Celsius Fire Services Pty Ltd v Magistrates' Court of Victoria
[2019] VSC 835
•19 December 2019
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S ECI 2018 02976
| CELSIUS FIRE SERVICES PTY LTD (ACN 126 595 060) | Plaintiff |
| v | |
| THE MAGISTRATES’ COURT OF VICTORIA | First Defendant |
| – and – | |
| DOMAIN AGED CARE (SERVICES) PTY LTD (ACN 114 145 578) | Second Defendant |
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JUDGE: | Almond J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 24 October 2019 |
DATE OF JUDGMENT: | 19 December 2019 |
CASE MAY BE CITED AS: | Celsius Fire Services Pty Ltd v Magistrates’ Court of Victoria & anor |
MEDIUM NEUTRAL CITATION: | [2019] VSC 835 |
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ADMINISTRATIVE LAW – Judicial review – Appeal from a decision of the Magistrates’ Court – Whether a ruling was made by the Magistrate – Whether error of law by failure to give adequate reasons – Whether denial of procedural fairness – Availability of certiorari.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr A T Strahan QC with Ms C Mintz | Henry William Lawyers Pty Ltd Victorian Town Agents: Slocombe Brand Lawyers |
| For the Second Defendant | Mr J Ruskin QC with Mr P Barry | K&L Gates |
HIS HONOUR:
Celsius Fire Services Pty Ltd (‘Celsius’) conducts the business of providing fire safety system maintenance services. Through a related entity, Domain Aged Care (Services) Pty Ltd (‘Domain’) operates an aged care centre. Celsius provides fire safety systems maintenance at the aged care centre. While Celsius was carrying out fire maintenance services a fire broke out at the aged care centre.
Subsequently, Celsius was charged by the Victorian WorkCover Authority with an alleged breach of the Occupational Health and Safety Act 2004 (Vic) whereby it is alleged that it impaired the functioning of the fire safety system at the aged care centre while carrying out maintenance services.
On 20 December 2017, Celsius issued a subpoena addressed to Domain which sought production of the documents relating to fire systems and emergency procedures, policies and manuals, emergency and fire warden training records, documents relating to notification of impairment of the fire system, maintenance and testing of the system and records of resident numbers at the aged care facility at the relevant time.[1]
[1]Affidavit of Lisa Anne Burton sworn 17 December 2018 [7]; Exhibit LAB–2.
On 21 February 2018, Domain filed and served a summons, together with an affidavit in support, addressed to Celsius seeking orders that the subpoena be set aside.[2]
[2]CB 29–39.
On 8 March 2018, the parties were ordered to file written submissions in relation to the application to set aside the subpoena.[3] Pursuant to those orders the parties filed and served written submissions.[4]
[3]Affidavit of Lisa Anne Burton [9].
[4]Celsius submissions dated 29 March 2018; Exhibit LAB–4 to the Burton affidavit; Domain submissions dated 19 April 2018, Exhibit LAB–5 to the Burton affidavit; Celsius submissions in reply dated 26 April 2018, Exhibit LAB–6 to the Burton affidavit.
The application was listed for a special mention in the Magistrates’ Court on 14 June 2018. On that day the matter came on before a Magistrate. Both parties were represented by counsel. The parties and the Magistrate had the following exchange:
MR SHUME: We have complied with the directions and it’s really a matter of when we left here last time the Magistrate, subject to my friend agreeing, as I understand it was either going to be a position that somebody would read the submissions and deal with it or might have read the submissions and taken the view that they would set it down for further submissions.
MAGISTRATE: I’ve read the submissions there was orders from Mr Burke that there be submissions, a response and then a response to the response for want of a better expression, has anything been left out of those submissions?
MR SHUME: From my perspective, Your Honour, no.
MR BARRY: Um, no Your Honour my instructions are to briefly be heard on the matter, that there is two parts as it were of course the documents and if that’s unsuccessful the argument on the privilege point. My instructors filed an affidavit the other day on that, but nevertheless my instructions …
MAGISTRATE: Is everything in the papers?
MR BARRY: On or about.
MAGISTRATE: Mr Shume I don’t see any legitimate forensic purpose. I think it is a fishing expedition and I, at this stage would be inclined to reject the subpoena argument and set the matter down for a Committal Hearing.
MR SHUME: In Your Honour’s hands.
MAGISTRATE: U, I have committed … that’s why I asked the question if there’s been nothing left out of the written submissions and you’re both indicating that there’s not, I don’t see any legitimate forensic purpose and any available defences being on the cards, as the test requires, and on that basis I would rule it out.
MR SHUME: We’re in Your Honour’s hands.
MAGISTRATE: Now that brings us to and this is where we will need the Authority; the matter is being estimated at a 10 day Committal.
MR SHUME: May Your Honour excuse me for one moment.
MR BARRY: May I address Your Honour on one brief point on the subpoena just very briefly as to the matter of the costs, is that something that Your Honour would like set down separately or even I am happy to be in Your Honour’s hands.
MAGISTRATE: I will deal with that in a moment.
…
MR BARRY: Domain’s not a party to the prosecution, we’re not a co-accused. We’re simply here for the subpoena matter. Perhaps I’d ask Your Honour to make the most necessary orders in relation to that. We don’t need to be here for that, as I understand it.
MAGISTRATE: I’m going to stand the whole … so, you’re seeking to be excused and you just want to argue the issue of costs?
MR BARRY: That’s right, Your Honour. It occurred to me that it’s unusual, perhaps … it occurred to me I’ve not had time to … I wasn’t anticipating it would progress the way it was today. I haven’t had time, then, to prepare any submissions on costs. Perhaps if … I don’t know what my learned friend has say [sic] to this, but the orders are made in relation to the subpoena application and I’m happy, even, just to file a brief one or two pages, you know, two or three … in two or three weeks’ time or so, in relation to costs. Just to obviate the need for Court to actually anything [sic] and save time.
MAGISTRATE: What about if I made an order that … well, what about if the issue of costs was reserved, there can be some discussion between the parties, and if there’s failure to agree, then it can be … on the return date, it can be revisited?
MR SHUME: I’m comfortable with that.
MR BARRY: Yes, is Your Honour minded today to make the orders in relation to the strike out application?
MAGISTRATE: Um, yep.
…
MAGISTRATE: I don’t see any legitimate forensic purpose. I- I – I think it is a fishing expedition and I-I at this stage would be inclined to… reject the subpoena argument and set the matter down for a committal hearing…
MR SHUME: In Your Honour’s hands.
MAGISTRATE: I – I don’t see any legitimate forensic purpose… and any available defences being on the cards, as the test requires… and on that basis… I would – I would rule the … rule it out.’
MR SHUME: We’re in Your Honour’s hands.
No agreement was reached on the costs of Domain’s summons. The Magistrate adjourned the WorkCover Authority summons for the alleged breach of the Occupational Health and Safety Act 2004 (Vic) to 18 September 2019 for a committal hearing[5] and adjourned Domain’s summons to 9.15am on 20 August 2018 at the Latrobe Valley Magistrates’ Court.[6]
[5]Burton [14].LAB -1.
[6]Exhibit LAB–7 to the Burton affidavit; CB 76.
On 20 August 2018, on the return of Domain’s summons, the following exchange took place between the Magistrate and counsel for Celsius (omitting formalities):
MAGISTRATE: …This matter was before me, um, on the last occasion, and both of you appeared?
MR SHUME: That’s correct.
MAGISTRATE: Um, the prosecution were represented. Um, I did make an order, verbally, about – in relation to the subpoena. There seems to be some misapprehension about the – um, that – uh, in the correspondence that’s been sent to the Court. And, I did say that the matter was adjourned for a special hearing today, on the basis that, if the parties could not agree in relation to costs, then it could come back to Court on that basis. Obviously, there’s been no agreement, and I’m not going to entertainment any submissions today. I’m referring the matter to the Costs Court, which is the appropriate venue for the lack of agreement, in relation to the costs in the matter now.
MR SHUME: Before Your Honour does that, could we make an application? I–I–I understand what Your Honour’s doing –
MAGISTRATE: I – I’ve ruled the subpoena – on the subpoena. I did that last occasion. What – what I’m now doing is referred the matter to the Costs Court.
MR SHUME: But could I just make a very short submission, your Honour, in relation to it? Since we were here, on the last occasion, um, further information has come –
MAGISTRATE: I’m not interested. I’m sorry. The reality is, I ruled on the subpoena as it was at that time. A decision was made. Any new material is irrelevant. You can make another application or file another subpoena. But I’ve already ruled on the subpoena that was, uh, issued.
MR SHUME: I–I–I don’t want to be quibbling with Your Honour, but the only – the only thing I’d say is that the subpoena is an interlocutory matter, and it being an interlocutory matter, we would have the right –
MAGISTRATE: But I ruled. And, I said what I said, and I ruled on the last occasion that ‘but for the issue of costs’. There’s been no agreement and the appropriate venue is now the Costs Court.
MR SHUME: Understand.[7]
[7]CB 149-150.
The following issues have arisen:
(a)Did the Magistrate:
(i)make a ruling and/or an order setting aside the subpoena on 14 June 2018?
(ii)adjourn Domain’s summons on the merits of setting aside the subpoena and the issue of costs or solely on the issue of costs?
(iii)make an error of law by failing to give adequate reasons (on 14 June 2018, 20 August 2018 and 24 October 2018)?
(iv)deny Celsius procedural fairness by refusing to allow Celsius to make further submissions on the merits of the setting aside application on 20 August 2018 and on 24 October 2018?
(b)Did Celsius by its counsel acquiesce by failing to take issue with the Magistrate on 14 June 2018 at the time the ruling was made?
Submissions of the parties
Celsius submits that:
(i) on 14 June 2018, the Magistrate indicated a provisional disposition but did not make any order setting aside the subpoena and that the only order made at the hearing was to adjourn the subpoena application to 20 August 2018;
(ii) when the matter was relisted on 20 August 2018, Celsius sought to be heard in relation to new material made available to the prosecutor that bore upon the relevance of the documents sought pursuant to the subpoena; that this was in substance an application by Celsius to rely on further evidence and make further submissions in relation to the subpoena application;
(iii) when dealing with that application on 20 August 2018, the Magistrate misdirected himself and proceeded on the wrong assumption that the subpoena application had already been determined and that his jurisdiction in relation to the subpoena application was spent, stating he was ‘not interested’ and that he had already ruled on the subpoena;
(iv) these statements evidence an error by the Magistrate as to the nature of his jurisdiction that on a proper exercise of his jurisdiction he was compelled to consider and determine Celsius’ application to make further submissions and rely on further material;[8]
[8]Amended submissions of the plaintiff [7] and [8].
(v) the Magistrate failed to give adequate reasons for his:
A. decision to set aside the subpoena (on 14 June 2018);
B. refusal to allow Celsius to rely on further material (on 20 August 2018); and
C. decision to award costs against Celsius (on 24 October 2018).
Domain submits that:
(vi) on 14 June the Magistrate made an order or but not a formal order on the first aspect of the subpoena application, namely the issue of whether the subpoena should be set aside and adjourned the second aspect, being the question of costs of the application;
(vii) the Magistrate did not fail to exercise jurisdiction to hear the application on 20 August 2018 to rely on further material as the Magistrate had already heard and determined the subpoena application on the material before him at the relevant time;
(viii) the Magistrate refused Celsius’ application to make further submissions and rely on further material but was entitled to and did rule that he was not going to hear any further argument on the first aspect of the subpoena application because his ruling on 14 June setting aside the subpoena had effect from that date;[9]
[9]Domain submissions [13].
(ix)the Magistrate did not deny the existence of jurisdiction, but ruled he would not hear further evidence having regard to his previous determination of the issue concerning the validity of the subpoena;[10]
[10]Domain submissions [14].
(x) Celsius had no automatic right to be heard by the Magistrate on 20 August 2018 in relation to the setting aside of the subpoena the Magistrate having earlier made a ruling on that issue on 14 June 2018;[11]
[11]Domain submissions [16].
(xi)The Magistrate did not fail to provide adequate reasons for his decision to set aside the subpoena, for his refusal to hear the application by Celsius to rely on further submissions, or for the decision to award costs; and
(xii) Celsius effectively acquiesced in the Magistrate determining the matter in the way he did.
Did the Magistrate make a ruling setting aside the subpoena?
For present purposes, it is necessary to determine whether there was a ruling on the application to set aside the subpoena and if so, whether the ruling constitutes the pronouncement of an order.
In his ‘reasons’, the Magistrate indicates that Celsius had not established there was a legitimate forensic purpose for which access to documents was sought nor that it was ‘on the cards’ that the subpoenaed documents would materially assist its defence with the prosecution and that he had decided that he would ‘rule it out’. In context, I take this to mean that he would ‘rule the subpoena out’.
There was some argument about the Magistrate’s use of the word ‘would’. I accept the word ‘would’ is commonly used by judges (and for that matter magistrates) when making rulings or orders.[12] But common usage does not necessarily result in common meaning. Context is critical. Domain relies on several appellate decisions to support the proposition that the word ‘would‘ is commonly used by judges to indicate a final decision and not just a provisional view.[13]
[12]Assad v Eliana Construction and Developing Group Pty Ltd [2015] VSCA 53 [11]; Easwaralingam v DPP & Ors [2010] VSCA 353 [44]; Franklin v Ubaldi Foods Pty Ltd [2005] VSCA 317 [1]; Hingst v Construction Engineering (Aust) Pty Ltd [2019] VSCA 67 [6].
[13]Domain also refers to a helpful division in O’Grady v Magistrates’ Court [2016] VSC 156 [52]-[53] Mukhtar AsJ.
When used by a judge in an appellate setting, a statement to the effect ‘I would refuse relief’ will likely reflect that particular judge’s opinion, allowing the other judges on the appellate bench to separately express their opinions. Such statements do not necessarily constitute a final ruling of the Court; indeed they may be the expression of a dissenting opinion. On the other hand, when used by a single judge after hearing an application, such a statement may constitute a final ruling of the Court.
The exchange between counsel and the Magistrate on 14 June 2018 indicates that the Magistrate had ruled in favour of Domain.
In my view, any residual doubt which may have remained after the Magistrate said ‘… at this stage [he] would be inclined to … reject the subpoena argument’ is dispelled by his later statement, ‘I don’t see any legitimate forensic purpose and any available defences being on the cards as the test requires … and on that basis … I would rule the – rule it out’.
In this case I am satisfied that a decision was made by the Magistrate, rather than an indication of a provisional disposition notwithstanding the use of the word ‘would’. Although I am satisfied that the Magistrate made a decision on the merits of the application, I am not satisfied that he gave effect to his ruling by pronouncing an order despite requests having been made for an appropriate order.
Domain requested an order as follows:
MR BARRY: Domain is not party to the prosecution, we’re not a co-accused. We’re simply here in relation to the subpoena matter. Perhaps I’d ask your Honour to make the most necessary orders in relation to that. We don’t need to be here for that, as I understand it.
MAGISTRATE: I am going to stand the whole … so you’re seeking to be excused and you just want to argue the issue of costs?
Later, after some discussion about costs, including reserving costs, to enable the parties to have a discussion on the issue of costs, there was a further exchange regarding the making of an order:
MR BARRY: Is your Honour minded today to make the orders in relation to the strike out application?
MAGISTRATE: Yep.
This exchange reveals that no order had been made at the time giving effect to the ruling, although the Magistrate indicated that he intended to make an order. As events transpired, instead of making an order setting aside the subpoena and adjourning the question of costs, the Magistrate made an order adjourning the summons to a future fixed date, clearly with a view to allowing argument about costs if the parties were unable to agree upon costs, By so doing, the Magistrate either overlooked or postponed making any substantive order on the merits.
In my view, a careful reading of the transcript reveals that the Magistrate ruled in favour of Domain, but did not implement that ruling by pronouncing an order setting aside the subpoena, even though he indicated that he intended to do so.[14] The fact that the Magistrate made no order setting aside the subpoena means that he did not, in form or in substance, finally dispose of the rights and liabilities of the parties on the substantive question of setting aside. It follows that he was free to depart from his ruling if, on later consideration, he decided to change his mind. Though he had made a decision, he was not bound with respect to the order he might ultimately pronounce.[15]
[14]CB 143.
[15]Moorabbin Transit Pty Ltd v Bekhit [2016] VSCA 70, [49]-[51] in a different context, but with the same principles applicable. See also The Commonwealth v Mullane (1961) 106 CLR 166, 169.
Ultimately, the Magistrate adjourned the summons for a period of two months. This was later documented by a formal order to that effect.[16]
[16]CB 76.
The purpose of the adjournment was to enable the parties to further address the issue of costs in the event they were unable to agree on costs. This is plain from the following statements made by the Magistrate:
MAGISTRATE: Mr Shume I’m going to adjourn the subpoena matter for two months from today.
MR SHUME: Thank you.
MAGISTRATE: That will allow the parties to have some discussion in relation to costs. If it’s agreed, obviously, this can just be vacated without any need for any appearance, and if not, well then, the parties will have to come back …[17]
[17]CB 146.
Adequacy of reasons
Celsius submits that the Magistrate failed to provide adequate reasons, first, with respect to his ruling of 14 June 2018; second, with respect to his decision to refuse to entertain Celsius’ application to rely on further material; and third, with respect to his decision to award costs against Celsius on the summons.
In Hunter v TAC & anor,[18] Nettle J (with whom Batt and Vincent JJA agreed) stated:
[W]hile the extent of the reasons while the extent of the reasons will depend upon the circumstances of the case, the reasons should deal with the substantial points which have been raised; include findings on material questions of fact; refer to the evidence or other material upon which those finding are based; and provide an intelligible explanation of the process of reasoning that has led the judge from the evidence to the findings and from the findings to the ultimate conclusion.[19]
[18][2005] VSCA 1.
[19]Ibid, [21] (citations omitted).
Hunter was cited with approval in Assad v Eliana Construction & Developing Group Pty Ltd,[20] in which the Court of Appeal (Redlich, Kyrou and McLeish JJA) held that a judge is not required to set out every detail of the process of the judge’s reasoning but –
… must expose the reasons for resolving points critical to the contest between the parties. This is an indispensable requirement. The parties must be able to understand the basis of the judge’s decision and the extent to which their arguments have been understood and accepted. The losing party is entitled, at a bare minimum, to an explanation why their case has not been preferred.[21]
[20][2015] VSCA 53.
[21]Ibid, [34].
In Lexa v Transport Accident Commission (Kyrou, Kaye and Emerton JJA) observed that the adequacy of reasons must depend on the issues agitated in the hearing and the manner in which the case is presented; ‘that in an appropriate case, the judge’s path of reasoning may be sufficiently disclosed by a combination of what is expressly stated in the reasons and inferences that may be drawn from the judge’s recitation of the material’.[22]
[22][2019] VSCA 123, [73].
In this case, Domain submits that the path of reasoning is exposed from what the Magistrate said, the context of the case and inference; that three central reasons were given against a background of having read detailed submissions which dealt with these concepts.
In my view, the fact that there were lengthy and detailed submissions highlights the deficiencies evident from the Magistrate’s approach. Celsius served written submissions (11 pages).[23] Domain served written submissions (11 pages).[24] Celsius replied with further written submissions (6 pages).[25]
[23]CB 41-51.
[24]CB 54-65.
[25]CB 68-74.
There were, therefore, in total at least 28 pages of detailed written submissions, including submissions which dealt specifically with the categories of documents being pursued.[26]
[26]Total page count omits cover sheets. There were 12 categories of documents Celsius did not press categories 4 and 11. Exhibit LAB4 Celsius Outline of Submissions, [27].
The Magistrate ruled against Celsius in global terms, to the effect that he thought the subpoena was a fishing expedition and that he did not see any legitimate forensic purpose or any available defences being ‘on the cards’.
There was no recitation of the material or specific reference to any particular category. The Magistrate identifies the correct principles, but it is not possible to discern a path of reasoning which demonstrates how the principles apply to particular categories. In my view, the losing party could not be confident that the Magistrate had applied his mind to each category. It is not possible to evaluate the reasoning with respect to any particular category. The ‘reasons’ are so general that they lack transparency. It is not possible to say whether the Magistrate’s reasoning is correct or incorrect. The Magistrate does make passing reference to the respective submissions of the parties, but only for the purpose of ascertaining whether the written submissions contained all of the submissions which the parties wished to make.
Failure to adequately expose a path of reasoning is an error of law.[27] In this case, the error of law is on the face of the record, as it is apparent from the ‘reasons’ (or lack of reasons) as recorded and transcribed. Section 10 of the Administrative Law Act 1978 (Vic) provides that:
The “record” includes a court’s reasons whether the application for judicial review is brought under the Administrative Law Act or under O 56.[28]
[27]Lexa v Transport Accident Commission [2019] VSCA 123, [72].
[28]See Easwaralingam v Director of Public Prosecutions [2010] VSCA 353, [21]; cf Craig v State of South Australia (1995) 184 CLR 163, 181; Kirk v Industrial Court (NSW) (2010) 239 CLR 531, 567-8, 575-8.
As a consequence of the error of law, the discretion with regard to costs is enlivened. In my view, the ruling made on 14 June 2018 must be quashed and the order made in relation to costs must be set aside.
Was Celsius denied procedural fairness?
Celsius submits that on 20 August 2018 when the matter was relisted, Celsius sought to rely on further evidence and make further submissions in relation to the subpoena application and that when dealing with this application, the Magistrate misdirected himself by proceeding on the wrong assumption that the subpoena application had already been determined and that his jurisdiction in relation to the subpoena application was spent. Celsius submits that the Magistrate was compelled to consider and determine the Celsius’ application to make further submissions and rely on further materials.
Domain agrees that the Magistrate refused Celsius’ application to make further submissions on the merits and to rely on further material but submits he was entitled to do so having regard to his ruling on 14 June 2018; that the Magistrate did not deny the existence of jurisdiction but ruled he would not hear further evidence having regard to his previous disposition of the subpoena application.
It is instructive to refer again to the transcript. On the return date of 20 August 2018, the matter came on again before the Magistrate. Both parties were represented by counsel:
MAGISTRATE: This matter was before me, um, on the last occasion, and both of you appeared?
MR SHUME: That’s correct.
MAGISTRATE: Um, the prosecution were represented. I did make an Order verbally about … in relation to the subpoena and there seems to be some misapprehension about the … that … in the correspondence that’s been sent to the Court and I did say that the matter was adjourned for a special hearing today, on the basis that, if the parties could not agree in relation to costs, then it could come back to Court on that basis. Obviously, there’s been no agreement, and I’m not going to entertain any submissions today. I’m referring the matter to the Costs Court which is the appropriate venue for the lack of agreement in relation to the costs in the matter now.
MR SHUME: Before Your Honour does that, could we make an application? … I understand what Your Honour is doing –
MAGISTRATE: I’ve ruled the subpoena … on the subpoena. I did that on the last occasion. What I’m now doing is referring the matter to the Costs Court.
MR SHUME: Could I just make a very short submission your Honour, in relation to it? Since we were here on the last occasion, further information has come …
MAGISTRATE: I’m not interested. I’m sorry. The reality is, I ruled on the subpoena as it was at that time. A decision was made. Any new material is irrelevant. You can make another application or file another subpoena but I’ve already ruled on the subpoena that was issued.
MR SHUME: I don’t want to be quibbling with Your Honour but the only thing I’d say is that the subpoena is an interlocutory matter and it being an interlocutory matter we would have …
MAGISTRATE: And I ruled and I said what I said and I ruled on the last occasion … but for the issue of costs. There’s been no agreement and the appropriate venue is now the Costs Court.
MR SHUME: Understand.
It is clear from the transcript that the Magistrate decided that he would not entertain the further application on the merits of setting aside the subpoena. I am not satisfied that he did so on the wrong assumption that his jurisdiction in relation to the subpoena application was spent. The statement that he had made an ‘order verbally’ in relation to the subpoena was, in my view, incorrect. Nothing turns on this as the Magistrate later correctly characterises the position when he states, ‘The reality is, I ruled on the subpoena as it was at that time. A decision was made …’.
It follows that I do not accept that the Magistrate misdirected himself. He decided not to allow further argument on the matter, as he was entitled to do, provided he exercised his discretion judicially.
The real question is whether he accorded procedural fairness to Celsius in addressing Celsius’ submissions. Counsel for Celsius asked, ‘Could we make an application?’, to which the Magistrate responded that he had ruled on the subpoena and was referring the matter to the Costs Court. Counsel asked whether he could make ‘a very short submission, noting that further information had come …’ (presumably, ‘to light’). The Magistrate said, ‘I’m not interested’, cutting counsel short. In so doing, the Magistrate resolutely refused to hear even a brief outline as to the subject matter of the application or the content of counsel’s submission, denying Celsius at least an opportunity to postpone the determination of costs until the content of the further information had been ascertained.
This does not mean that the Magistrate should have allowed further submissions on the merits or should have adjourned or postponed the consideration of costs until a later date, but it does, in my view, mean that he should have allowed counsel to develop the submission briefly once counsel had brought to his attention the issue of further information if only to ensure that the further information was not material to the proper disposition of the matter.
Celsius, by its senior counsel, submitted that Celsius was refused its application to be heard without any opportunity for a hearing. It was submitted that the Magistrate did not ‘meet any test of an opportunity to be heard’, even allowing for the pressures placed on a busy magistrate. I accept that submission. The remedy of certiorari is available to quash a decision for failure to observe some applicable requirement of procedural fairness.[29] In my view, the Magistrate denied Celsius a proper opportunity to be heard and relief should be granted.
[29]See Craig (1995) 184 CLR 163 at 175-6.
Acquiesce
In my view, counsel for Celsius did not acquiesce to the Magistrate having made a ruling without giving adequate reasons. When counsel said ‘We’re in your Honour’s hands’ he was extending a courtesy to the Magistrate and acknowledging the Magistrate’s statements, but this should not be taken as acquiescence to the failure of the Magistrate to provide reasons. Part of the problem in this case is that, by reason of the language used, reasonable minds could differ on whether the Magistrate was expressing a provisional view or making a ruling. In my view, it would not be appropriate or fair to expect counsel to seek reasons when arguably the Magistrate had only expressed a provisional view (notwithstanding, I have now found that not to be so).
Other matters
There were further matters raised by the parties in argument, notably, deficiency in the reasons given by the Magistrate on 30 August 2018, 24 October 2018 and a further denial of procedural fairness on 24 October 2018. In light of my earlier findings, it is unnecessary to address these matters.
I will address one further matter. Despite conducting its argument on the basis that the Magistrate had made a verbal order and not a written order setting aside the subpoena, Domain submitted, at the end of the hearing apparently as an afterthought, that the Magistrate had made a written order ‘about the subpoena’ by use of the words ‘Application granted’ in the order dated 24 October 2018. When read in conjunction with the summons which was to set aside the subpoena,[30] I am not persuaded that this is so. The order of 24 October 2018 is vague at best. It says nothing about the summons. It is headed ‘Application for Special Hearing’’ and in my view probably relates to the application for costs being granted and the reference of the matter to the Costs Court. The court record is very unsatisfactory but ultimately is of no significance because the order must in any event be set aside in light of the failure to give adequate reasons.
[30]T 105.11-25.
For completeness, I note that in the originating motion Celsius seeks an order that on remitter the parties may rely on further submissions and affidavit material. I do not propose to make an order to this effect. This is a matter which can be raised by the parties if so desired before the relevant magistrate with the conduct of the matter.
Relief
In my view, Celsius should obtain the following relief:
(1)An order in the nature of certiorari quashing the magistrate’s decision of 14 June 2018.
(2)An order setting aside the order of 24 October 2018 that the plaintiff pay the reasonable costs of the second defendant to be assessed by the costs court in default of agreement.
(3)An order remitting the application to set aside the subpoena by summons dated 21 February 2018 to a different magistrate of the Magistrates’ Court of Victoria for determination
I will hear counsel on the appropriate form of orders.
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