Bogdanovic v Magistrates' Court of Victoria
[2017] VSC 696
•27 November 2017
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S CI 2017 01684
| RADOICO BOGDANOVIC | Plaintiff |
| v | |
| MAGISTRATES' COURT OF VICTORIA | First Defendant |
| STATE OF VICTORIA | Second Defendant |
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JUDGE: | Ginnane J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | On the papers |
DATE OF JUDGMENT: | 27 November 2017 |
CASE MAY BE CITED AS: | Bogdanovic v Magistrates' Court of Victoria |
MEDIUM NEUTRAL CITATION: | [2017] VSC 696 |
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JUDICIAL REVIEW — Orders in the nature of certiorari requested pursuant to joint memorandum — Infringement offender’s fines partially discharged — Infringement offender ordered to pay remaining fines in instalments and in default of payment be imprisoned — Whether Magistrate considered circumstances prescribed by s 160 in exercise of discretion — Orders granted — Infringements Act 2006, s 160, 161, 161A.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Paul Vale Criminal Law | |
| For the Second Defendant | Mr C J Tran | Victorian Government Solicitor |
HIS HONOUR:
Introduction
By way of Joint Memorandum,[1] the plaintiff and second defendant[2] seek orders quashing the decision of the Magistrates’ Court of Victoria made on 7 March 2017 at Werribee and remitting the matter for rehearing and determination according to law with no order as to costs. Despite the agreement of the parties, the Court must determine for itself whether it is just and appropriate to grant judicial review remedies.[3]
[1]Filed pursuant to the Judicial Review and Appeals List Practice Note SC CL 9 [8.1]. The plaintiff filed two affidavits made by his solicitors.
[2]The name of the second defendant has been amended at the request of the parties.
[3]Kovalev v Minister for Immigration and Multicultural Affairs (1999) 100 FCR 323, 327 [11].
The matter before the Magistrate was the plaintiff’s application to discharge his outstanding fines totalling $58,642 that had progressed to the infringement warrant stage. They included fines for non-payment of toll charges, traffic camera charges and fines imposed by Councils relating to the use of his motor vehicle. The Magistrate decided to discharge part of the outstanding fines, totalling $12,926, and ordered that the plaintiff be imprisoned for 295 days in respect of the remaining fines being $45,716.61 subject to a stay and compliance with an instalment plan.
The parties allege the Magistrate committed jurisdictional errors by failing to consider the applicability of s 160(3) of the Infringements Act 2006 which required the Magistrate to have specific regard to the ‘infringement offender’s situation’; and furthermore, by failing to make inquiries of the plaintiff to ascertain a sufficient picture of the ‘offender’s situation’ before exercising the powers contained in s 160. These alleged errors are said to be jurisdictional errors, and thus amenable to orders in the nature of certiorari.
Legislation
The Magistrate’s decision was made in purported accordance with s 160 of the Infringements Act 2006, which at the time of the hearing in the Magistrates’ Court stated:
160 Powers of the Court
(1) The Court may order that the infringement offender be imprisoned for a period of one day in respect of each penalty unit, or part of a penalty unit, to which the amount of the outstanding fines under the infringement warrant or warrants is an equivalent amount.
(2) If the Court is satisfied—
(a) that an infringement offender has a mental or intellectual impairment, disorder, disease or illness; or
(b) without limiting paragraph (a), that special circumstances apply to an infringement offender—
the Court may—
(c) discharge the outstanding fines in full; or
(d) discharge up to two thirds of the outstanding fines; or
(da) discharge up to two thirds of the outstanding fines and order that the infringement offender be imprisoned for a period of one day in respect of each penalty unit, or part of a penalty unit, to which the remaining undischarged amount of the outstanding fines under the infringement warrant or warrants is an equivalent amount; or
(e) adjourn the further hearing of the matter for a period of up to 6 months.
(3) If the Court is satisfied that, having regard to the infringement offender's situation, imprisonment would be excessive, disproportionate and unduly harsh the Court may—
(a) order the infringement offender to be imprisoned for a period that is up to two thirds less than one day in respect of each penalty unit, or part of a penalty unit, of the penalty units to which the amount of the outstanding fines is an equivalent amount; or
(b) discharge the outstanding fines in full; or
(c) discharge up to two thirds of the outstanding fines; or
(ca) discharge up to two thirds of the outstanding fines and order that the infringement offender be imprisoned for a period that is up to two thirds less than one day in respect of each penalty unit, or part of a penalty unit, of the penalty units to which the undischarged amount of the outstanding fines is an equivalent amount; or
(d) adjourn the further hearing of the matter for a period of up to 6 months; or
(e) make a fine default unpaid community work order under Division 5 of Part 3B of the Sentencing Act 1991.
(4) If the Court has made an order under subsection (1), (2)(da), (3)(a) or (3)(ca) for imprisonment in default of payment of outstanding fines—
(a) a warrant to imprison may be issued under section 68 of the Magistrates' Court Act 1989; and
(b) the Court may make an instalment order under the Sentencing Act 1991 in respect of the payment of the outstanding fines.
Sections 161 and 161A, at the relevant time, provided a mechanism that permitted persons in custody to request that their time served be considered payment in default of outstanding fines, a process colloquially referred to as “calling in” fines:
161 Reduction of imprisonment by payment of part of outstanding fines
(1) Despite any provision (except section 26) of the Imprisonment of Fraudulent Debtors Act 1958 to the contrary or anything in any infringement warrant, if an infringement offender is imprisoned under a warrant to imprison issued under section 68 of the Magistrates' Court Act 1989—
(a) the whole or any part of the outstanding fines may be paid by or on behalf of the infringement offender to the officer in charge of the prison or police gaol in which the infringement offender is detained; and
(b) the officer in charge must receive the payment and forward it without delay to the registrar at any venue of the Court.
(2) If—
(a) the whole amount of the outstanding fines; or
(b) the amount remaining to be paid—
is paid to the officer in charge of the prison or police gaol by or on behalf of the infringement offender who is imprisoned, the offender must be discharged if he or she is in custody for no other matter.
(3) If part of the outstanding fines is paid to the officer in charge of the prison or police gaol by or on behalf of the infringement offender who is imprisoned—
(a) the officer in charge must—
(i) amend the execution copy of the warrant to imprison; and
(ii) receive the payment and forward it without delay to an infringements registrar; and
(b) at the end of the reduced term, the infringement offender who is imprisoned must be discharged if he or she is in custody for no other matter.
161A Term of imprisonment in default of payment of outstanding fines
(1) A person who has one or more infringement warrants issued against him or her and who is in custody may request, in writing, the sheriff to apply to the court for an order for that person to serve a period of imprisonment in default of payment of the outstanding fines under any one or more infringement warrants.
(1A) On application under subsection (1), the Court may order that the person be imprisoned for a period of one day in respect of each penalty unit, or part of a penalty unit, of the amount of the penalty units to which the outstanding fines under the infringement warrant or warrants is an equivalent amount.
Background
The factual background is conveniently summarised in the joint memorandum:
On 7 March 2017, the plaintiff’s case came on for hearing before Magistrate Maxted in the Magistrates’ Court at Werribee. The plaintiff was represented by junior counsel and instructing solicitor (neither of whom acted in this judicial review application, and against whom neither party in this joint memorandum makes any allegation).
The issue for the Magistrates’ Court’s determination was how to proceed in respect of some $58,642 worth of fines, which were at the infringement warrant stage, under s 160 of the Act.
In submissions to the Magistrate, counsel for the plaintiff expressly relied upon s 160(2). She submitted that some of the fines were incurred while he was in custody. She also made submissions about his age, ill health and literacy, and made submissions that some of his fines had been ‘called in’ under s 161A in the past and that, for no reason explored in the evidence, the $58,642 in issue had not similarly been called in under that provision.
The plaintiff himself gave evidence about his personal circumstances.
The Magistrate's reasons for decision are set out in the Transcript at pages 30-His Honour concluded that there were no special circumstances under s 160(2), and that imprisonment would not be excessive, disproportionate or unduly harsh under s 160(3).
In relation to the fact that these fines had not been called in, the Magistrate said:
I am satisfied that he could have applied to have some of these infringements called in. But I am not necessarily satisfied that in all the circumstances he had not done so or had done it in a way which a court may have not granted the order.
The Magistrate did, however, discharge the fines referable to the period when he was in custody. The Magistrate then considered the terms on which to stay imprisonment. It was in this context alone that the Magistrate considered Mr Bogdanovic's capacity to pay.
The relevant personal circumstances of Mr Bogdanovic as described in his solicitor’s affidavit were that he was: 65 years of age; had received a disability pension for 25 years; was in poor health, having suffered a number of heart attacks and strokes; had migrated from Romania and was not literate in English; and that he and his wife lived in private rental accommodation and had a joint income of $900 per week.[4]
[4]Affidavit of Ms Sarah Pratt filed 8 May 2017.
These features of the plaintiff’s case were raised at the hearing,[5] and reiterated by Mr Bogdanovic, who, led by counsel, gave evidence as to his personal circumstances.[6] At one point his counsel, quoting the words of s 160(2)(a), stated:
I’m not seeking to rely on mental or intellectual impairment disorder, disease or illness.[7]
[5]Transcript of Proceedings, Victoria Police v Radoico Bogdanovic (Magistrates’ Court, G13253840, 7 March 2017), 4.28 – 6.6 (“T”).
[6]T 16 – 18.
[7]T 2.
The Magistrate invited counsel to lead further evidence on Mr Bogdanovic’s ‘special circumstances’ which is the domain of s 160(2)(b), which confirmed the veracity of his claims regarding his age, health, literacy and financial situation.[8]
[8]T 21.25 – 24.8.
The Joint Memorandum states that the plaintiff’s case was put on the basis of special circumstances under s 160(2)(b), and in particular on the basis that many of the fines had been incurred whilst he was in prison. Having delivered reasons, the Magistrate considered the question of a stay of the repayment of the $45,716.61 that remained outstanding and an instalment payment plan and the default imprisonment term. He considered the plaintiff’s financial circumstances when deciding the appropriate terms of an instalment order, which, in default of payment would result in Mr Bogdanovic’s imprisonment. The final terms of his Honour’s orders were:
Partially discharged.
Amount outstanding $45716.61
In default of payment of unpaid amounts in this case being the total of $45716.61, the offendor is to be imprisoned for 295 days.
Instalments of $800.00 each month – First payment 14/3/2017 Initial payment $2500 by 7/3/2017
The Magistrate’s reasons
The Magistrate’s reasons were as follows:
On the application for me to deal with this matter under s 161 of the Infringements Act, the applicant in this infringements case owes $58,642.10 to the State of Victoria in default 378 days in prison. It would appear that the applicant has made application in a court to have the sum of the fines that otherwise were outstanding served by way of time served under an order of imprisonment which went for a period of two and a half years in gaol, having been released on 10 May 2016 and serving a sentence from 12 March 2014.
His counsel, Ms Upton, puts all the matters that she can put before me and has done all that is reasonable for any member of counsel to do to bring all matters to my attention relating to why I should exercise discretion in the matter having regard to the offender’s situation, namely that either there are special circumstances having applied or under s.160(3) of the Infringements Act, having regard to the offenders situation, imprisonment would be excessive, disproportionate or unduly harsh.
It is clear to me that this man committed criminal offences during the relevant period of the offences to which he is meant to be dealt with for failing to pay his fines and infringements. These were serious criminal offences which were dealt with by a court relating to trafficking of drugs and other similar associated conduct, which in all the circumstances means in my view that during some of the period of these offences it cannot be said that he was suffering any disease, mental intellectual impairment or other disability. This is not how the matter has been put to me. The matter is that there are special circumstances that apply.
On the grounds for special circumstances applying I am satisfied that he could have applied to have some of these infringements called in. But I am not necessarily satisfied that in all the circumstances he had not done so or had done it in a way which a court may have not granted the order. Having regard to the offender's situation though it would be in my view excessive or disproportion for him to serve 378 days in gaol where it would appear that from his own counsel's assessment and my view looking at the infringement warrant, case details and the sheriffs warrants that there is some matters which would appear to have been offences occurred when he was in prison.
I agree that during that period of time due to his own foolish behaviour yet again which has brought him into custody on several occasions by a court it is clear that this man has little if any regard to what responsibilities are that he owes to the State of Victoria by way of making sure that his car is only driven by persons who are competent, licensed and able to do so. Therefore I am not going to regard that as such foolishness it would warrant his imprisonment.
I will reduce the payments by $12,926 which is the amount that his counsel, Ms Upton, has provided in detail to me which satisfies me that the amount should be reduced. Meaning $45,716 is owed to the State of Victoria. Which means he owes 295 days in prison.
Grounds of review
In their Joint Memorandum, the parties relied on two grounds for their judicial review application. The first was that the Magistrate failed to consider s 160(3).[9] The second was that the Magistrate failed to make necessary inquiries, incorporating grounds one and three in the Originating Motion.
[9]The parties said that ‘this error emerges from grounds 2, 4 and 7 of the originating motion, but the parties agree that it is preferable to frame the error in the manner explained above’ which appears to be under the ‘failure to consider section 160(3)’ ground which is the first error that they allege.
Ground one: Failure to consider s 160(3)
The parties contend that the Magistrate’s failure to have regard to the plaintiff’s personal situation or circumstances when considering the terms of s 160(3), including his age, literacy, and health, constituted jurisdictional error.
The parties submit that as the case had been presented on the basis of special circumstances under s 160(2)(b), it was understandable that the Magistrate focused on those particular considerations. However, they submit that the Magistrate still had to consider s 160 as a whole and had to consider the plaintiff’s situation. The parties relied on the Court of Appeal decision in Victoria Police Toll Enforcement v Taha[10] (‘Taha’) in support of that proposition, and I will return to that decision.
[10]Victoria Police Toll Enforcement v Taha (2013) 49 VR 1 (‘Taha’).
The parties submit that regardless of whether a submission relying on s 160(3) was squarely put to the Magistrate, the facts before his Honour that engaged it were readily apparent, and therefore the Magistrate was obliged to consider its applicability. The parties cite Federal Court authority about when a Tribunal’s failure to consider an argument raised by material before it will constitute a denial of procedural fairness.[11]
[11]See in particular NABE v Minister for Immigration and Multicultural and Indigenous Affairs [No 2] (2004) 144 FCR 1, 18-19, [57]-[59].
Ground two: Failure to inquire
The parties also submit that the decision in Taha,[12] required the Magistrate to make enquiries regarding the fact that many of the fines that seemed eligible to be called in under s 161A of the Act had not been.[13] This was evident from the following passage of the Magistrate’s reasons:
On the grounds for special circumstances applying I am satisfied that he could have applied to have some of these infringements called in. But I am not necessarily satisfied that in all the circumstances he had not done so or had done it in a way which a court may have not granted the order.
[12]Joint Memo [24].
[13]This error was ‘reflected in grounds one and three which are pressed by the plaintiff in his originating motion’ Joint Memorandum [33].
Victoria Police Toll Enforcement v Taha
As mentioned, the parties rely on the Court of Appeal decision in Taha.[14] The Court consisted of Nettle, Tate and Osborn JJA. The case concerned the application of s 160 in two cases, Mr Taha’s and Ms Brookes’. It is appropriate to record that the Magistrate in this case was not referred to Taha’s Case.
[14](2013) 49 VR 1.
Mr Taha was a pensioner with an intellectual disability who was ordered to pay fines totalling $11,250.20 to be paid in monthly instalments and that in default, he be imprisoned.[15] In the second case, Ms Brookes, who had been diagnosed with post-traumatic stress disorder, was ordered to pay $15,164.50 in fines by monthly instalments and that in default, she be imprisoned.[16]
[15]Taha (2013) 49 VR 1, 7 [10].
[16]Ibid, 16 [44].
In Taha, judicial review applications were commenced in this Court and they succeeded. Appeals to the Court of Appeal were dismissed. The judgments establish the following principles governing the application of s 160. First, s 160 should be read as a whole so that, consistently with rights protected by the Charter[17] and the principle of legality, the Court must consider whether alternatives provided under ss 160(2) and 160(3) were available or applicable before ordering a term of imprisonment.[18] Secondly, and depending on the circumstances of the particular case, the Magistrate may be obliged to inform him or herself of all the circumstances relevant in assessing the ‘infringement offender’s situation’.[19] Thirdly, while the fact that the infringement offender is represented is relevant to the scope of the Court’s obligation to inquire, it will not necessarily relieve the Court of this obligation.[20] Fourthly, the infringement offender did not bear an onus of establishing the requisite satisfaction mandated by the section.[21]
[17]Charter of Human Rights and Responsibilities Act 2006; ss 21 (right to liberty and security of person), 24 (fair hearing).
[18]Taha (2013) 49 VR 1, [23]-[27] (Nettle JA), [150]-[151] (Tate JA), [257] (Osborn JA).
[19]Ibid, [28]-[29] (Nettle JA), [167]-[168] (Tate JA), [258] (Osborn JA).
[20]Ibid, [28] (Nettle JA), [175] (Tate JA).
[21]Ibid, [20] (Nettle JA), [163] (Tate JA).
Analysis
The grounds on which the Court will interfere with the exercise of a Magistrate’s discretion are limited.[22] I take into account that the Magistrate was sitting in a busy court and gave ex tempore reasons. On the other hand, at issue was whether an application, which might have avoided the plaintiff serving a period of imprisonment, should succeed. Tate JA in Taha emphasised the importance of an applicant’s Charter rights.[23]
[22]House v The King (1936) 55 CLR 499, 505.
[23]Taha (2013) 49 VR 1, [186]-[217] (Tate JA).
The Magistrate’s discretion in this case depended in the first instance on satisfaction of the circumstances described in sub-sections (2)(a) and (b):
(2) If the Court is satisfied—
(a) that an infringement offender has a mental or intellectual impairment, disorder, disease or illness; or
(b) without limiting paragraph (a), that special circumstances apply to an infringement offender—
Secondly, the Magistrate’s discretion in s 160(3) could be exercised:
If the Court is satisfied that, having regard to the infringement offender's situation, imprisonment would be excessive, disproportionate and unduly harsh the Court may—
As was discussed in Taha, the scope of the obligation to make inquires is dependent on the situation and circumstances of each case. In his reasons, the Magistrate thanked counsel for bringing to the Court’s attention ‘all that is reasonable’ as to why he should exercise his discretion under s 160. His Honour invited and received submissions as to Mr Bogdanovic’s personal circumstances. I have summarised those personal circumstances previously. However, a fair reading of his Honour’s reasons does not reveal what role the consideration of Mr Bogdanovic’s personal situation played in the exercise of his discretion. The only personal circumstance specifically referred to by the Magistrate in reaching his decision was the plaintiff’s time in prison for serious offences, when some of the fines were incurred. Those circumstances, which were expressly referred to by his Honour, persuaded him to reduce the total sum of fines by $12,926. The reasons do not otherwise deal with Mr Bogdanovic’s situation and other personal circumstances.
However, the Magistrate did not have information as to why the plaintiff had not applied for discharge of all the fines while he was in prison. The Magistrate did not enquire as to why that had not occurred. At one point, the plaintiff’s counsel commenced to inform the Magistrate of the plaintiff’s wife’s explanation of why he had not applied to discharge all the fines, but her statement was interrupted by an observation or question by the Magistrate and she did not complete it.[24]
[24]T 25.16-7.
I therefore consider that, with respect, the Magistrate erred in exercising the jurisdiction conferred on him. He did not consider the application of the discretion conferred by s 160(3) in accordance with law and, in particular, the Court of Appeal decision in Taha’s case. He did not consider whether Mr Bogdanovic’s situation rendered the period of imprisonment to which he was sentenced excessive, disproportionate and unduly harsh. His Honour’s reasons do not reveal what aspects of the plaintiff’s situation he had considered. Secondly, his Honour did not enquire why the plaintiff had not applied to call in the remainder of his outstanding fines.
I therefore consider that both of the grounds on which the parties rely in their joint memorandum are established.
I will grant the orders requested by the parties quashing the orders made on 7 March 2017 and remit the plaintiff’s application made that day to the Magistrates’ Court of Victoria at Werribee, differently constituted, for redetermination according to law. I will make no order as to costs.
The Magistrate rehearing the plaintiff’s application should be taken to, and should consider, the Court of Appeal judgment in Taha.[25]
[25]Taha (2013) 49 VR 1.
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