological issues and was told to disconnect from the audio-visual platform and reconnect to the hearing by telephone. Mr Baid says it is thus doubtful that Judge Lauritsen could hear his arguments properly because of the technological interference.
Mr Baid’s grounds of review are largely self-explanatory. I do, however, note that in relation to ground four, Mr Baid does not explain why he thinks the Judge made up his mind before the hearing. Mr Baid does refer to the fact that his legal representative was not allowed to cross-examine Mr Agrawal on the issue of his citizenship, while the Judge heard Mr Agrawal’s legal representative on that matter - albeit in the context of the allegation of harassment.
With respect to ground five, Mr Baid says that the Judge did not take into account several matters including:
(a) the technological issues that occurred at the hearing that stopped his legal representative making his final submissions by video link. Mr Baid says that his legal representative had to make those submissions by telephone and ‘it is doubtful if the Judge heard the matter properly given the restrictions of the poor technology’;
(b) evidence crucial to Mr Baid’s assertion that any action taken by Mr Baid on 4 November 2019 was taken in self-defence. This evidence included that Mr Agrawal had threatened to kill Mr Baid on 13 August 2019, and that Mr Baid had himself applied for a PSIO against Mr Agrawal – although that application did not ultimately progress;
(c) evidence that Mr Baid’s father had lodged complaints and sought security protection against Mr Agrawal’s family in Nepal;
(d) that Mr Agrawal only applied for a PSIO against Mr Baid after he became aware that Mr Baid had made an application for a PSIO against Mr Agrawal;
(e) that Mr Agrawal did not remember what side of the face Mr Baid hit him on in self-defence, nor that there were two incidents between the men on 4 November 2019;
(f) the delay in Mr Agrawal obtaining medical attention, which Mr Baid asserts demonstrates that Mr Agrawal was exaggerating his injury;
(g) that the medical reports tendered at the hearing contained largely information provided by Mr Agrawal to the health practitioners;
(h) that on 9 June 2020, Victoria Police informed Mr Baid they had decided not to pursue charges against Mr Baid in relation to the incident on 4 November 2019;
(i) that Mr Agrawal has been defaming Mr Baid to various Australian, Canadian and United Kingdom universities; and
(j) that at the Rehearing, Mr Agrawal stated that various things published in Bimarsha were ‘fake’ but did not produce any evidence to support this claim.
By the time Mr Baid’s judicial review application came before me for hearing, Mr Baid had considerably refined his case. In his outline of submissions Mr Baid identified the jurisdictional error as follows:
(a) the Judge failed to identify the correct issue, which was to consider whether Mr Baid acted in self-defence when his hand made contact with Mr Agrawal on 4 November 2019, in particular, having regard to the evidence that Mr Agrawal was intoxicated and behaving aggressively at the time of the assault;
(b) the Judge made an error in finding that the dentist, Dr Hii, had made a mistake in his report about which side of Mr Agrawal’s face was injured and that the dentist’s report was consistent with Mr Baid’s version of events; and
(c) the Judge made an error in finding that the Bimarsha article constituted harassment under the PSIO Act, that would elevate the risk of future prohibited behaviour by Mr Baid.
I turn now to Mr Agrawal’s application for summary judgment of the proceeding.
Principles relevant to summary judgment
Section 62 of the CPA provides that a defendant in a civil proceeding may apply to the Court for summary judgment in the proceeding on the ground that a plaintiff’s claim or part of that claim has no real prospect of success. Section 63 empowers the Court to give summary judgment in any civil proceeding, on the application of a defendant, if satisfied that a claim or part of a claim has no real prospect of success. Section 64 provides that a court may order a matter to proceed to trial if the court 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 principles to be applied on an application under s 62 of the CPA for summary judgment are well established. Those principles were recently summarised by Delany J in Shan v Zhang & Ors:[4]
[4][2021] VSC 452 (Craig).
The Court may order summary judgment if a claim has no real prospect of success. The test is well established. In submissions filed on behalf of Min Ren the principles were summarised as follows:
(a)the test is whether the respondent to an application 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 comparison to the ‘hopeless’ or ‘bound to fail’ test enunciated in Dey and General Steel;
(c)‘the ”no real prospects of success” test is to some degree mor liberal than Dey and General Steel. It permits of the possibility of cases in which, although the plaintiff’s case is not ”hopeless” of ”bound to fail”, it does not have a real prospect of succeeding’;
(d)the court’s power under section 63 is not to be exercised lightly;
(e)the power under section 63 ‘should not be exercise[d] 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 where the application is supported by evidence’;
(f)the court is to have regard to the overarching purpose of the CPA, as set out in section 7(1) of the CPA, being ‘to facilitate the just, efficient, timely and cost-effective resolution of the real issues in dispute.’[5]
[5]Ibid, [31] (citations omitted).
Principles relevant to judicial review on the basis of jurisdictional error
In Craig v South Australia,[6] the High Court provided the following guidance about what constitutes jurisdictional error by an inferior court:
[6](1995) 184 CLR 163.
(a)An inferior court falls into jurisdictional error if it mistakenly asserts or denies the existence of jurisdiction or if it misapprehends or disregards the nature or limits of its functions or powers in a case where it correctly recognises that jurisdiction does not exist.
…
(f)Jurisdictional error will occur where an inferior court disregards or takes account of some matter in circumstances where the statute or other instrument establishing it and conferring its jurisdiction requires that that particular matter be taken into account or ignored as a pre-condition of the existence of any authority to make an order or decision in the circumstances of the particular case
(g)An inferior court will exceed its authority and fall into jurisdictional error if it misconstrues that statute or other instrument and thereby misconceives the nature of the function which it is performing or the extent of its powers in the circumstances of the particular case. In this case the line between jurisdictional error and mere error in the exercise of jurisdiction may be particularly difficult to discern;
(h)The distinction between jurisdictional error and error within jurisdiction has been seen as effectively abolished in England, but not in Australia, so that Lord Reid’s comment in Anisminic Ltd v Foreign Compensation Commission should not be accepted here as an authoritative statement of what constitutes jurisdictional error by an inferior court for the purposes of certiorari.
(i)The identification of relevant issues, the formulation of relevant questions and the determination of what is not relevant evidence are all routine steps in the discharge of that ordinary jurisdiction of the inferior court… Mistake in the identification of such issues or the formulation of such questions on the part of an inferior court entrusted with authority to identify, formulate and determine such issues and questions will not ordinarily constitute jurisdictional error; and
(j)A failure by an inferior court to take into account some matter which it was, as a matter of law, required to take into account in determining a question within jurisdiction or reliance by such a court upon some irrelevant matter upon which it was, as a matter of law, not entitled to rely on in determining such a question, will not ordinarily involve jurisdictional error.[7]
[7]Ibid, [176]-[179].
The jurisdiction of the Supreme Court on a judicial review application is limited to supervising inferior courts and tribunals. Judicial review is not an appeal and does not entitle this Court to canvass matters that it would on an appeal. Judicial review is not concerned with the merits of the decision under review, that is, it is not concerned with whether the decision was fair or correct.
The grant of an order in the nature of certiorari is discretionary.
In Wingfoot Australia Partners Pty Ltd v Kocak,[8] the High Court had the following to say about the availability of an order in the nature of certiorari, i.e. an order quashing the order of an inferior court on the basis of jurisdictional error:
The jurisdiction of the Supreme Court to make an order in the nature of certiorari is an aspect of its jurisdiction as “the superior Court of Victoria”. The exercise of that jurisdiction is regulated by the rules of the Supreme Court which require that it be exercised only by way of judgment or order.
The function of an order in the nature of certiorari is to remove the legal consequences or purported legal consequences of an exercise or purported exercise of power. Thus, an order in the nature of certiorari is available only in respect of an exercise or purported exercise of power which has, at the date of order, an “apparent legal effect”. An order in the nature of certiorari is not available in respect of an exercise or purported exercise of power the legal effect or purported legal effect of which is moot or spent. An order in the nature of certiorari in those circumstances would be not simply inutile; it would be unavailable.[9]
[8][2013] HCA 43.
[9]Ibid, [24]-[25] (omitting citations).
Submissions on Mr Baid’s prospects of success
Mr Agrawal says that the Court should grant the application for summary judgment because Mr Baid’s application for judicial review has no prospect of success.
Mr Agrawal’s primary submission is that Mr Baid’s application for judicial review is moot because on 24 February 2021, the Magistrates’ Court made a further interim PSIO between the parties. That PSIO has superseded the PSIO made by the County Court Judge on 4 November 2020, rendering any grant of judicial review of the Judge’s order pointless.[10]
[10]Ibid.
Mr Agrawal made further submissions directed to the three grounds of jurisdictional error ultimately put by Mr Baid at the hearing of Mr Agrawal’s summary judgment application. These were, that in relation to:
(a) the alleged failure to consider Mr Baid’s explanation that he was acting in self‑defence, Mr Agrawal submitted that the transcript of the ruling clearly indicates that the Judge took into account the evidence of both men and preferred Mr Agrawal’s evidence. Mr Agrawal says this is a simple factual dispute and does not give rise to jurisdictional error;
(b) Dr Hii’s report, Mr Agrawal submitted that the PSIO Act allows the County Court to inform itself in any way it sees fit and so the Judge was entitled to accept Dr Hii’s report; and
(c) the articles published by Bimarsha, Mr Agrawal did not agree with Mr Baid’s contention that the Judge had found this had constituted harassment. Mr Agrawal said that Mr Baid had mischaracterised his Honour’s findings about that evidence. Mr Agrawal submitted that the Judge relied on the evidence of the Bimarsha article to find that there was ongoing tension and hostility between the two families that was likely to continue into the future. According to Mr Agrawal, the Judge did not go so far as to find that the publication of the article constituted harassment under the PSIO Act.
In relation to Mr Baid’s assertion that the Judge erred in finding that Mr Baid should be prevented from feeding information to his father that could assist in further derogatory articles, Mr Agrawal disputes the Judge made that finding. Mr Agrawal submitted that in any event, based on all the other evidence, the Judge was justified in making an order prohibiting Mr Baid feeding information to his father.
Mr Agrawal also submitted:
(a) an error is jurisdictional only if it is material in the sense that it has deprived the applicant of the realistic possibility of a successful outcome.[11] The applicant in judicial review proceedings bears the onus of proving materiality by admissible evidence on the balance of probabilities;[12] and
(b) the concept of the statutory framework of the PSIO Act is central to the Court’s consideration of whether jurisdictional error exists. Mr Baid has not identified in his originating motion or his outline of submissions how the Judge identified the wrong issue, asked the wrong question, ignored relevant material or relied on irrelevant material in a way that affected the exercise of his power under the PSIO Act.
[11]Hossain v Minister for Immigration and Border Protection [2018] HCA 34, 264 CLR 123, [30].
[12]MZAPC v Minister for Immigration and Border Protection [2021] HCA 17; 95 ALJR 441, 449 [3], 458 [60].
Mr Baid submitted that the Judge erred:
(a) in finding that Dr Hii had made an error in his report about the location of the injury without hearing any evidence from Dr Hii;
(b) in not requiring Mr Agrawal to provide a translation of the Bimarsha article undertaken by a qualified level three translator;
(c) in not finding that the article published by Bimarsha was sourced from another newspaper, as he had suggested during the Rehearing;
(d) in accepting Mr Agrawal’s assertions that the contents of the article were untrue when in fact they were true and the information the subject of the article was available in the public domain; and
(e) in assuming, without any evidence, that Mr Baid was sharing information about Mr Agrawal with his father.
Analysis
In my view, Mr Agrawal’s primary submission that the remedy Mr Baid seeks is unavailable because Judge Lauritsen’s order is spent (because it was superseded on 24 February 2021) cannot be sustained. The PSIO made in the Magistrates’ Court on 24 February 2021, by its terms, varied Judge Lauritsen’s order made on 4 November 2020. It does not revoke his Honour’s order made on 4 November 2020.
Turning now to Mr Baid’s application. In his reasons for ruling, his Honour set out the court’s power to make a PSIO by reference to the statutory test in s 61 of the PSIO Act. His Honour referred to the forms of prohibited behaviour described in s 5 of the PSIO Act and the meanings of the various forms of prohibited behaviour as defined in ss 6, 7, 8, 9 and 10 of the PSIO Act.
As outlined above, his Honour considered the parties’ competing versions of the events of 13 August 2019, the day Mr Baid asserted that Mr Agrawal threatened to kill him. Mr Baid’s assertions of having acted in self-defence on 4 November 2019 were based on Mr Agrawal’s earlier threat to kill him. His Honour explicitly found that Mr Agrawal did not make any such threat. His Honour made this finding solely on the basis of the evidence of the two men, preferring Mr Agrawal’s evidence. There was nothing erroneous in the Judge weighing the two competing versions and deciding that he believed one over the other. This sort of assessment is an ordinary part of judicial adjudication, and, according to the principles laid down in Craig,[13] does not amount to jurisdictional error.
[13]Above n6, [176]-[179].
Once his Honour was satisfied that Mr Agrawal did not make the threat to kill Mr Baid, the basis of Mr Baid’s self-defence argument fell away. In any event, his Honour again considered each party’s evidence about what occurred on 4 November 2019 together with the evidence contained in Dr Hii’s letter of 9 November 2019.
In his oral reasons delivered on 4 November 2020, his Honour referred to Dr Hii’s letter as follows:
One or two days later [after the incident on 4 November 2019] Mr Agrawal went to a medical practitioner. Pausing there the report of the medical practitioner is not in evidence, it was not tendered and has not been admitted into evidence. Resuming the reasons. Since he was having difficulty closing his mouth Mr Agrawal sought dental attention. A letter from Nicholas Hii, a dentist, was admitted into evidence.
Dr Hii saw Mr Agrawal on 9 November. He could only open his mouth the width of two fingers. When closing his mouth Mr Agrawal complained of pain in the region, according to Dr Hii, of the left condyle. Dr Hii speaks of the left condyle, but this is a mistake, the blow was to the right side of the lower jaw. The condyle is the rounded eminence at the end of a bone. I understand Dr Hii is describing the rounded eminence of the lower jaw, before the jawline proceeds vertically.
A CBCT was taken to investigate any bony fractures or condylar displacement. I assume a CNCT is some form of CT scan. Dr Hii was awaiting the results when he wrote the letter. I assume there was neither a fracture or fractures nor displacement. Since Mr Agrawal had had a recent implant in his right lower jaw an x-ray was taken. It did not show a fracture to the implant.
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The injury to Mr Agrawal’s right lower jaw was significant for five days later he could barely open his mouth for the pain. The tests did not reveal either fractures or displacement, but the soft tissue damage was sufficient to cause both pain and impairment. To cause that damage the blow must have been significant and sits very uneasily with Mr Baid’s explanation of his interactions with Mr Agrawal. I am satisfied that Mr Baid struck Mr Agrawal in the way Mr Agrawal described.
There is no evidence of any intervening event between 4 November and when Mr Agrawal saw Dr Hii on the 9th. The fact that Mr Baid is right-handed and that the blow was struck to the right side of Mr Agrawal’s face is interesting, but in no way conclusive.
His Honour’s path of reasoning is clear. He was not satisfied that Mr Agrawal had made the earlier threat to Mr Baid, undermining Mr Baid’s claims that he acted in self defence. Additionally, there was evidence that Mr Agrawal had visited a dentist five days after the incident complaining of significant pain and impairment. As there was no evidence of another event causing that pain and impairment, it was reasonable for his Honour to infer that its cause was Mr Baid’s strike to Mr Agrawal’s jaw. His Honour was entitled to infer from the description of the extent of the pain and impairment that Mr Agrawal had been struck with some force and not in the way that Mr Baid described.
That his Honour thought, either correctly or incorrectly, that Dr Hii had made a mistake in referring to Mr Agrawal’s left condyle instead of his right condyle does not give rise to a jurisdictional error. In my view, having found Mr Baid’s claims of self‑defence baseless, his Honour could have found that Mr Baid assaulted Mr Agrawal on the evening of 4 November 2019 even without the evidence of Dr Hii. In other words, even if his Honour made an error in taking into account Dr Hii’s report given the confusion about the location of the injury, that error was not material.
In relation to the Bimarsha article, while Mr Agrawal’s case was put on the basis that the articles formed a course of conduct amounting to harassment as defined in s 7 of the PSIO Act, I agree that his Honour’s reasons do not make this finding.
In my view, Mr Agrawal is correct that rather than relying on the publication of the article as constituting harassment, his Honour relied on the publication of the article to found his view that Mr Baid was likely to commit prohibited behaviour against Mr Agrawal again. His Honour was of this view because of the continuing intense hostility between the men and their families, as evidenced by the publication of the article more than 12 months after the first deed of settlement was signed.
In relation to the sufficiency of the translation of the Bimarsha article, the transcript of the hearing shows that Mr Baid’s legal representative raised the issue of the sufficiency of the translation and was told by his Honour that he could pursue that issue in his cross-examination of Mr Agrawal. Thereafter, the article was admitted into evidence with no objection from Mr Baid’s legal representative. Mr Baid’s legal representative did not cross-examine Mr Agrawal about the adequacy of the translation. Nor did Mr Baid’s legal representative seek an opportunity to have the article translated by another translator. Allowing the article to be admitted into evidence in these circumstances did not amount to jurisdictional error.
Both Mr Agrawal and Mr Baid gave evidence about the source of the information in the Bimarsha articles. Mr Baid’s evidence was that he did not share information about Mr Agrawal with his father and that the information in the article had all been sourced from other publicly available news sources. Mr Agrawal’s evidence was that there were details about AECC, including the dispute between Mr Agrawal and Mr Baid and the settlement of that dispute, that could only have been known by Mr Baid. Mr Agrawal was repeatedly asked in cross-examination whether he had any evidence of when and how Mr Baid imparted this information to his father and consistently replied that he did not know the means by which Mr Baid shared the information with his father.
His Honour was entitled, on the evidence before him, to find that Mr Baid was the source of some of the company information that appeared in the articles. This was because there was evidence, given by Mr Agrawal, that the article contained information only Mr Baid and Mr Agrawal would have been known. Again, this finding is based on an unremarkable assessment of the evidence provided at the Rehearing. There is nothing about his Honour’s finding that constitutes jurisdictional error.
Finally, Mr Baid’s argument that the contents of the translated article could not amount to harassment because they were true is misconceived. First, as explained above, notwithstanding that Mr Agrawal argued that Mr Baid harassed him through the publication of the Bimarsha articles, his Honour did not find that Mr Baid had harassed Mr Agrawal. Second, in the context of the argument Mr Agrawal was trying to make at the Rehearing that he had been harassed, his Honour, in preventing Mr Baid’s legal representative from cross-examining Mr Agrawal about his citizenship, stated that whether these allegations were true or not was irrelevant. His Honour explained that it was irrelevant because the statutory definition of harassment in the PSIO Act includes a course of conduct that is demeaning, derogatory or intimidating. This meant that the publication of the articles, even where their content was true, could still fall within the statutory definition of harassment in the PSIO Act. His Honour was undoubtedly correct in making that observation. I am satisfied that this issue cannot found a claim jurisdictional error.
I have addressed each of Mr Baid’s grounds raised at the hearing of Mr Agrawal’s summary judgment application. For the sake of completeness, I note that these grounds encompass grounds one, four, five and six in Mr Baid’s origination motion. Grounds two and three in the originating motion concern whether the Magistrates’ Court should have made the PSIO in Mr Baid’s absence on 12 March 2020. Given that the hearing before Judge Lauritsen was a rehearing of Mr Agrawal’s application for a PSIO heard afresh, this ground cannot succeed. It cannot succeed because whatever happened in the Magistrates’ Court on 12 March 2020 cannot constitute a jurisdictional error by the County Court on a complete rehearing. Ground three, by which Mr Baid complains that Judge Lauritsen did not consider that Mr Agrawal had purposely provided an incorrect address for Mr Baid to the Magistrates’ Court, also has no real prospect of success. This is because s 47 of the PSIO Act empowers the court in a proceeding for a PSIO to inform itself in any way it thinks fit. Additionally, Craig[14] makes clear that a failure to take into account some matter which an inferior court was, as a matter of law, required to take into account in determining a question within jurisdiction – and here there was no such requirement - will not ordinarily involve a jurisdictional error.
[14]Above n6.
I am satisfied that Mr Baid’s application for judicial review has no prospects of success and should be dismissed. Turning to s 64 of the CPA, I am not satisfied that either the interests of justice or the nature of the dispute require a full hearing of Mr Baid’s originating motion. Accordingly I will order that Mr Baid’s originating motion is dismissed.
I will hear from the parties on the question of costs.
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