Brown v Bolger (Ruling)
[2024] VCC 4
•13 February 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
GENERAL LIST
Case No. CI-23-02496
| ROHAN MICHAEL BROWN | Plaintiff |
| v | |
| ANGELA BOLGER | Defendant |
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JUDGE: | HIS HONOUR JUDGE CLARK |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 17 November 2023 |
DATE OF RULING: | 13 February 2024 |
CASE MAY BE CITED AS: | Brown v Bolger (Ruling) |
MEDIUM NEUTRAL CITATION: | [2024] VCC 4 |
RULING
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Subject:CIVIL PROCEDURE
Catchwords: Judicial immunity – jurisdiction – summary judgment
Legislation Cited: Magistrates’ Court Act 1989 (Vic); Criminal Procedure Act 2009; Bail Act 1977 (Vic); Bail Amendment Act 2010 (Vic); Civil Procedure Act 2010 (Vic)
Cases Cited:Stradford (A Pseudonym) v Judge Vasta [2023] FCA 1020; Fingleton v R (2005) 227 CLR 166; Nakhla v McCarthy [1978] 1 NZLR 291; Sirros v Moore [1975] QB 118; Moll v Butler (1985) 4 NSWLR 231; Rajski v Powell (1987) 11 NSWLR 522; Yeldham v Rajski (1989) 18 NSWLR 48; Re East & Ors; Ex Parte Nguyen (1998) 196 CLR 354; Wentworth v Wentworth (2001) 52 NSWLR 602; Fleet v Royal Society for the Prevention of Cruelty to Animals NSW (RSPCA) [2005] NSWSC 926; Anderson vGorrie [1895] 1 QB 668; Lysaght Building Solutions Pty Ltd (t/as Highline Commercial Construction) v Blanalko Pty Ltd (2013) 42 VR 27; Demediuk, Re [2016] VSC 587; R v Forbes; Ex parte Bevan (1972) 127 CLR 1; Re Brown [2019] VSC 751
Ruling: Pursuant to s62 and s63 of the Civil Procedure Act 2010 (Vic), there be summary judgment in favour of the defendant.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | The plaintiff appeared in person | |
| For the Defendant | Mr P Holdenson KC with Mr R Kornhauser | Minter Ellison |
| Amicus Curiae | Ms S Molyneux |
HIS HONOUR:
Introduction
1The plaintiff, Mr Rohan Brown, is a man who is very unhappy with what occurred at the Melbourne Magistrates’ Court (“MMC”) on 27 August 2021.
2On that day, the presiding magistrate and defendant in these proceedings, Magistrate Angela Bolger, made orders:
(a) refusing Mr Brown a grant of bail in proceeding M11690601 (“the “M” matter”);[1]
(b) revoking Mr Brown’s grant of bail in proceeding K12359859 (“the “K” matter”).[2]
[1]Exhibit “A” ꟷ affidavit of Ms Tanya Ann Turner, principal registrar, Magistrates’ Court of Victoria, at pages 294-339 of the exhibit bundle
[2](Ibid) at page 340 of the exhibit bundle
3Consequential to these orders, Mr Brown remained in custody.
4Subsequently, Mr Brown was granted bail in the “K” matter at the MMC by Magistrate Bourke on 13 January 2022. However, he remained in custody on the “M” matter until 18 January 2022, when he was granted bail by Lasry J in the Supreme Court.[3]
[3]Exhibit 9 – Bail order of the Honourable Justice Lasry, dated 19 January 2022; Exhibit “B” – further supplementary affidavit of Marian Jane Morton, senior associate, MinterEllison, at Annexure MJM-3, page 99-101 of exhibit bundle
5Mr Brown:
(a) alleges he was falsely imprisoned between 27 August 2021 and 18 January 2022;
(b) has instituted proceedings seeking damages from Magistrate Bolger;
(c) says he is entitled to compensation for loss and harm which he alleges he has suffered.
(the proceedings).
6Magistrate Bolger denies the allegations made by Mr Brown. Magistrate Bolger says she has judicial immunity from civil liability.
Magistrate Bolger’s application to the Court
7Magistrate Bolger, in her amended summons, dated 6 November 2023, has made application for the following orders:
“1.Pursuant to sections 62 and 63 of the Civil Procedure Act 2010 (Vic), there be summary judgment in favour of the Defendant on the ground that the Plaintiff’s claim has no real prospect of success.
2.Alternatively, pursuant to rule 23.01(1) of the County Court Civil Procedure Rules 2018 (Vic), the Plaintiff’s claim be dismissed and/or permanently stayed as an abuse of process of the Court.
3.Alternatively, pursuant to rule 23.02 of the County Court Civil Procedure Rules 2018 (Vic), the Plaintiff’s Amended Statement of Claim be struck out without a right to replead.”
(the application).
8Mr Brown denies Magistrate Bolger is entitled to the relief sought. He said the proceedings should proceed to a hearing of the substantial cause of action on the merits.
What are my findings?
9I accept that:
(a) Magistrate Bolger has judicial immunity;
(b) Magistrate Bolger, by reason of her judicial immunity, has protection from civil liability in the proceedings;
(c) Mr Brown has no real prospect of success in the proceedings;
(d) Summary judgment will be entered in favour of Magistrate Bolger.
Given I will be entering summary judgment in favour of Magistrate Bolger, I make no formal finding in respect to paragraphs 2 and 3 of the application.
10What follows is my analysis and reasoning.
What are the issues for the Court’s determination?
11I now identify the issues for determination and the pathway to my conclusions.
12Magistrate Bolger said:
(a) she has the protection of judicial immunity;
(b) by reason of the judicial immunity, she cannot be made liable in the proceedings;
(c) as she cannot be made liable in the proceedings, summary judgment should be entered in her favour;
(d) in the alternative, the proceedings are an abuse of process and should be dismissed and/or permanently stayed and/or struck out.
13Mr Brown said:
(a) There was no judicial immunity. He made specific reference to Stradford (A Pseudonym) v Judge Vasta.[4]
(b) Magistrate Bolger did not have jurisdiction when she made the Orders on 27 August 2022. He said:
(i)There was no application for revocation of bail.
(ii)The “K” matter was not before the MMC.
(iii)He had not been given notice of the application for an order to revoke bail and/or such an application was not pressed in the course of any bail hearing.
[4][2023] FCA 1020 (“Stradford”)
(c) He relied upon the order made in the “K” matter by Magistrate Bourke on 13 January 2022 and the notation made to that order.
(d) Magistrate Bolger had made a deliberate wilfully-corrupt error[5] and had acted in bad faith.
(e) The proceedings are not an abuse of process. The Supreme Court proceedings relied upon by Magistrate Bolger in the abuse-of-process application related to the “M” matter, not the “K” matter.
[5]Amended Statement of Claim at paragraph [9].
14In my analysis I shall:
(a) Identify the legislative framework pursuant to which Magistrate Bolger seeks the protection of judicial immunity.
(b) Consider the relevant authorities which establish the principles and consider the scope and application of judicial immunity.
(c) Review the background to the proceedings and the application, and set out my findings of fact.
(d) Apply the relevant principles to the facts and circumstances as I find them and set out the pathway to my conclusions.
What is the legislative basis and the nature of the judicial immunity relied upon by Magistrate Bolger?
15Section 14 of the Magistrates’ Court Act 1989 (Vic) provides:
“Protection of magistrates
(1)A magistrate has, in the performance of his or her duties as a magistrate, the same protection and immunity as a Judge of the Supreme Court has in the performance of his or her duties as a Judge.
(2)For the purposes of subsection (1), the protection and immunity extends to the conduct of a committal proceeding.”
16It is ss(1) which is relevant to the application.
17The Parliament of Victoria has legislated that Magistrate Bolger has the same judicial immunity as a judge of the Supreme Court of Victoria.
18The Supreme Court of Victoria is a superior court.[6]
[6]R v Forbes; Ex parte Bevan (1972) 127 CLR 1, 7 (Menzies J). Ultimately, the general jurisdiction of the Supreme Court as Victoria’s superior court with unlimited jurisdiction is conferred by s85 of the Constitution Act 1975 (Vic).
19I pause, here, to note the distinction between the judicial immunity of:
(a) a judge of a superior court; and
(b) a judicial officer of an inferior court.
I do so because:
(a) of Mr Brown’s reliance upon Stradford; and
(b) it is the principles which apply to a superior court judge which are relevant to my determination in this application.
20Judge Vasta, the defendant in Stradford, was a judicial officer of an inferior court.
21Judge Vasta did not have the equivalent judicial immunity afforded to Magistrate Bolger. This is an important distinction.
What is the nature and scope of superior court judicial immunity?
(a) Is there a general principle which establishes superior court judicial immunity?
22I shall commence my review of the authorities by reference to the analysis undertaken in the High Court by Gleeson CJ in Fingleton v R.[7]
[7](2005) 227 CLR 166 (“Fingleton”)
23Gleeson CJ, when considering the application of judicial immunity to civil liability proceedings brought by a dissatisfied litigant, said:
“… Most discussion of judicial immunity concerns the possibility of civil liability, including liability for damages, at the suit of an aggrieved litigant. The general principle is stated by Lord Denning MR in Sirros v Moore:
‘Ever since the year 1613, if not before, it has been accepted in our law that no action is maintainable against a judge for anything said or done by him in the exercise of a jurisdiction which belongs to him. The words which he speaks are protected by an absolute privilege. The orders which he gives, and the sentences which he imposes, cannot be made the subject of civil proceedings against him. No matter that the judge was under some gross error or ignorance, or was actuated by envy, hatred and malice, and all uncharitableness, he is not liable to an action.’”[8]
(Footnote omitted.)
(Emphasis added.)
[8](Ibid) at paragraph [35]
24Thus, the general principle enunciated by Lord Denning in Sirros v Moore[9] was adopted and accepted as correct by Gleeson CJ.
[9][1975] QB 118 at [132] (“Sirros”)
25Put simply, a judge acting in the exercise of a jurisdiction which belongs to him/her has the protection of judicial immunity to any civil proceedings brought against him/her.
26When discussing the circumstances where such judicial immunity may be defeated, Gleeson CJ said:
“An allegation of judicial misconduct by a dissatisfied litigant often, perhaps even typically, will be accompanied by an accusation of malice or want of good faith in the exercise of judicial authority. In re McC (A Minor), Lord Bridge of Harwich said:
‘It is, of course, clear that the holder of any judicial office who acts in bad faith, doing what he knows he has no power to do, is liable in damages. If the Lord Chief Justice himself, on the acquittal of a defendant charged before him with a criminal offence, were to say: ‘That is a perverse verdict’, and thereupon proceed to pass a sentence of imprisonment, he could be sued for trespass. But, as Lord Esher MR said in Anderson v Gorrie:
‘the question arises whether there can be an action against a judge of a court of record for doing something within his jurisdiction, but doing it maliciously and contrary to good faith. By the common law of England it is the law that no such action will lie.’”[10]
[10](Ibid), paragraphs [37] at [185]
(Footnotes omitted.)
27Put simply, to fall outside the protection of judicial immunity, a superior court judge must act outside his/her jurisdiction. That is, doing something which he/she knows they have no power to do.
(b) What, then, is meant by “jurisdiction” in the context of judicial immunity?
28The concept of jurisdiction in the context of superior court judicial immunity has been considered by many courts over the years. I will not review all the decisions. I will review, in chronological order, those authorities which I found to be of assistance.
29I go firstly to the much-quoted decision of the New Zealand Court of Appeal case of Nakhla v McCarthy.[11] The judgment of the court was delivered by Woodhouse J. Of the application of the general principle, Woodhouse J said:
“… we are in no doubt that when the principle of judicial immunity is discussed in the cases in relation to acts done within the jurisdiction of the judge that word must be regarded as referable to the broad and general authority conferred upon his court and upon himself to hear and to determine issues between individuals and the Crown. What is of crucial importance for present purposes is that there is no further qualification that the immunity will disappear if the general jurisdiction of the court is exercised on some occasion in a manner which may lie or seem to lie, outside the conventional exercise of its power to hear and determine that sort of issue. … .”[12]
(Emphasis added.)
[11][1978] 1 NZLR 291 (“Nakhla”)
[12](Ibid) at [301]
30The Court in Nakhla, like Gleeson CJ in Fingleton, adopted the general principle set out by Lord Denning in Sirros.
31When grappling with issues similar to the issues which arise in this application, Woodhouse J went on to say:
“… However, the immediate question is simply whether the judge was acting at all relevant times within his general jurisdiction in the sense we have described. If the pleadings and the public record make it plain that he was, that is an end of the matter.”[13]
(Emphasis added.)
[13]Ibid
32Moving now to Moll v Butler,[14] a decision of the New South Wales Supreme Court. When considering the concept of jurisdiction, Wood J said:
“… Having jurisdiction to entertain and embark on the application, it seems to me that immunity would not be lost by reason of subsequent error in deciding the application. This was not a case where a judge sought to hear a matter within a class of matters outside the limited jurisdiction of the court, nor was it a case where he sought to exercise a power within a class of powers not entrusted to the court. At most it seems to me there was an error of law on his part in deciding to commit the plaintiff”.[15]
[14](1985) 4 NSWLR 231
[15](Ibid) at [244]
33His Honour, having considered Nakhla,[16] said:
“I believe that I should take the same approach in this case and conclude that the defendant did act within jurisdiction in entertaining the application, although he acted erroneously in the order he made. Notwithstanding that error, he is in my view entitled to judicial immunity on the material before the Court.”[17]
(Emphasis added.)
[16][1978] 1 NZLR 291 at [245]
[17](Ibid), paragraph D at [245]
34The concept of jurisdiction, in the context of judicial immunity, was further considered by the New South Wales Court of Appeal in Rajski v Powell.[18] Kirby P said:
“Attempts to modify, qualify or limit the scope of the immunity so conferred are made against the background of the enduring and universal features of the principle so established. Although exceptions have been provided, immunity has been consistently upheld, save in the most exceptional cases where a judicial officer acts knowingly in the clear absence of all jurisdiction: see, eg, Stump v Sparkman. As pointed out by Woodhouse J in Nakhla ‘jurisdiction’ in this context means the judicial power to hear and determine a matter. It does not mean the manner, method or correctness of the exercise of that power. It is a word, in the context, to be construed. broadly in order to ensure that the issue of judicial immunity does not come to depend upon the determination of fine questions of jurisdiction: … .”
(Emphasis added.)
[18](1987) 11 NSWLR 522
35The concept of jurisdiction was again considered by the New South Wales Court of Appeal in Yeldham v Rajski.[19] In the context of judicial immunity, Hope AJA said:
“It is not in issue and indeed it is well established that a judge of the Supreme Court cannot be made liable in civil proceedings for anything done by him in the performance of his judicial functions and within jurisdiction, even though he acts maliciously or corruptly: … .”
(Emphasis added.)
[19](1989) 18 NSWLR 48
36Referring now to another High Court decision.
37In Re East & Ors; Ex Parte Nguyen,[20] judicial immunity was considered in proceedings brought against the Magistrates’ Court and County Court of Victoria. The majority of the Court, consisting of Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ, said:
“… there is a well established immunity from suit which protects judicial officers from actions arising out of acts done in the exercise of their judicial function or capacity. … .”[21]
(Footnote omitted.)
(Emphasis added.)
[20](1998) 196 CLR 354
[21](Ibid), paragraph [30], at 238-329
38Moving now to yet another New South Wales Court of Appeal decision. That of Wentworth v Wentworth.[22] Fitzgerald JA, having referenced many of the cases which I have already referred to above, said:
“‘In summary, it is conclusively established by authority that judicial immunity extends to whatever a judge who is a member of a court does in the exercise of ‘… the broad and general authority conferred upon a court to hear and determine a matter.’ … .”[23]
(Emphasis added.)
[22](2001) 52 NSWLR 602
[23](Ibid) at paragraph [43]
39Turning now to a further decision of the New South Wales Supreme Court. In Fleet v Royal Society for the Prevention of Cruelty to Animals NSW (RSPCA),[24] Johnson J said:
“The concept of an act done without jurisdiction or in excess of jurisdiction involves acts clearly outside the exercise of the judicial function. It is not enough to assert that the judicial officer acted in a biased fashion or in bad faith or maliciously towards a person. In Fingleton v The Queen (2005) 79 ALJR 1250; [2005] HCA 34, Gleeson CJ confirmed the broad sense in which the term ‘jurisdiction’ is understood by the common law in the context of the doctrine of judicial immunity (paragraphs 35-36):”[25]
(Emphasis added.)
(c) What are the conclusions to be made flowing from the authorities in respect to “jurisdiction” in the context of judicial immunity?
[24][2005] NSWSC 926
[25](Ibid) at paragraph [36]
40The concept of jurisdiction for the purposes of judicial immunity is to be given a broad interpretation.
41Magistrate Bolger will have immunity from civil liability, providing she is acting in the exercise of her judicial function within the broad and general authority conferred on the Magistrates’ Court.
42Having identified the relevant principles, I now move to my analysis of the facts.
What are the circumstances giving rise to the proceedings and the application, and what findings of fact does the Court make?
43The events leading up to 27 August 2021 and the subsequent events through to 18 January 2022 are complicated.
44It is appropriate that I review the history in detail in order to provide a proper understanding of each party’s case and to add context to my determinations.
45In addition to the documentary evidence tendered by the parties,[26] Mr Brown tendered into evidence the audio recordings of various hearings in the MMC between 11 August 2021 and 13 January 2022.[27] I have listened to all of the audio recordings in evidence. These audio recordings have assisted me greatly in gaining an understanding of what occurred:
(a) within the MMC registry on 11 August 2021;
(b) in the course of those various hearings.
[26]The defendant’s list of Exhibits “A”, “B”, “C”, “D”; the plaintiff’s list of Exhibits 1, 2, 3, 4, 5, 6, 7, 8 and 9; and the amicus curiae’s list of Exhibits A1 and A2.
[27]Exhibits 4, 5, 6 and 7
46I now proceed to my review of the material facts which give rise to the proceedings.
(a) Events prior to 11 August 2021
47The relevant history goes back to 2019.
48On 9 September 2019, Mr Brown was arrested and a series of charges brought against him. These were the original “K” matter charges.[28] The informant in these matters being Detective Senior Constable Andrew James Russell (“Russell”).[29]
[28]Paragraph [29], Exhibit 1
[29]See s3 Criminal Procedure Act 2009, which defines an “informant” as a person who commences a criminal proceeding in the Magistrates Court;
49Subsequent to his arrest on these charges, Mr Brown was remanded in custody.
50Mr Brown spent sixty-seven days in custody before he was granted bail by Lasry J in the Supreme Court on 15 November 2019.[30] There were numerous conditions imposed to the grant of bail in the “K” matter by his Honour.[31]
[30]Paragraph [29], Exhibit 1
[31]See Exhibit 2, paragraph [27] and the bundle of documents RMBA001, which set out the conditions of bail as extended by the MMC 1 June 2021.
51The grant of bail in the “K” matter was extended by orders made in the MMC on:
(a) 18 November 2019;
(b) 17 February 2020;
(c) 1 May 2020;
(d) 27 November 2020;
(e) 11 December 2020.[32]
[32]Paragraph 18, Exhibit “A”
52The “K” matter was again listed before the MMC on 1 June 2021. On this occasion before Magistrate Crisp. On 1 June 2021, Magistrate Crisp:
(a) had the “K” matter charges listed for a contest hearing on 13 September 2021;
(b) extended the grant of bail to 13 September 2021 (“the 1 June 2021 orders”).[33]
[33]Paragraph 5, Exhibit 2; and paragraph 18, Exhibit “A”
(b) Events of 11 August 2021
53Moving now to the events of 11 August 2021.
54Mr Brown was on bail for the “K” matter charges.
55On 11 August 2021, Mr Brown was arrested by Detective Senior Constable Simona Tuica (“Tuica”), and forty-six charges were brought against him (“the Tuica charges”).[34] A number of these charges allege Mr Brown breached the conditions of his grant of bail in the “K” matter.
[34]Paragraph 16.2 TAT, page 15-64, Exhibit “A”
56At 6.12pm on 11 August 2021, Tuica forwarded to the Bail and Remand Court of the MMC an email (“the 11 August 2021 email”).[35]
[35]Page 12 of TAT, Exhibit “A”
57The 11 August 2021 email attached:
(a) a chargesheet and continuations containing the Tuica “M” matter charges;[36] and
(b) a document titled “Application by informant or Director of Public Prosecutions for an Order to Revoke Bail”, dated 11 August 2021, naming Mr Brown as the respondent to the application (“the application for revocation of bail”).[37]
[36]Paragraph 16 of Exhibit “A”
[37]Page 13 of TAT, Exhibit “A”
58The application for revocation of bail received by the MMC on 11 August 2021 at 6.12pm follows:
59At approximately 6.39pm, a court registrar created a new matter on the Courtlink system[38] for the Tuica charges. This being the “M” matter.
[38]Courtlink is a system operated by the MMC by which proceedings are managed. A full explanation is provided by Ms Tanya Ann Turner, principal registrar of the Magistrates’ Court of Victoria, in paragraphs [24]-[33] of her affidavit, dated 6 November 2023, being Exhibit “A”.
60At approximately 7.11pm, a court registrar listed the application for revocation of bail in the Courtlink system and allocated it to the “K” matter.[39]
[39]Paragraph [17], Exhibit “A”
61The application for revocation of bail made reference to:
(a) the 1 June 2021 Orders;
(b) the conditions of the grant of bail in the “K” matter.
62At some time (and the exact time is not identified), the Courtlink system was used to generate and put a coversheet in the “K” matter to be affixed to the application for revocation of bail.[40]
[40]Paragraph [19], Exhibit “A”
63The application for revocation of bail form identifies the application being made pursuant to s18AE(1) Bail Act 1977.[41]
[41]Section 18(6) of the Bail Act, prior to the Bail Amendment Act 2010, provided an application for revocation of bail could be made “by or on behalf of the informant or the Crown.” The Explanatory Memorandum to the amending legislation states the “New section 18AE clarifies the drafting of current section without changing the law.”
64I pause here to identify the relevant provisions of the Bail Act. It is s18AE and s18AF which are relevant. They provide:
“Application for revocation of bail
(1) The informant or the Director of Public Prosecutions may apply for revocation of bail granted to a person.
(2) An application under subsection (1) is to be made—
(a) in the case of a person charged with treason or murder, to the Supreme Court;
(b) in any other case, to the court to which the person is required to surrender under his or her conditions of bail.”
And:
“Determination of application for revocation of bail
On an application under section 18AE, the court may either—
(a)revoke bail; or
(b)dismiss the application.”
65Ms Turner deposed that both the “M” matter Tuica charges and the “K” matter application for revocation of bail were listed in the MMC before Magistrate Starvaggi on 11 August 2021.[42]
[42]Paragraph [21], Exhibit “A”
66I pause here to note Mr Brown disputes:
(a) an application for revocation of bail was ever made;
(b) an application for revocation of bail in the “K” matter was ever listed before the MMC and, in particular, before Magistrate Bolger.
67The audio of the hearing before Magistrate Starvaggi on 11 August 2021 forms part of Exhibit 6. I have listened to the audio of this hearing.
68Firstly, as to the matters which were listed before him on 11 August 2021, Magistrate Starvaggi said:
(a) Tuica had charged Mr Brown with forty-six offences (that is, the Tuica charges);
(b) “and there has also been an application for revocation of bail”.[43] (emphasis added.)
[43]Exhibit 6 at 12 seconds
69Magistrate Starvaggi went on to say:
(a) there had been multiple attempts to dial into the custody centre;
(b) he had been advised:
(i)Mr Brown was refusing to leave his cell;
(ii)they were seeking an ambulance.
70Consequently, there was no appearance by Mr Brown.
71Magistrate Starvaggi then said:
(a) the current time was 8.51pm;
(b) the cut-off for the court was 9.00pm.
72Magistrate Starvaggi then made orders:
(a) adjourning the Tuica charges (the “M” matter) to 12 August 2021;[44] and
(b) adjourning the application for revocation of bail in the “K” matter to 12 August 2021.[45]
[44]Pages 107-152 of the exhibit bundle TAT of Ms Turner, being Exhibit “A”.
[45]Page 106 of the exhibit bundle TAT-1 of Exhibit “A” of Ms Turner.
73Magistrate Starvaggi noted that Mr Brown had not been able to make a bail application tonight (that is, in the “M” matter).
74The Certified Extract of Magistrate Starvaggi’s order in the “K” matter on 11 August 2021 follows:
My findings of fact 11 August 2021
75In respect to the events of 11 August 2021, I accept that:
(a) Mr Brown was arrested by Tuica and the Tuica charges were brought against him;
(b) Tuica, at or about 6.12pm, forwarded to the MMC a chargesheet and continuations for the Tuica charges;
(c) a registrar of the MMC entered the Tuica charges into the Courtlink system. They are the “M” matter charges;
(d) the “M” matter Tuica charges were listed before Magistrate Starvaggi on 11 August 2021;
(e) Tuica, at or around 6.12pm, forwarded to the MMC the application for revocation of bail;[46]
(f) the application for revocation of bail was allocated by a registrar of the MMC to the “K” matter;
(g) Magistrate Starvaggi specifically referred to the application for revocation of bail, which he said had been made and which was before him;
(h) the application for revocation of bail in the “K” matter was listed before Magistrate Starvaggi on 11 August 2021;
(i) at or about 8.51pm, Magistrate Starvaggi made orders adjourning the Tuica charges (the “M” matter) to 12 August 2021;
(j) at or about 8.51pm, Magistrate Starvaggi made an order adjourning the application for revocation of bail in the “K” matter to 12 August 2021.
[46]Section 18AE of the Bail Act allows an informant or the Director of Public Prosecutions to apply to a court for bail to be revoked where an accused is required to appear on bail. As Senior Constable Tuica is an informant pursuant to s3 of the Criminal Procedure Act 2009, this application was appropriately made.
(c) Events of 12 August 2021
76Moving now to the events of 12 August 2021.
77Both the Tuica charges and the application for revocation of bail in the “K” matter, which had been adjourned by Magistrate Starvaggi the previous day, were listed at the MMC before Magistrate Bourke. I have listened to the audio of this hearing.[47]
[47]Part of Exhibit 6
78Magistrate Bourke, having had the matter of Mr Brown called, took appearances from both the prosecutor and Mr Brown.
79Mr Brown initially advised Magistrate Bourke:
(a) he could not think straight;
(b) he could not present his exceptional circumstances’ case (which would be necessary in any application for bail made by him).
80Magistrate Bourke then enquired from Mr Brown whether he wished to apply for bail.
81Magistrate Bourke, having discussed in general terms with Mr Brown his ill health and the need for Mr Brown to make an application for bail, said he was remanding Mr Brown in custody for a further seven days to 19 August 2021.
82Magistrate Bourke made orders adjourning the Tuica charges to 19 August 2021.[48]
[48]Pages 154-199 of TAT Exhibit “A”
83Magistrate Bourke then made orders in the “K” matter, adjourning the application for revocation of bail to 19 August 2021.[49]
[49]Page 153 TAT Exhibit “A”
84The Certified Extract of Magistrate Bourke’s orders in the “K” matter, made 12 August 2021, follow:
My findings of fact 12 August 2021
85In respect to the events of 12 August 2021, I accept:
(a) The Tuica charges were listed before Magistrate Bourke;
(b) The application for revocation of bail in the K matter was listed before Magistrate Bourke;
(c) Magistrate Bourke adjourned the Tuica charges to 19 August 2021;
(d) Magistrate Bourke adjourned the application for revocation of bail in the “K” matter to 19 August 2021;
(e) Magistrate Bourke adjourned the Tuica charges to 19 August 2021 to enable Mr Brown to make an application for bail in the “M” matter.
(d) Events of 19 August 2021
86This takes me to the 19 August 2021 hearing in the MMC before Magistrate Gilligan.
87I have listened to the audio of that day, which forms part of Exhibit 6.
88Mr Brown had remained in custody. Mr Brown appeared before Magistrate Gilligan via telephone.
89The prosecutor advised the court that no formal application for bail had been made by Mr Brown.
90Mr Brown advised:
(a) the matter had been adjourned the previous week because he was sick;
(b) he had not been able to make a formal application because he had no access to forms, nor the Bail Act;
(c) he had not received the charges;
(d) the matter was an abuse of process and a miscarriage of justice;
(e) he was unlawfully detained.
91After further discussion between Magistrate Gilligan and Mr Brown, Mr Brown advised:
(a) he wished to proceed with an application for bail; but
(b) he was not ready to proceed.
92I also note:
(a) Tuica was said to be present;
(b) the prosecutor advised Magistrate Gilligan that the bail hearing would need a full day to be heard.
93After liaison with the Listing Section at the Court, Magistrate Gilligan told the parties that he was booking the matter in for a hearing the next day. Magistrate Gilligan further advised:
(a) if the matter was not completed tomorrow, it would be adjourned to another day;
(b) he would have the charges sent to Mr Brown.
94Magistrate Gilligan made orders adjourning the Tuica charges in the “M” matter to 20 August 2021.[50]
[50]Pages 201-246, TAT Exhibit “A”
95Magistrate Gilligan made orders adjourning the application for revocation of bail in the “K” matter to 20 August 2021.[51]
[51]Pages 200, TAT Exhibit “A”
96The Certified Extract of Magistrate Gilligan’s order in the “K” matter, made 19 August 2021, follows:
My findings of fact 19 August 2021
97In respect to the events of 19 August 2021, I accept:
(a) the Tuica charges were listed before Magistrate Gilligan;
(b) the application for revocation of bail in the “K” matter was listed before Magistrate Gilligan;
(c) Magistrate Gilligan adjourned the Tuica charges to 20 August 2021;
(d) Magistrate Gilligan adjourned the application for revocation of bail in the “K” matter to 20 August 2021;
(e) Magistrate Gilligan adjourned the Tuica charges to 20 August 2021 to enable Mr Brown to make an application for bail and for a bail hearing to proceed on that day.
(e) Events of 20 August 2021
98Thus, Mr Brown appeared before Magistrate Bolger at the MMC on 20 August 2021 for the first time.
99I have listened to the audio of the 20 August 2021 hearing.[52] This forms part of Exhibit 4.
[52]The audio of 20 August 2021 proceedings form part of Exhibit 4.
100The hearing commenced at some time around 12 noon.
101After the matter was called on, there were initial discussions. I accept there was a level of confusion as to why Mr Brown was before the Court:
(a) Magistrate Bolger was initially under the impression that the matter was listed for the hearing of the substantive charges;
(b) the prosecutor said it was a bail hearing;
(c) Mr Brown expressed numerous concerns, including:
(i)the court had got it wrong the previous day;
(ii)he had only received documents an hour prior to the commencement of this hearing.
102Mr Brown, having been offered the opportunity by Magistrate Bolger to adjourn the bail hearing, advised Magistrate Bolger that he was ready to proceed.
103Mr Brown had a support person online, Mr George Koromilas.
104The prosecutor called Tuica to give evidence. She was sworn in.
105In the course of examination-in-chief, Tuica referred to a summary of facts.[53]
[53]This summary of facts is not in evidence before this court. It was said to run to some eleven pages. It was tendered in the course of the 20 August 2021 hearing. At a point of time, while Tuica was giving her evidence-in-chief, Magistrate Bolger said she had the benefit of this summary and was making notes on it.
106In her evidence-in-chief, Tuica outlined the history of police involvement with Mr Brown, including the allegations giving rise to the “K” matter charges.
107During Tuica’s evidence-in-chief, there were said to have been technical problems in the recording of the proceeding. The matter was temporarily adjourned to enable these problems to be addressed.
108After the resumption of the hearing and before Tuica started her evidence-in-chief again, there were further discussions between Mr Brown and Magistrate Bolger. These discussions included:
(a) the need for Mr Brown to establish exceptional circumstances in order to obtain bail;
(b) Mr Brown again being given the opportunity to adjourn the bail hearing;
(c) that the 20 August 2021 bail hearing had been listed with priority, given Mr Brown’s circumstances.
109In the course of her evidence Tuica referred to Mr Brown’s application for bail in the Supreme Court on 15 November 2019 before Lasry J (which was in respect to the “K” matter charges). Tuica detailed the bail conditions set by Lasry J.
110Tuica went on to outline the alleged breaches of those bail conditions by Mr Brown.
111Upon resumption of the hearing after lunch, there were said to be further technical problems.
112Ultimately, Tuica resumed her evidence-in-chief. By this time, she had progressed to paragraph 54 of the summary of facts.
113In the course of Tuica’s evidence-in-chief, it became apparent that Mr Brown also had an outstanding set of charges in the County Court. I will refer to these as the “Samson charges”. Mr Brown was also on bail in respect to the Samson charges.[54]
[54]27:30 minutes of part 4 of the 20 August 2021 audio
114Tuica went on to say:
(a) the 11 August 2021 charges brought by her included charges alleging Mr Brown had breached the conditions of his bail in the “K” matter;[55]
(b) the police strongly opposed Mr Brown’s release on bail;[56]
(c) the police considered Mr Brown was an unacceptable risk;[57]
(d) Mr Brown was on bail for Schedule 2 offences;[58]
(e) Mr Brown, it was alleged, had committed offences contrary to the Bail Act;[59]
(f) Mr Brown had prior convictions for committing indictable offences while on bail.[60]
[55]28:03 minutes of part 4 of the 20 August 2021 audio
[56]28:10 minutes of part 4 of the 20 August 2021 audio
[57]28:15 minutes of part 4 of the 20 August 2021 audio
[58]28:33 minutes of part 4 of the 20 August 2021 audio
[59]28:36 minutes of part 4 of the 20 August 2021 audio
[60]29:12 minutes of part 4 of the 20 August 2021 audio
115Towards the end of Tuica’s evidence-in-chief, the prosecutor tendered various documents into evidence. The tender included:
(a) the Order of Lasry J, dated 15 November 2019, granting Mr Brown bail in the “K” matter;[61]
(b) the Order of Magistrate Crisp, dated 1 June 2021, remanding Mr Brown to the 13 September 2021 contest mention (being the “K” matter);[62]
(c) the Orders relating to the Samson charges and the grant of bail in the County Court;[63]
(d) the charges in the “M” matter.[64]
[61]33:40 minutes of part 4 of the 20 August 2021 audio
[62]34:15 minutes of part 4 of the 20 August 2021 audio
[63]34:55 minutes of part 4 of the 20 August 2021 audio
[64]36:04 minutes of part 4 of the 20 August 2021 audio
116Tuica concluded her evidence-in-chief by again asserting the police opposed Mr Brown being released from custody on a grant of bail.
117Mr Brown then commenced his cross-examination of Tuica.[65]
[65]39:00 minutes of part 4 of the 20 August 2021 audio
118Mr Brown’s cross-examination of Tuica was still continuing at the end of court on 20 August 2021.
119Magistrate Bolger adjourned Mr Brown’s application for bail in the “M” matter, part heard, to 27 August 2021.[66] In the Orders Magistrate Bolger made in the “M” matter, she made a notation that:
“1. THE APPLICATION FOR BAIL HAS BEEN ADJOURNED, PART HEARD BEFORE MAGISTRATE BOLGER M
2. THE MATTER IS NEXT LISTED BEFORE THE COURT ON FRIDAY 27 AUGUST 2021
3. THE APPLICANT, ROHAN BROWN IS REMANDED IN CUSTODY TO APPEAR NEXT ON FRIDAY 27 AUGUST 2021.”[67]
[66]Exhibit “A”, pages 247-292
[67]Ibid
These “M” matter orders were entered by Magistrate Bolger into Courtlink between 4.04pm and 4.05pm.[68]
[68]Exhibit “A” at paragraph [22.2]
120Magistrate Bolger went on to make orders adjourning the application for revocation of bail in the “K” matter to 27 August 2021.[69]
[69]Page 247-292 of TAT, Exhibit “A”
121The Certified Extract of Magistrate Bolger’s order in the “K” matter on 20 August 2021 follows:
122Magistrate Bolger entered the Order adjourning the application for revocation of bail in the “K” matter into Courtlink at 4.14pm.[70]
[70](Ibid) at paragraph [22.2(b)]
My findings of fact 20 August 2021
123In respect to the events of 20 August 2021, I accept:
(a) the Tuica charges were listed before Magistrate Bolger, having been adjourned to 20 August 2021 by Magistrate Gilligan;
(b) Magistrate Bolger adjourned the Tuica charges to 27 August 2021 to be relisted back before herself;
(c) Magistrate Bolger adjourned Mr Brown’s application for bail in the “M” matter, part heard, to 27 August 2021;
(d) the application for revocation of bail in the “K” matter was listed before Magistrate Bolger, having been adjourned to 20 August 2021 by Magistrate Gilligan;
(e) Magistrate Bolger, on 20 August 2021, adjourned the application for revocation of bail in the “K” matter to 27 August 2021 to be relisted back before herself.
(f) Events of 27 August 2021
124This takes me to 27 August 2021. The matters were relisted back before Magistrate Bolger. I have listened to the audio of the 27 August 2021 hearing.[71]
[71]Exhibit 5
125On resumption of the hearing before Magistrate Bolger on 27 August 2021, Mr Brown raised concerns in respect to the service of documents on him. His submissions included:
(a) he had not been correctly served;
(b) there had been a breach of the Criminal Procedure Act;
(c) there was an abuse of process;
(d) that the substantive charges should be struck out.
126Magistrate Bolger was not prepared to grant Mr Brown’s application to strike out the substantive charges. Magistrate Bolger said:
(a) the matter before her was a bail hearing;
(b) Mr Brown knew the allegations which were being made against him;
(c) Mr Brown was capable of continuing the bail hearing.
127The cross-examination of Tuica resumed. It was lengthy. Mr Brown challenged Tuica on many fronts.
128At the conclusion of cross-examination, there was no re-examination by the prosecution.
129Magistrate Bolger then invited Mr Brown to explain why he should be released on bail.
130Mr Brown addressed the Court at length. I will not recite his submissions in detail. Mr Brown’s submissions included reference to:
(a) the lack of strength of the prosecution case;
(b) the matters being pursued by the police, being:
(i)scandalous;
(ii)frivolous;
(iii)vexatious;
(iv)malicious;
(v)reckless;
(vi)negligent malefices;
(vii)a conspiracy;
(c) the time he had spent in custody;
(d) the delays in dealing with the Russell charges (i.e., the “K” matter);[72]
(e) his employment opportunities;
(f) his Aboriginality;
(g) his health problems, including PTSD and autism;
(h) the behaviour of Tuica and the alleged poor quality of her evidence. He said she made many errors.
[72]13:40 minutes of part 7 of the 27 August 2021 audio
131Mr Brown also told Magistrate Bolger he would not send any more emails (his sending of emails being one of the bases of Mr Brown’s alleged breaches of the “K” matter bail conditions). Mr Brown provided the court with a detailed explanation of why he had no need to send further emails.
132Mr Brown concluded his submissions to Magistrate Bolger, asserting that the matter before the Court was “much more than a mere bail application”.[73]
[73]6:49 minutes of part 13 of the 27 August 2021 audio
133Magistrate Bolger then sought and received Mr Brown’s confirmation that he had completed his submissions.[74]
[74]7:45 minutes of part 13 of the 27 August 2021 audio
134Magistrate Bolger then asked Mr Brown a series of questions. In particular:
(a) the current state of the Samson charges:[75] Mr Brown advised that there was a directions hearing on 6 September 2021 and a trial in February 2022;
(b) the current state of the Russell charges (i.e., the “K” matter): Mr Brown advised this was listed for a contest hearing on 13 September 2021.[76]
[75]7:56 minutes of part 13 of the 27 August 2021 audio
[76]8:27 minutes of part 13 of the 27 August 2021 audio
135Having discussed these further matters with Mr Brown, Magistrate Bolger then asked the prosecutor to make any response he wished to make.[77]
[77]9:00 minutes of part 13 of the 27 August 2021 audio
136I will not (similarly to how I dealt with Mr Brown’s submissions) recite the prosecutor submissions in detail. In summary, the prosecutor:
(a) said exceptional circumstances had not been made out;
(b) addressed Magistrate Bolger in detail in respect to the Supreme Court bail application and the ruling by Lasry J;[78]
(c) referenced the medical report of Dr Leon Turnbull, consultant psychiatrist, which Mr Brown had relied upon at the time of the application before Lasry J;
(d) agreed Mr Brown’s Aboriginality was to be taken into account;
(e) asserted the prosecution cases were strong;
(f) said Mr Brown had breached the grant of bail set by Lasry J in the “K” matter;
(g) distinguished between the grants of bail in:
(i)the “K” matter; and
(ii)the Samson charges.
[78]Re Brown [2019] VSC 751 (per Lasry J)
(h) emphasised that Lasry J had made it clear to Mr Brown the consequences of breaching the conditions of his bail (i.e., the conditions of bail in the “K” matter);[79]
(i) said Mr Brown had breached his bail conditions time and time again;
(j) concluded by asserting Mr Brown was an unacceptable risk if released.[80]
[79]See in particular the 30-second mark through to 2:20 minutes of part 14 of the 27 August 2021 audio.
[80]5:10 minutes of part 14 of the 27 August 2021 audio
137At the conclusion of the prosecution submissions, Magistrate Bolger asked Mr Brown if he wished to make any response.[81]
[81]5:57 minutes of part 14 of the 27 August 2021 audio
138Mr Brown said he did. Mr Brown made numerous further submissions. In particular, Mr Brown revisited matters relating to the grant of bail in the “K” matter by Lasry J and the alleged breaches.[82]
[82]9:00 minutes of part 14 of the 27 August 2021 audio
139Magistrate Bolger, having heard the respective submissions, then proceeded to deliver her ruling and provide her reasons.
140Magistrate Bolger made particular reference to the decision of Lasry J on 15 November 2019 and the conditions of bail which had been set in the “K” matter.
141Magistrate Bolger said she was faced with similar circumstances to Lasry J.
142Specifically, Magistrate Bolger said:
“It is the conditions of bail it would seem to be set by his Honour Justice Lasry that is in issue at present, that is the conditions of bail to which Mr Brown is currently subject, and which it is said that he has breached by the matters that are newly before the court with new charges having been laid.”[83]
[83]11:27 minutes of part 14 of the 27 August 2021 audio
143Magistrate Bolger then continued her analysis of the judgment of Lasry J.[84]
[84]Re Brown (supra) (per Lasry J)
144Magistrate Bolger made reference to the two-step test set out in the Bail Act. That is:
(a) do exceptional circumstances apply?;
(b) is there an unacceptable risk of further offending?
145Magistrate Bolger, in respect to the first of these questions, concluded that exceptional circumstances were established.[85]
[85]8:20 minutes of part 14 of the 27 August 2021 audio
146Magistrate Bolger then moved to the second of the questions: That is, whether Mr Brown was an unacceptable risk of re-offending.
147Magistrate Bolger noted that Lasry J had said Mr Brown clearly understood he would return to custody if he were to breach the conditions of bail which had been set.[86]
[86]See the analysis of Magistrate Bolger at and around 12:00 minutes of part 14 of the 27 August 2021 audio.
148Magistrate Bolger concluded Mr Brown was an unacceptable risk of re-offending.[87] Magistrate Bolger said Mr Brown would not be released on bail. Mr Brown would remain in custody. Magistrate Bolger then detailed her reasons.[88]
[87]13 seconds of part 17 of the 27 August 2021 audio
[88]See 13 seconds to 5:00 minutes of part 17 of the 27 August 2021 audio.
149Magistrate Bolger went on to note that Mr Brown was next before the court on 13 September 2021 for a contest hearing (i.e., in the “K” matter).[89]
[89]5:15 minutes of part 17 of the 27 August 2021 audio
150There were further discussions in respect to the state of the Samson charges and the Tuica charges.
151It was after these discussions that Tuica, who was still present in court, raised an issue to do with personal safety intervention applications which Tuica said were also before the Court.
152In response, Mr Brown said:
(a) that was the first he had heard of these matters;
(b) they cannot be heard now;
(c) he did not agree to any orders being made in those matters.
153Magistrate Bolger said that she would adjourn the personal safety intervention applications to 28 September 2021.
154Magistrate Bolger said she was remanding Mr Brown to 28 September 2021.
155Magistrate Bolger made orders denying Mr Brown’s application for bail in the “M” matter.[90]
[90]See the orders made in the “M” proceedings, Exhibit “A”, TAT 294-339
156Magistrate Bolger entered the “M” matter orders into Courtlink between 3.51pm and 3.52pm.[91]
[91]Paragraph 22.3(a), Exhibit “A”
157Magistrate Bolger made orders in respect to the application for revocation of bail in the “K” matter. Magistrate Bolger ordered:
(a) the application was granted;
(b) the accused’s (i.e., Mr Brown’s) undertaking of bail is revoked.
158I pause here to note:
(a) Mr Brown said he was never told that, on 27 August 2021, the application for revocation of bail was before the court and to be determined;
(b) Magistrate Bolger did not, when handing down her ruling on 27 August 2021, use words to the effect “and I revoke the bail made by Lasry J” or similar.
159The certified extract of Magistrate Bolger’s order of 27 August 2021 in the “K” matter follows:
160Magistrate Bolger entered the orders granting the application for revocation of bail and revoking Mr Brown’s bail in the “K” matter into Courtlink at 3.53pm.[92]
[92]Paragraph 22.3(b) of Exhibit “A”
My findings of fact 27 August 2021
161In respect to the events of 27 August 2021, I accept:
(a) The Tuica charges were listed before Magistrate Bolger on 27 August 2021, having been adjourned to this date by her on 20 August 2021.
(b) Mr Brown’s application for bail in the “M” matter was listed before Magistrate Bolger on 27 August 2021, having been adjourned, part heard, from 20 August 2021.
(c) The application for revocation of bail in the “K” matter was listed before Magistrate Bolger on 27 August 2021, having been adjourned by her from 20 August 2021.
(d) Magistrate Bolger, in the course of the bail hearing, heard evidence and submissions which went to Mr Brown’s entitlement to bail. This included numerous references to, and discussions about, the grant of bail in the “K” matter and the alleged breaches of the conditions of that bail by Mr Brown.
(e) The prosecutor did not specifically refer to the application for revocation of bail.
(f) Mr Brown did not make any reference to the application for revocation of bail.
(g) Magistrate Bolger was not prepared to release Mr Brown from custody and grant him bail, as she found he was an unacceptable risk.
(h) Magistrate Bolger, when handing down her reasons, did not specifically refer to the application for revocation of bail.
(i) Magistrate Bolger made orders refusing Mr Brown’s application for a grant of bail in the “M” matter.
(j) Magistrate Bolger made orders granting the application for revocation of bail and revoking Mr Brown’s bail in the “K” matter.
(k) The Order refusing Mr Brown’s bail application in the “M” matter was entered into Courtlink between 3.51pm and 3.52pm.
(l) The Order revoking Mr Brown’s bail in the “K” matter was entered into Courtlink at 3.53pm.
(m) Magistrate Bolger did not seek to interfere with or make any orders in respect to Mr Brown’s grant of bail in respect to the Samson charges.
(g) Events of 12 January 2022
162On 12 January 2022, the “K” matter charges were listed in the MMC before Magistrate Bourke.
163I pause here to note that the “K” matter charges had previously been listed in the MMC before Magistrate Foster on 13 September 2021 for contest hearing. I am not privy to all that happened on 13 September 2021 and leading up to the 12 January 2022 listing before Magistrate Bourke. There had seemingly been orders relating to interlocutory steps.
164In any event, the matter came before Magistrate Bourke (noting he had previously made orders in the “K” matter back on 12 August 2021). I have listened to the audio of the 12 January 2022 hearing.[93]
[93]Exhibit 7
165After the hearing commenced, discussions between Magistrate Bourke, Mr Brown and the prosecutor turned to:
(a) the circumstances of Mr Brown being in custody;
(b) matters of bail.
166The prosecutor said:
(a) Mr Brown was on bail in respect to the “K” matter charges;[94]
(b) Mr Brown was in custody for other matters.
[94]13:05 minutes of the 12 January 2022 audio
167Mr Brown said he was in custody for the “K” matter charges.
168Magistrate Bourke, on reviewing the court records, said Mr Brown’s bail in the “K” matter had been revoked by the court on 27 August 2021.[95]
[95]13:25 minutes of the 12 January 2022 audio
169Mr Brown said that no application for revocation of his bail had been made.[96]
[96]13:25 minutes of the 12 January 2022 audio
170Magistrate Bourke responded to Mr Brown’s assertions by saying that there had been such an application. Magistrate Bourke then recited the history of the application for revocation of bail being before the court on:
(a) 11 August 2021;
(b) 12 August 2021;
(c) 20 August 2021;
(d) 27 August 2021.
171There were further discussions between Magistrate Bourke and Mr Brown. Magistrate Bourke again said an application for revocation of bail had been issued.[97]
[97]22:40 minutes of the 12 January 2022 audio
172The prosecutor, at this time, told Magistrate Bourke that he had not made an application for revocation of bail (this prosecutor having appeared on 27 August 2021).[98]
[98]22:44 minutes of the 12 January 2022 audio
173Magistrate Bourke responded by saying that “someone has filed a document seeking to revoke bail”.[99]
[99]22:50 minutes of the 12 January 2022 audio
174The prosecutor responded by saying:
(a) he had not made an application to revoke bail;
(b) there were no documents filed seeking to revoke bail.[100]
[100]23:04 minutes of the 12 January 2022 audio
175Magistrate Bourke then asked the question whether he should refix Mr Brown’s bail today.[101]
[101]23:14 minutes of the 12 January 2022 audio
176Not unsurprisingly, Mr Brown said that is what he wanted.
177The prosecutor said it was “a matter for the court”.[102]
[102]23:15 minutes of the 12 January 2022 audio
178There were further discussions about the application for revocation of bail.
179The prosecutor said, “I never made an application, and he [Mr Brown] never responded to any of that”.[103]
[103]23:30 minutes of the 12 January 2022 audio
180Magistrate Bourke then observed that, while the prosecutor may not have made the application, the informant may have.[104]
[104]23:40 minutes of the 12 January 2022 audio
181Magistrate Bourke went on to say that, on 11 August 2021, the application for the revocation of bail had been made to the Bail and Remand Court.[105]
[105]24:00 minutes of the 12 January 2022 audio
182There was ongoing discussion between Magistrate Bourke, Mr Brown and the prosecutor.
183Magistrate Bourke noted the application for revocation of bail had followed on with the other proceedings (that is, the Tuica charges and Mr Brown’s application for bail) to 27 August 2021.
184Magistrate Bourke then contemplated how best to deal with the matter, given the court record showed Mr Brown’s grant of bail having been revoked (that being the grant of bail in the “K” matter).
185The prosecutor, having previously positively asserted that there was no application for revocation of bail, then conceded he was “not sure”.[106]
[106]26:40 minutes of the 12 January 2022 audio
186There was ongoing confusion about the events of 11 August 2021.
187Magistrate Bourke went on to say:
(a) he wanted to clean up the bail issue;[107]
(b) he was considering making orders under the “Slip Rule”;[108]
(c) it was incorrect that Mr Brown was still in remand.[109]
[107]29:10 minutes of the 12 January 2022 audio
[108]29:05 minutes of the 12 January 2022 audio
[109]29:15 minutes of the 12 January 2022 audio
188There were further discussions about:
(a) the “M” matter;
(b) the conduct of the “K” matter charges, and
(c) the Samson charges.
189The discussion then returned to the application for revocation of bail form.[110]
[110]41:50 minutes of the 12 January 2022 audio
190While Magistrate Bourke said he was not able to locate the hard copy of the application for revocation of bail form, he said “it would not have been initiated on the system here, unless there was an application filed”.[111]
[111]42:00 minutes of the 12 January 2022 audio
191The prosecutor, at this time, then questioned Magistrate Bourke whether the magistrate (being Magistrate Bolger) could have in fact revoked the bail, given it was the Supreme Court which had granted it. Magistrate Bourke said, “it sure can”. The prosecutor then conceded he had been corrected.[112]
[112]43:10 minutes of the 12 January 2022 audio
192There was ongoing discussion in respect to the events of 27 August 2021. Magistrate Bourke said he wanted to know what the prosecution had to say.[113]
[113]45:20 minutes of the 12 January 2022 audio
193In response, the prosecutor said he had looked through his notes and he had recorded:
(a) bail refused;
(b) remanded in custody;
(c) adjourned to 28 September 2021.
The prosecutor said that he had not noted anything about the revocation of bail.[114]
[114]45:28 minutes of the 12 January 2022 audio
194Magistrate Bourke remained unconvinced. Magistrate Bourke said that he would “bet” that the documents had been filed.[115] Having made that observation, Magistrate Bourke adjourned the proceeding to the following day to “sort bail”.[116]
[115]45:46 minutes of the 12 January 2022 audio
[116]47:25 minutes of the 12 January 2022 audio
My findings of fact 12 January 2022
195In respect to the events of 12 January 2022, I accept:
(a) There was a great deal of uncertainty in respect to the application for revocation of bail which had been lodged with the MMC by Tuica on 11 August 2021.
(b) Magistrate Bourke, having reviewed the court record, said:
(i)someone had filed the application for revocation of bail;
(ii)he accepted that the application for revocation of bail was in the system;
(iii)the application for revocation of bail had followed the other proceedings (being the “M” matter charges and Mr Brown’s application for bail) and was listed on 27 August 2021;
(iv)an order had been made on 27 August 2021 revoking bail.
(c) The “K” matter was adjourned to 13 January 2022 to enable further clarification.
(h) Events of 13 January 2022
196The matter was listed back before Magistrate Bourke on 13 January 2022.
197Magistrate Bourke enquired of the prosecutor the state of the bail issue.
198The prosecutor said he had contacted the informant and Tuica, and no one has filed, or did file, a notice of application for revocation of bail.[117]
[117]20 seconds of the 13 January 2022 audio
199Magistrate Bourke remained troubled.
200Magistrate Bourke said it would be unusual to have a matter initiated on the court system without an application being made.[118]
[118]2:43 minutes of the 13 January 2022 audio
201Mr Brown asked Magistrate Bourke to make an order to reflect the error in the court system.[119] Mr Brown went on to say this was “not just a glitch”.[120]
[119]5:10 minutes of the 13 January 2022 audio
[120]5:13 minutes of the 13 January 2022 audio
202Magistrate Bourke remained concerned. Magistrate Bourke made the observation that, “something did not make sense”.[121] Indeed, Magistrate Bourke said it was his “gut instinct” that registry would not have proceeded with the application for revocation of bail without the documentation.[122]
[121]5:22 minutes of the 13 January 2022 audio
[122]6:33 minutes of the 13 January 2022 audio
203Magistrate Bourke then said he would refix Mr Brown’s bail.
204Magistrate Bourke said:
“The order will simply be somewhat of an explanation as to what has occurred requiring the fixing of bail today to rectify the situation where the advice from yourself and the prosecution to the Court was there was never an application made to revoke the bail in this matter and accordingly the orders previously revoking bail should not have been made, and I now fix the bail to rectify that anomaly.”[123]
[123]9:35 minutes
205Magistrate Bourke granted Mr Brown bail in the “K” matter. The conditions of the grant of bail were along the lines of those imposed by Lasry J back on 15 November 2019. In his order, Magistrate Bourke, under “Reasons for Granting Bail”, said:
“THIS BAIL HAS BEEN FIXED IN LIGHT OF PREVIOUS SUPREME COURT BAIL BEING FIXED. AND DESPITE THE COURT REGISTER SHOWING IT WAS REVOKED ON 27.8.21. IT SHOULD NOT HAVE BEEN REVOKED AS ALL PARTIES CONFIRM THAT AN APPLICATION WAS NOT LODGED TO REVOKE THIS BAIL OR ARGUED TO BE REVOKED. INTERESTS OF JUSTICE.”[124]
[124]Exhibit 1, Annexure RMBABOO1, page 6 of exhibit bundle
206I have no need to consider the merits of this grant of bail. As to the process, I note:
(a) s18(2) of the Bail Act provides that a person whose bail has been revoked under s18AE may make a further application for bail;
(b) s18(3) of the Bail Act provides that such application be made to the court where the accused is remanded to appear. In this case, the MMC;
(c) s18(4) provides that, if it is reasonably practicable to do so, an application under this section is to be heard by a court constituted by the same magistrate who heard the previous application for bail;
(d) the matter was not relisted back before Magistrate Bolger, but, rather, Magistrate Bourke made the Orders fixing bail;
(e) the prosecutor did not oppose the grant of bail. The prosecutor did not lead any evidence, nor did Magistrate Bourke require any evidence to be called. The prosecutor’s position can be contrasted to the position which that prosecutor had taken approximately five months earlier on 20 and 27 August 2021 before Magistrate Bolger.
207For completeness, I note that a hard copy of the application for revocation of bail in the “K” matter was located by staff of MMC in the hard-copy “M” matter file.[125]
[125]Exhibit “A” at paragraph [19]
My findings of fact 13 January 2022
208In respect to the events of 13 January 2022, I accept:
(a) The prosecutor told Magistrate Bourke that an application for revocation of bail had not been filed. That was mistaken.
(b) Magistrate Bourke continued to express concern about the initiation of the application for revocation of bail within the MMC computer system.
(c) Magistrate Bourke said that he based his orders on the advice from Mr Brown and the prosecutor that no application for revocation of bail had been made.
(d) Magistrate Bourke granted Mr Brown bail in the “K” matter.
My conclusions in respect to the application for revocation of bail
209Whether there was an application for revocation of bail in the “K” matter, and whether it was listed before Magistrate Bolger on 27 August 2021, is a matter in dispute. For the avoidance of doubt, I accept:
(a) The application for revocation of bail was forwarded by Tuica to the MMC at or about 6.12pm on 11 August 2021.
(b) The application for revocation of bail was allocated by a registrar of the MMC to the “K” matter.
(c) The application for revocation of bail in the “K” matter was listed before Magistrate Starvaggi on 11 August 2021.
(d) Magistrate Starvaggi adjourned the application for revocation of bail to 12 August 2021. The application for revocation of bail was then adjourned by:
(i)Magistrate Bourke from 12 August 2021 to 19 August 2021;
(ii)Magistrate Gilligan from 19 August 2021 to 20 August 2021.
(e) The application for revocation of bail was listed before Magistrate Bolger on 20 August 2021.
(f) The application for revocation of bail in the “K” matter was adjourned to 27 August 2021 by Magistrate Bolger.
(g) The application for revocation of bail was listed before Magistrate Bolger on 27 August 2021. On that day Magistrate Bolger made orders granting the application and revoking Mr Brown’s bail.
Some additional observations, having completed my review of the circumstances giving rise to the proceedings and the application
210Having completed my review of the background, and before moving on to detail my conclusions in respect to judicial immunity, I will, for completeness:
(a) acknowledge and detail the bad-faith allegations made by Mr Brown;
(b) revisit Magistrate Bolger’s submissions in response to those bad-faith allegations.
The bad-faith allegations made by Mr Brown
211Mr Brown made many allegations of bad faith against Magistrate Bolger.
212Mr Brown’s allegations in his amended statement of claim include assertions that:
(a) in revoking his bail in the “K” matter, Magistrate Bolger had made a deliberately wilfully-corrupt error;[126]
(b) Magistrate Bolger had deliberately and maliciously fabricated a version of events to have him unlawfully detained;[127]
(c) there was judicial misconduct of the most serious kind;[128]
(d) Magistrate Bolger had acted in a deliberate and unlawful manner.[129]
[126]Amended Statement of Claim at paragraph [9]
[127]Particulars of Aggravated Damages at paragraph (3)
[128]Particulars of Exemplary Damages at paragraph (a)
[129](Ibid) at paragraphs (c) and (e)
213Mr Brown, in his written and oral submissions, characterised Magistrate Bolger’s conduct, in the course of the bail hearings on 20 and 27 August 2021, as:
(a) in breach of natural justice;[130]
(b) an improper exercise of the power conferred on her;[131]
(c) making errors of law;[132]
(d) acting contrary to law;[133]
(e) taking into account irrelevant considerations;[134]
(f) failing to take into account relevant considerations;[135]
(g) exercising her power in a manner so unreasonable that no reasonable person could have so exercised the power.[136]
[130]Plaintiff’s Submissions, dated 26 September 2023, at paragraph [2]
[131](Ibid) at paragraph [6]
[132](Ibid) at paragraph [7]
[133](Ibid) at paragraph [10]
[134](Ibid) at paragraph [11]
[135](Ibid) at paragraph [12]
[136](Ibid) at paragraph [13]
Revisiting Magistrate Bolger’s submissions in the context of Mr Brown’s allegations of bad faith
214In response to Mr Brown’s allegations of bad faith, put simply, Magistrate Bolger said:
(a) They were denied.
(b) The application for revocation of bail was listed before her on 27 August 2021. She was seized of this application. It was incumbent upon her to determine the application. She had jurisdiction to do so, and indeed did. That being so, she has the protection of judicial immunity from civil liability, and that is the end of the matter.
(c) Alternatively, even if it was accepted there was some defect in the making of the Order revoking bail in the “K” matter on 27 August 2021 (which she denied), such order was still within the general jurisdiction of the Magistrates’ Court. Dealing with bail matters was something that the Magistrates’ Court does. It is a class of matter entrusted to the Court. Thus, making an order for the revocation of bail pursuant to s18AE Bail Act was within her jurisdiction, given the broad and general interpretation of jurisdiction set out by the authorities.
(d) The making of orders in bail matters is within her judicial function. That is, it is something within her capacity, and not dependent on fine questions of jurisdiction.
(e) Even if she had (which she denies) acted in bad faith (including the various allegations made in paragraphs 212 and 213 above), that did not take her outside jurisdiction and defeat her judicial immunity.
Application of the facts and circumstances to the legal principles
215I shall firstly detail my conclusions in respect to the availability of the protection of judicial immunity to Magistrate Bolger, and I will then summarise my analysis.
(a) My conclusions in respect to the application of judicial immunity to the proceedings
216I accept that Magistrate Bolger, on the facts and circumstances as I find them, and given the principles to be applied, on 27 August 2021, when she made the Order to revoke Mr Brown’s bail in the “K” matter, was acting within jurisdiction.
217It follows that Magistrate Bolger, for the purpose of the proceedings, has the protection of judicial immunity from civil liability.
218Mr Brown, in the course of the hearing, was clearly troubled by what he considered Magistrate Bolger’s acts of bad faith. It is necessary to put Mr Brown’s concerns into context. The authorities establish that judicial immunity provides a judge with protection from civil liability, even if that judge, acting within his or her jurisdiction, acts in bad faith. For example, a judge will have judicial immunity even if he/she acts:
(a) in bad faith or with ignorant and careless disregard of the facts or unlawfully;[137]
(b) maliciously and contrary to good faith;[138]
(c) with actual bias and/or malice;[139]
(d) maliciously or corruptly;[140]
(e) with a malicious motive,[141]
(f) for the purposes of gratifying private spleen.[142]
[137]Rajski v Powell (supra) at 539G
[138]Anderson vGorrie [1895] 1 QB 668 at 620
[139]Wentworth v Wentworth (supra), paragraph [27] at 614
[140]Rajski v Yeldham (supra) at 66F
[141]Wentworth v Wentworth(supra) at paragraph [188] (per Heydon JA)
[142]Ibid
(b) My analysis and the basis for my conclusion
219Moving now to my analysis. Firstly, I rely upon the findings of fact and the analysis of the legal principles already set out in this ruling. Further, in summary, I accept:
(a) Magistrate Bolger, by reason of s14(1) of the Magistrates’ Court Act, has the same jurisdiction as a judge of the Victorian Supreme Court. That is, a superior court judge.
(b) The general principles set out in Sirros, and adopted over the years, establish that a judge acting within their jurisdiction has the benefit of judicial immunity from civil suit.
(c) Jurisdiction in the context of judicial immunity is to be given a broad interpretation.
(d) Dealing with matters of bail and, in particular, the making of orders pursuant to s18AE of the Bail Act, is something which falls within the jurisdiction of the Magistrates’ Court. Making such orders is something that the Magistrates’ Court does.
(e) The application for revocation of bail in the “K” matter was listed before Magistrate Bolger on 27 August 2021. The application for revocation of bail having been:
(i)Filed with the MMC by Tuica on 11 August 2021.
(ii)Entered into the Courtlink system by a registrar of the MMC on 11 August 2021.
(iii)Listed before Magistrate Starvaggi on 11 August 2021 and then adjourned to 12 August 2021.
(iv)Listed before Magistrate Bourke on 12 August 2021 and then adjourned to 19 August 2021.
(v)Listed before Magistrate Gilligan on 19 August 2021 and then adjourned to 20 August 2021.
(vi)Listed before Magistrate Bolger on 20 August 2021 and then adjourned by her to 27 August 2021, when it was to be again listed before her.
(vii)Subject to the Orders made by Magistrate Bolger on 27 August 2021.
(f) A bail hearing was held. The bail hearing ran over 20 and 27 August 2021. Mr Brown said he should be subject to a grant of bail. The prosecution said Mr Brown was an unacceptable risk and he should not be released from custody.
(g) In the course of the 20 and 27 August 2021 bail hearing:
(i)No specific mention was made by the prosecutor to the application for revocation of bail.
(ii)Tuica, in her evidence, asserted Mr Brown should not be released on bail. It was her evidence that he was an unacceptable risk.
(iii)Mr Brown did not make reference to the application for revocation of bail.
(iv)There is no evidence to establish that Mr Brown was aware of the application for revocation of bail in the “K” matter.
(v)There was reference to Mr Brown’s grant of bail in the “K” matter and the alleged breaches.
(h) Magistrate Bolger, having accepted that Mr Brown was an unacceptable risk and was not to be released from custody, made orders on 27 August 2021, refusing Mr Brown’s bail application in the “M” matter.
(i) Magistrate Bolger, having accepted that Mr Brown was an unacceptable risk and was not to be released from custody, then made orders on 27 August 2021, granting the application for revocation of bail in the “K” matter.
(j) The Order which Magistrate Bolger made granting the application for the revocation of bail in the “K” matter was consistent with her order to refuse Mr Brown’s application for bail in the “M” matter.
(k) The Orders which Magistrate Bolger made on 27 August 2021 were:
(i)made in the course of her judicial function;
(ii)in respect to applications which were listed before her;
(iii)within jurisdiction, given the manner in which jurisdiction is to be construed.
(l) As Magistrate Bolger was acting within jurisdiction, she has the protection of judicial immunity to civil liability.
(m) Magistrate Bolger has the protection of judicial immunity in the proceedings.
(n) The Orders of Magistrate Bourke of 13 January 2022, and the notation which Magistrate Bourke made, are not determinative of the question of jurisdiction, nor conclusive that the application for revocation of bail was not listed and properly before Magistrate Bolger on 27 August 2021.
Is Magistrate Bolger entitled to an order for summary judgment?
220Having determined that Magistrate Bolger is entitled to the protection of judicial immunity from civil liability, I now move to her application for summary judgment.
(a) What is the basis of Magistrate Bolger’s application for summary judgment?
221Sections 61 and 62 of the Civil ProcedureAct 2010 (“CPA”) provide, respectively, that a plaintiff or a defendant may apply for summary judgment in a civil proceeding on the ground that the other’s claim or defence has no real prospect of success.
(b) What is the test to be applied by me when considering Magistrate Bolger’s application for summary judgment?
222The task in determining whether to grant summary judgment pursuant to s63 of the CPA has been set out by the Court of Appeal in Lysaght Building Solutions Pty Ltd (t/as Highline Commercial Construction) v Blanalko Pty Ltd.[143] There, Warren CJ and Nettle JA said:
“Upon the present state of authority:
(a)the test for summary judgment under s 63 of the Civil Procedure Act 2010 is whether the respondent to the application for summary judgment has a ‘real’ as opposed to 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;
(c)it should be understood, however, that the test is to some degree a more liberal test than the ‘hopeless’ or ‘bound to fail’ test essayed in General Steel and, therefore, permits of the possibility that there might be cases, yet to be identified, in which it appears that, although the respondent’s case is not hopeless or bound to fail, it does not have a real prospect of success;
(d)at the same time, it must be borne in mind that the power to terminate proceedings summarily should be exercised with caution and thus should not be exercised unless it is clear that there is no real question to be tried; and that is so regardless 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.”[144]
[143](2013) 42 VR 27
[144]Ibid
223The authorities also establish that, where a party’s case relies on factual matters that are in dispute, a court should take the case at its highest and assume that the matter asserted will be established at trial.[145] Thus, a court will more readily hold that the summary judgment provisions of the CPA will be satisfied when the resolution of a dispute depends on the question of law, rather than on a question of fact.[146]
[145]Demediuk, Re [2016] VSC 587 at paragraph [19]
[146]Ibid
(c) Given the Court’s finding, does Mr Brown have a real prospect for success?
224For Magistrate Bolger to be entitled to summary judgment, I must be satisfied that Mr Brown’s case has no real prospect of success.
225I accept that the power to summarily terminate proceedings must be exercised with caution.
226I make no findings in respect to the allegations of bad faith made by Mr Brown. I do not need to. I accept, in making the order to revoke bail on 27 August 2021, Magistrate Bolger was:
(a) acting within jurisdiction;
(b) exercising her judicial function.
Put simply, I accept Magistrate Bolger has the protection of judicial immunity from civil liability.
227That being so, Magistrate Bolger cannot be made liable in the proceedings. It follows that Mr Brown has no real chance of success.
228Given my conclusions, summary judgment will be entered in Magistrate Bolger’s favour.
What then becomes of Magistrate Bolger’s abuse of process applications?
229Given my findings in respect to Magistrate Bolger’s application for summary judgment, it is not necessary for me to finally determine the other grounds of the application. I make no formal findings in respect to paragraphs 2 and 3 of the application.[147]
[147]See the documents referred to in paragraph [27], Exhibit 1
Orders
230I shall hear the parties in respect to the consequential orders to be made in the application.
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