Cai v County Court of Victoria
[2016] VSC 427
•29 JULY 2016
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S CI 2016 00068
| JACK CAI | Plaintiff |
| v | |
| THE COUNTY COURT OF VICTORIA | First Defendant |
| THE REGISTRAR OF THE COUNTY COURT OF VICTORIA | Second Defendant |
| MICHELLE CORBETT, TRAFFIC CAMERA OFFICE | Third Defendant |
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JUDGE: | JOHN DIXON J |
WHERE HELD: | MELBOURNE |
DATE OF HEARING: | 14 JULY 2016 |
DATE OF JUDGMENT: | 29 JULY 2016 |
CASE MAY BE CITED AS: | CAI v COUNTY COURT OF VICTORIA & ORS |
MEDIUM NEUTRAL CITATION: | [2016] VSC 427 |
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JUDICIAL REVIEW – Decision by a County Court judge about adequacy of response to a subpoena duces tecum – Traffic offence – Appeal to County Court following conviction by a magistrate – Subpoena seeking production of red light camera manual – Subpoena initially struck out as fishing – Relief in nature of Certiorari and Mandamus granted by Supreme Court – On remitter to County Court further sections of manual provided to the plaintiff – Whether error of law on the face of the record – No error in reasoning – No denial of procedural fairness – Supreme Court (General Civil Procedure) Rules 2005 (Vic) O 56.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr J Cai (in person) | |
| For the Third Defendant | Mr S Russell | Maddocks |
| For the First and Second Defendants | No appearance |
HIS HONOUR:
The plaintiff seeks judicial review of the decision of a County Court judge on the return of a subpoena to produce documents in the plaintiff’s appeal against a traffic offence conviction in the Magistrates’ Court at Moorabbin in December 2013. The plaintiff applied to this court for inspection of the entire manual concerning the prescribed road safety camera (‘the manual’). The manual related to the red light camera that was used to detect his vehicle entering the intersection against a red traffic arrow in contravention of s 60 of the Road Safety Road Rules 2009 (Vic).[1]
[1]Paragraphs 6 and 7 of the plaintiff’s summons were struck out, as they pertained to matters that, if relevant, could only properly be considered by the County Court.
For the following reasons, the originating motion will be dismissed.[2]
[2]For the purposes of this judgment I will refer to the third defendant as ‘the defendant’, noting that there was no appearance for the first or second defendants.
Background
The plaintiff issued three subpoenas seeking the production of documents to a County Court judge on 24 June 2014. After hearing argument, the judge set aside the subpoenas, finding that the plaintiff was fishing.
The plaintiff applied to the Supreme Court for review of this decision. Ginnane J upheld the validity of the decision to strike out two of the subpoenas but found that the plaintiff had established a legitimate forensic purpose with respect to the third subpoena, being the subpoena directed to production of the manual (‘the manual subpoena’).[3] The matter was remitted to the County Court to enable the ‘Traffic Camera Office’ to produce the manual to the court and for the plaintiff to apply to inspect it.[4]
[3]Cai v The County Court of Victoria [2015] VSC 267.
[4]There were unresolved questions about relevance and public interest immunity.
On remittal in December 2015, the primary judge dealt with the plaintiff’s entitlement to inspect the manual, which had been produced to the court and was available to the judge. Prior to that date, the defendant provided to the plaintiff some extracts that, it contended, responded to the legitimate forensic purpose identified by Ginnane J.[5] His Honour received submissions from both parties, considered the reasons published by Ginnane J, and reviewed the manual in its entirety for relevance to the plaintiff’s case. The judge then ordered that the plaintiff be provided with some further extracts, in addition to those which had been volunteered.
[5]On 1 July 2015 the plaintiff had been provided with extracts from pages 3, 4 and 20 of the manual.
The plaintiff is not legally qualified, was self-representing, and is not fluent in English. Through most of the hearing before me, the plaintiff was assisted by an interpreter. It is clear that the plaintiff has either not read, or not understood, the order made by Ginnane J or his Honour’s reasons, and failed to appreciate the course that events would take once the manual subpoena was remitted to the County Court.
This proceeding is limited to review of the decision of the primary judge on the remittal to release a limited part of the manual to the plaintiff for inspection. The plaintiff’s principal complaint was that he has not received the entire manual following the decision of Ginnane J, it being his understanding that it would be provided to him directly and without further order. At the hearing, the plaintiff attempted to re-agitate his arguments put to Ginnane J in respect of the two other subpoenas relating to testing and service records for the camera. I refused to entertain such submissions.
Decision of Ginnane J
To understand the plaintiff’s contentions, it is necessary to explain the substance of the reasons and order of Ginnane J. His Honour accepted that the obligation of the party issuing a subpoena seeking documents is to establish a legitimate forensic purpose for access to such documents. The plaintiff’s subpoena requested the following:
Red light camera operation, test, and training manual, regarding to Red Hex HDX System. Include:
(1) Setup outline of sensors, specification of gap between sensors.
(2) Specification of signal, trigger, e-file format.
(3) Outside, test, service procedure, record format, etc.
(4) Specification of camera output as evidence (sic).
Ginnane J found that with regard to this subpoena, the plaintiff’s stated purpose was:[6]
To establish the point at which the photograph, the camera and the time clock treated his vehicle as having first entered the intersection, in order to challenge the 2.2 second time elapse annotation contained on the photograph.
[6][2015] VSC 267, [48].
His Honour found error in the County Court’s decision to set aside the manual subpoena.[7]
[7]Ibid, [46]-[50] (citations omitted).
In my opinion, Mr Cai has established that the judge made an error of law on the face of the record by setting aside the manual subpoena. Mr Cai had stated a legitimate forensic purpose to justify production of the manual. The only issue in the proceeding was whether his vehicle entered the intersection against the red arrow. The informant relied on the certificate under s 83A, with its photographs and annotation of when Mr Cai’s vehicle entered the intersection. Mr Cai was entitled to produce evidence to the contrary.
Mr Cai’s defence appears to be that the photographs and annotation erroneously record the time at which his vehicle entered into the intersection, as his vehicle had already entered the intersection before the change of traffic light to red. Alternatively, he contended that that the photographs recorded the progress of parts of his vehicle after the front of his vehicle had entered the intersection. Mr Cai’s defence to the charge may require him to establish what the annotation on the photograph meant. The photographs do not appear to show the point of entry of Mr Cai’s vehicle into the intersection. Nor is there an indication of what information the annotation on the photograph conveys when it states ‘when the vehicle entered in the intersection’ that 2.2 seconds had elapsed since the lights turned red.
The judge proceeded on the basis that Mr Cai wanted to know whether the sensors were working properly. That would have been a fishing expedition. However, Mr Cai indicated that he was attempting to establish a different point. He wanted to establish the point at which the photograph, the camera and the time clock treated his vehicle as having first entered the intersection, in order to challenge the 2.2 second time elapse annotation contained on the photograph.
I consider, with respect, that his Honour did not identify or consider the basis on which Mr Cai argued that he had a legitimate forensic purpose for issuing the manual subpoena. There was, of course, no definite proof that the contents of the manual would assist his case, but as Gibbs CJ stated in Alister v R:
Although a mere “fishing“ expedition can never be allowed, it may be enough that it appears to be “on the cards“ that the documents will materially assist the defence.
His Honour applied the applicable legal principle of legitimate forensic purpose. However, I consider, with respect, that his Honour did not address the relevant questions and issues raised by Mr Cai’s statement of his purpose for issuing the manual subpoena and made an error of law in the sense discussed in the passage that I have quoted from Craig v South Australia.
Accordingly, the plaintiff succeeded in quashing the order setting aside the manual subpoena. Ginnane J made the following orders:
1.An order issue in the nature of certiorari, quashing that part of the order of his Honour Judge Montgomery of the County Court of Victoria made 24 June 2014 that set aside the plaintiff’s subpoena dated 21 March 2014, directed to the ‘Traffic Camera Office (Michelle Corbett)’.
2.An order issue in the nature of mandamus, remitting the subpoena referred to in order 1 to his Honour Judge Montgomery of the County Court of Victoria, for another judge of the County Court of Victoria, to be dealt with according to law and in accordance with this Court’s reasons for judgment.
3.The plaintiff’s amended originating motion filed on 29 October 2014 is otherwise dismissed.
On 12 June 2015, when this judgment was pronounced, the plaintiff appeared in person and without the assistance of an interpreter. After reasons for judgment were delivered, the following exchange occurred:
HIS HONOUR: Now Mr Cai and Mr Russell, that means that I have decided you had a basis for requiring the production of the manual, but I have decided that you did not have a basis for all requiring the production of the records, the service records. So I publish my reasons.
You will – the court will issue an order later today that will be sent to you and to Mr Russell and his instructors. You will need to go across to the County Court, the court will send the registrar of the County Court and Judge Montgomery a copy of the order and the reasons. Can you understand what I’m saying?
MR CAI:(Indistinct).
HIS HONOUR: No wait till I – wait till I finish what I’m saying. You haven’t got your interpreter here today?
MR CAI:(No audible response).
HIS HONOUR: All right. Wait till I say it again. You will need to go back to the County Court registry and ask them – give them a copy of the judgment and the order, that’s the judgment, and we will be emailing you probably later today, a copy of the formal court order and you will then need to go across to the court promptly, quickly, by which I mean I think you should go over next week.
…
MR CAI:(Indistinct).
HIS HONOUR: I can’t understand that.
MR CAI: (Indistinct).
HIS HONOUR: That’s the effect of my decision, yes.
MR CAI:(Indistinct) together (indistinct).
HIS HONOUR: No, you can’t keep the ---
MR CAI:(Indistinct) first (indistinct).
HIS HONOUR: I’ve made a decision that you can get the manual, but not the service records.
MR CAI:(Indistinct).
(My emphasis)
The plaintiff’s primary submission relied on the passage that I have emphasised. I am satisfied that the plaintiff is under the impression, wrongly based on the above exchange with his Honour following judgment, that he would receive a full copy of the manual automatically and without further intervention by the County Court. This understanding is plainly incorrect. In the above exchange, Ginnane J was clearly attempting to explain to the plaintiff in the simplest terms possible, as he was without the aid of an interpreter, that his proceeding had succeeded regarding the manual subpoena, but had failed in respect of the other two subpoenas.
The manual was not produced to Ginnane J who did not examine it.
Hearing before primary judge
At the hearing on 10 December 2015 before the primary judge, the plaintiff appeared in person and without the aid of an interpreter. The plaintiff sought production of the manual in its entirety, evidently believing on the basis of the exchange set out above, but contrary to the order and reasons of Ginnane J, that he was now positively entitled to inspect it. The defendant submitted that the plaintiff had been provided with all parts of the manual that dealt with the legitimate forensic purpose identified by Ginnane J. The defendant argued that the remaining parts of the manual contained irrelevant information which failed to meet a legitimate forensic purpose. For example, detection of the plaintiff’s vehicle was determined by induction loops rather than piezo strips, and accordingly parts of the manual that deal only with piezo strips had no relevance.
It is clear from the transcript of the hearing that the judge considered Ginanne J’s reasons and received submissions in respect of the application of the legitimate forensic purpose in respect of the appeal to the content of the manual. The judge examined the manual page by page. The defendant informed the judge that parts of the manual had already been provided to the plaintiff in July 2015.
The defendant obtained the transcript of this hearing just prior to the hearing and although the plaintiff was in possession of a copy of it, he had not considered its contents and was basing his submissions upon his recollections, which were clearly imperfect. I was satisfied that he had not enjoyed a sufficient opportunity to consider the transcript and I granted leave to the plaintiff to file a further written submission after the conclusion of argument to direct me to those parts of the transcript that the plaintiff wished to emphasise. That further submission was duly received and considered.
The hearing was beset by the plaintiff’s difficulties, first with language, in not understanding what was being said to him, and in not making himself intelligible to the court. I was greatly assisted by the services of the interpreter who was forced at times by the circumstances to act more like a McKenzie friend than an interpreter. The second difficulty was the plaintiff’s attitude and demeanour. He continuously interrupted in a manner that demonstrated that he was not listening to what was being said to him and had no interest beyond pressing his construction of events. In short, he was disrespectful. His demeanour and attitude was properly so characterised before me and it appeared to have been similar before Ginnane J and the primary judge.
The following exchange is one of several examples in which the plaintiff was evidently at cross purposes with the primary judge over the objectives of the hearing:
MR CAI:Supreme Court judgment say for my everything –
HIS HONOUR: You’re not en-
MR CAI:You haven’t let me say anything I want to say –
HIS HONOUR: Only because you won’t listen to me, I’m going to administer –
MR CAI:Please give me chance to say –
HIS HONOUR: Well wait until I found out what’s happening –
MR CAI:Not say you need to – I want to give you break of case and I want to tell my point [indecipherable]
HIS HONOUR: You’re going to listen to me for a moment Mr Cai. You had the same problem with Judge Hannan, you can see from the transcript, you wouldn’t let anyone else talk. There is a process, I need to understand what is happening and what we are here today to do. Now what we are about and see if you agree with this, is how much, what you get under the subpoena that Justice Ginanne said was valid.
MR CAI:Judge Hannan said full manual for me – definitely, Supreme Court ruling is full manual for me not just 1 page or 2 page he said I can have for some test –
HIS HONOUR: He did not, his Honour –
MR CAI:I give a –
HIS HONOUR: Have you read his Honour’s ruling?
MR CAI:I read the ruling, I read all the judge’s ruling in the Supreme Court – definitely, I asked for full manual, Supreme Court judge give me it he didn’t say part of the manual or relevant page give to – not say manual give to –
The plaintiff repeatedly insisted that he was entitled to the entire manual:
HIS HONOUR: Last chance, the Supreme Court did not say you are entitled to the full manual, the Supreme Court said the subpoena comes back to this court to determine. I then determine on behalf of this court, what you get. Now I’ve looked at the subpoena Mr Russell says -
MR CAI:Let me – I have give evidence and argue I should have full manual in front of me
HIS HONOUR: I know you say -
MR CAI:In front of you –
HIS HONOUR: Listen you can argue that you should be entitled to the full manual from me –
…
MR CAI:Honour, I have 6 point I want to say -
HIS HONOUR: What you have said has been wrong but anyway, read you six points, read your six points –
MR CAI:Your honour give me fair go – give me fair go –
HIS HONOUR: Don’t start that – no –
MR CAI:Let me – one thing is I want to -
HIS HONOUR: Mr Cai, when you say things like give me a fair go, all you do is annoy me, I’m trying to conduct this according to law.
MR CAI:Sorry sorry.
HIS HONOUR: And there is a process so read your case out and I’ll make careful notes of what you are saying.
MR CAI:Before your Honour say you say could be this only part of the manual, Supreme Court meaning of this, this issue, I can hear you – if you make a decision if not what I want I can go to Supreme Court again.
Another thing is Defendant has Supreme Court decision come out all of these confused part of manual or full manual they had a chance to appeal in up Court in Federal Court right if they didn’t want to appeal that means they haven’t any base to run in law so even if they don’t want to appeal in Supreme Court – this court order and decision is law. So you follow law there is no any chance – appeal Supreme Court this court.
HIS HONOUR: You’ve done it again, you’ve done it again because you don’t understand the law.
MR CAI:Sorry let me say -
HIS HONOUR: And not wait on because your argument is they could have appealed against the Supreme Court decision, the Supreme Court decision says give you the full manual therefore it’s all determined.
MR CAI:We just start at full manual not part of manual I just say they can’t run an appeal hearing of Supreme Court decision in this court right, your Honour.
HIS HONOUR: They are not appealing the Supreme Court decision –
MR CAI:[Inaudible]
HIS HONOUR: The Supreme Court decision is being complied with, they’ve sent it back to me to determine, unfortunately –
MR CAI:One point is if you are confused we can go to Supreme Court for full manual this is basic ruling.
HIS HONOUR: Look you’ve –
MR CAI:My point is that –
HIS HONOUR: Stop, sit down, you keep you don’t listen. It is nothing to do with appealing the Supreme Court ruling we are following the Supreme Court ruling and determining whether the subpoena is now valid, you have a legitimate forensic purpose …
At the conclusion of the hearing, the judge ordered that some further parts of the manual be released to the plaintiff for inspection, but refused the plaintiff’s application that the court release the full manual.
His Honour published short reasons for his decision, which were as follows:[8]
[8]DPP v Cai (Unreported, County Court of Victoria, Judge Chettle, 10 December 2015).
This is a return of the subpoena issued by the appellant relating to an appeal that will be heard in this court next year. There were three subpoenas originally issued by the appellant. They were dealt with by Judge Montgomery in this court and effectively His Honour struck out all three subpoenas. The appellant appealed to the Supreme Court and the matter was dealt with by Justice Ginnane on 12 June 2015 in judgment delivered by him in the matter of Cai v County Court of Victoria [2015] VSC 267.
It is apparent from a reading of that authority that His Honour found that there was a legitimate forensic purpose in respect of one of the subpoenas issued by Mr Cai and overturned Judge Montgomery’s decision in relation to that subpoena.
Justice Ginnane distinguished between fishing expeditions and legitimate forensic purpose when Mr Cai indicated to His Honour that he wished to know whether the road camera sensors were working properly. Mr Cai made a similar submission to me this morning.
Justice Ginnane said at paragraph 48: “Mr Cai indicated he was attempting to establish a different point. He wanted to establish the point at which the photograph, the camera and the time clock treated his vehicle as having first entered the intersection in order to challenge the 2.2 second time lapse annotated contained on the photograph”.
His Honour went on to say that there was in respect of that issue a legitimate forensic purpose and send the subpoena back to this court to law. That is what I am doing now, determining whether or not the subpoena has been complied with.
Mr Russell, who appeared for the Traffic Camera Office provided me with a copy of documents which he has already provided to the appellant. He asserted that he had complied with the subpoena. Mr Cai wanted to see the entire Manual relating to the operation of road safety cameras. I have examined that manual carefully.
The subpoena has been, in my view, substantially complied with. When I examined the manual sought by the appellant it is clear that all parts of that manual relevant to his case have been provided to him save and except two small sections which I identified to Mr Russell in discussion. One, from p.2 of the manual headed “System Overview” and one small section from p.24 from “Loop Settings” at the top of that page.
When those items are provided in addition to what he has already been given Mr Cai has every portion of the manual relevant to the argument he wishes to raise relevant to the legitimate forensic purpose identified by Justice Ginnane. There are other parts of that manual that have absolutely no relevance to the case brought against him. They relate to systems, tunnels and other things to do with road camera operation in Victoria that are completely irrelevant to his case. Mr Cai has got what he is entitled to. The subpoena has been complied with when those parts are provided.
Principles
There is no automatic right of appeal from this discretionary decision. In seeking judicial review, the plaintiff carries the burden to establish an error of law or other error on behalf of the primary judge that would require this court’s intervention. The relevant principles may be drawn from the analysis by Osborn J (as he then was) in Hobsons Bay City Council v Viking[9] notwithstanding that his Honour’s analysis was in the context of an appeal to this court from a magistrate’s cost award in a criminal proceeding. The principles are apposite in the present circumstances. The fundamental question raised in that case, as on this application, is whether it was open to the primary judge to exercise the discretion as he did.
[9][2010] VSC 386.
The general principles governing appeals from the exercise of discretion were expressed by Kitto J in Australian Coal and Shale Employees’ Federation v The Commonwealth as follows:[10]
... the true principle limiting the manner in which appellate jurisdiction is exercised in respect of decisions involving discretionary judgment is that there is a strong presumption in favour of the correctness of the decision appealed from, and that that decision should therefore be affirmed unless the court of appeal is satisfied that it is clearly wrong. A degree of satisfaction sufficient to overcome the strength of the presumption may exist where there has been an error which consists in acting upon a wrong principle, or giving weight to extraneous or irrelevant matters, or failing to give weight or sufficient weight to relevant considerations, or making a mistake as to the facts. Again, the nature of the error may not be discoverable, but even so it is sufficient that the result is so unreasonable or plainly unjust that the appellate court may infer that there has been a failure properly to exercise the discretion which the law reposes in the court of first instance.
[10](1953) 94 CLR 621, 627 (citations omitted).
In Urban No 1 Co-operative Society v Kilavus & Anor,[11] Hedigan J observed that in cases involving the review of discretionary judgments there is a strong presumption in favour of the correctness of the decision appealed from and the general rule is that the decision should be affirmed unless the court of review is satisfied that it is clearly wrong.
[11][1993] 2 VR 201, 211.
In Kenyon v Driessen,[12] Ashley J (as he then was) observed:
It is true that an exercise of discretion is not to be tested by an appeal court asking itself whether it would have exercised the discretion in the same or a different way to the way in which it was exercised in fact. On the other hand, the appeal court, before it interferes with an exercise of discretion, must be satisfied that the decision was clearly wrong. In my opinion the correct approach is that in considering that question an appeal court is not constrained to hold that an exercise of discretion was wrong only by reason that weight was given to some irrelevant consideration, or by reason only of complaint that insufficient weight was given to some relevant consideration. It may be, despite such matters, that the decision was very evidently supportable by pertinent grounds relied upon by the decision-maker.
[12]Kenyon v Driessen (Unreported, Supreme Court of Victoria, Ashley J, 6 October 1994); cited by Osborn J in Hobsons Bay City Council v Viking, [16]. .
Review of a discretionary decision on a matter of practice and procedure must fail unless it can be demonstrated that the decision maker:[13]
[13]Micallef v ICI Australia Operations Pty Ltd & Anor [2001] NSWCA 274, [45] (Heydon JA, Sheller JA and Studdert AJA agreeing).
(a) made an error of legal principle;
(b) made a material error of fact;
(c) took into account some irrelevant matter;
(d) failed to take into account, or gave insufficient weight to, some relevant matter; or
(e) arrived at a result so unreasonable or unjust as to suggest that one of the foregoing categories of error had occurred, even though the error in question did not explicitly appear on the face of the reasoning.
The plaintiff in an appeal on questions of law must demonstrate not only that an error of law occurred, but that it was a vitiating error.[14] This Court is not entitled to interfere with a decision unless it is satisfied that there was, in fact, a vitiating error of law.[15]
[14]Portland Properties Pty Ltd v Melbourne & Metropolitan Board of Works (1971) 38 LGRA 6, 18 and 22.
[15]Ibid, 18 (Smith J); 22 (Adam J).
Submissions
The plaintiff filed three versions of his affidavit in support of the application. However, he relied only on the third version of it. Much of each affidavit was objectionable, being either irrelevant or amounting to scandalous allegations against members of the profession and judicial officers for which there was no identifiable basis. Other aspects of the affidavit were submissions. The only proper approach, having regard to the size of the task of sorting the wheat from the chaff, was to strike out the entire affidavit. However, having regard to the plaintiff’s want of legal assistance and the nature of the defendant’s objections, I have confined my consideration of the plaintiff’s third affidavit to the paragraphs that address the issues in this application and the plaintiff’s submissions in respect of those issues, but nothing more.
In summary, the plaintiff made the following submissions.
(a) The plaintiff’s first, and central, submission was that Ginanne J ruled on 12 June 2015 that he should receive the manual immediately, and in its entirety, to assist in the preparation of his appeal against the traffic offence conviction. He submitted that the County Court judge was either not aware of this ruling because he had not seen the transcript of the Supreme Court proceeding, or had not followed Ginnane J’s orders properly.
(b) Secondly, the plaintiff submitted that Judge Hannan had earlier ruled that Ginnane J had ordered that the complete manual be released to him for his inspection, and that Judge Hannan’s ruling impermissibly conflicted with that of the primary judge.
(c) Thirdly, the plaintiff contended that the primary judge failed to listen to his submissions and that he was denied a fair hearing.
(d) Fourthly, the plaintiff submitted that the primary judge wrongly considered the defendant’s public interest immunity arguments in favour of non-disclosure of the entire manual, being arguments which had earlier been put to and ruled on in the plaintiff’s favour by Ginanne J.[16]
[16]The public interest immunity arguments were not pursued before the primary judge or on this application and I need say no more on them.
(e) Fifthly, the plaintiff submitted that I ought look at the evidence regarding his appeal against his conviction. His affidavit made clear that a similar submission was made to Ginnane J to establish a legitimate forensic purpose for his subpoena. This evidence was irrelevant to anything this court has to decide on the review of the primary decision.
(f) Sixthly, the plaintiff submitted that the defendant had acted fraudulently, cheating the public regarding available evidence to substantiate the operation of red light cameras. This submission was baseless and irrelevant, amounting to nothing more than scandalously improper assertion.
(g) Finally, as already noted, the plaintiff requested that the rejection of the other two subpoenas seeking production of camera test records be reconsidered.
The defendant submitted that the primary judge had, according to law, properly exercised his discretion as to what further parts of the manual fell within the legitimate forensic purpose identified in applying the ruling of Ginnane J. The primary judge considered Ginnane J’s reasons and the parties submissions and then examined each and every page of the manual produced to the court to ascertain whether further disclosure of material was required. It was submitted that no error was disclosed in the transcript or reasons.
Conclusion
It is well established that the law will permit interference with an exercise of the direction, such as that which fell to the primary judge on the remittal of the plaintiff’s subpoena, in only very limited circumstances as set out above.[17] As Osborn J stated in Hobsons Bay City Council v Viking:[18]
In order to succeed in an appeal of this type the appellant must satisfy the Court that the Magistrate’s decision was vitiated by reason of the matters to which he or she had regard, or that the decision was simply not open to him or her.
It is immaterial that this court could conclude that it might have exercised the discretion differently if the discretion had been conferred on it in the first instance.
[17]See also House v R (1936) 55 CLR 499, 504-505; Lovell v Lovell (1950) 81 CLR 513, 518-519 and 532-533; Australian Coal and Shale Employees’ Federation v The Commonwealth (1953) 94 CLR 621, 627.
[18][2010] VSC 386, [42].
I am unable to identify any error in the approach taken by the primary judge, who had the relevant documents before him, including the manual and the order and reasons of Ginnane J. Although repeatedly pressed by the plaintiff, the fact that the primary judge did not have regard to the transcript of the hearing at which Ginnane J delivered judgment was irrelevant. This is because the plaintiff fundamentally misunderstands that, firstly, the court acts by making judgments and that it is the authenticated judgment that constitutes the decision amenable to judicial review in this proceeding. It is the formal order of the court, and not any snippet of transcript that constitutes the court’s judgment, especially transcript of proceedings after reasons for judgment are pronounced. The words used by his Honour when explaining his decision were spoken in an attempt to assist the plaintiff to understand the procedure that would follow now that judgment had been pronounced. The primary judge would have fallen into error had he preferred that statement to the authenticated order and the published reasons.
The plaintiff has not substantiated any alleged error of law on the part of the primary judge. The judge’s approach to his task was entirely proper. The judge was clearly satisfied upon examining the full manual that, apart from the few sections identified, there was no further material within it that met the legitimate forensic purpose identified by Ginanne J. The judge did all that he was required to do.
I do not accept the plaintiff’s general submission that he was not given a ‘fair go’. I have reviewed the transcript of the hearing before the primary judge in its entirety and considered the plaintiff’s additional submissions in relation to it. While it appears that the primary judge may have found the hearing somewhat trying due to the plaintiff’s lack of respect and constant interruptions, there was no unfairness to the plaintiff discernible in the transcript as a consequence.
The manner in which the hearing proceeded, including the plaintiff’s constant interruptions and the judge’s response to them could only be relevant on questions of fairness if pertinent to the judge’s task. The plaintiff undoubtedly feels that he was denied the opportunity to make fulsome submissions, however his feelings were based on a clear misunderstanding of the purpose of the hearing and of the hearings that preceded it. The plaintiff exhibited a firm belief in his entitlement to the entire manual irrespective of his lawful rights to the extent that he refused to listen to attempts to explain procedures and principles to him in order to assist him, whether that be by the primary judge or by me. There is no basis to consider that he was treated unfairly in all of the circumstances.
The plaintiff is understandably unhappy with a decision which has gone against him. Other minds may, or may not, have reached a different conclusion. That possibility is inevitable where the decision is discretionary, and is not of itself a ground for interfering with it. No specific error has been established and the circumstances looked at in their totality, do not suggest error by the primary judge.
The originating motion will be dismissed.
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