Contract Control Services Pty Ltd v Brown (VicRoads)
[2012] VSC 289
•21 June 2012
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S CI 2011 04673
| CONTRACT CONTROL SERVICES PTY LTD | Appellant |
| v | |
| WAYNE BROWN (VIC ROADS) | Respondent |
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JUDGE: | LANSDOWNE AsJ | |
WHERE HELD: | Melbourne | |
DATE OF HEARING AND RULING: | 21 June 2012 | |
DATE OF THESE REASONS: | 29 June 2012 | |
CASE MAY BE CITED AS: | Contract Control Services Pty Ltd v Brown (VicRoads) | |
MEDIUM NEUTRAL CITATION: | [2012] VSC 289 | |
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APPEAL ON A QUESTION OF LAW FROM A CRIMINAL PROCEEDING IN THE MAGISTRATES COURT-whether or not the Supreme Court (Criminal Procedure) Rules 2008 apply-whether an Associate Judge has jurisdiction under those Rules to hear the trial of such appeal-whether the jurisdiction to hear the trial can be referred under Rule 77.05 of the Supreme Court (General Civil Procedure) Rules 2005
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APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr D. Neal SC with Mr D. Colman | Batten Sacks Harvey Bruce |
| For the Respondent | Mr D. Starvaggi | Lindy Pascoe of VicRoads |
HER HONOUR:
This is the trial of an appeal on a question of law from a final order of a Magistrate made in a criminal proceeding. The trial has been referred to me for hearing by Justice Williams pursuant to r 77.05 of the Supreme Court (General Civil Procedure) Rules2005 (“General Civil Procedure Rules”).
The appellant at the commencement of the trial has raised the question as to whether an Associate Judge has the jurisdiction to hear such an appeal even with such a referral. The submission of the appellant is that an Associate Judge does not have jurisdiction to hear the trial because an Associate Judge has no original jurisdiction to do so under the applicable rules, which they contend are the Supreme Court (Criminal Procedure) Rules 2008, and jurisdiction cannot be referred under r77.05 as that referral power does not apply. The respondent agrees with those submissions. I also agree with them for the reasons set out below.
Jurisdiction under the Criminal Procedure Act 2009 and Supreme Court (Criminal Procedure) Rules 2008
The source of power to appeal to the Supreme Court on a question of law in a criminal proceeding in the Magistrates’ Court is s 272 of the Criminal Procedure Act 2009 (“Criminal Procedure Act”). That section does not specify whether or not the appeal must be heard by a Judge – it merely provides that the appeal is to the Supreme Court.
The Supreme Court has made rules in relation to appeals under s 272. Order 3A of the Supreme Court (Criminal Procedure) Rules2008 (“Criminal Procedure Rules”) provides for the commencement of such appeal and the procedure thereafter. Rule 3A.02 provides that an appeal on a question of law is commenced by filing a notice of appeal in the Trial Division. Rule 3A.05 confers power on an Associate Judge to give directions; to determine whether leave to appeal, if required, is given; and to dismiss an appeal in certain limited circumstances. Order 3A is otherwise silent as to whether or not the trial of the appeal must be heard by a Judge or may be heard by an Associate Judge.
Rule 1.04 of the Criminal Procedure Rules specifies the matters to which those Rules apply as follows:
These Rules apply to all matters in the Court whenever commenced-
(a)which relate to the criminal jurisdiction of the Court, whether conferred by an Act or otherwise; and
(b)for which provision relating to the conduct of the matter is made by these Rules (emphasis added).
Both paragraphs of r1.04 are required by its terms to be satisfied for the Criminal Procedure Rules to apply. It was implicit in the submissions of the appellant, with which the respondent agreed, that an appeal under s.272 relates to the criminal jurisdiction of the Court (paragraph (a)). It is certainly a matter for which provision in made by the Criminal Procedure Rules within paragraph (b).
Prior to the commencement of the Criminal Procedure Act appeal on a question of law from a final order in the Magistrates’ Court in a criminal proceeding was provided for by s.92 of the Magistrates’ Court Act 1989. The same rules of the Supreme Court applied to an appeal on a question of law whether the proceeding in the Magistrates’ Court was a civil or a criminal proceeding. Those rules appeared in Part 3 of Order 58 of the General Civil Procedure Rules. Placement in the civil rules could suggest that both types of appeal were considered, at that time, civil proceedings.
As against that, there remains another indication in the General Civil Procedure Rules that appeals on a question of law from criminal proceedings were regarded, even prior to the legislative change effected by the Criminal Procedure Act, as criminal proceedings. Rule 77.02(3)(d) of the General Civil Procedure Rules, which was raised in submissions, provides as follows:
An Associate Judge shall not have authority to hear and determine
…
(d)any criminal proceeding, other than an appeal or an application for leave to appeal under Part 3 of Order 58. (emphasis added)
As discussed above, Part 3 of Order 58 now applies only to appeals or applications for leave to appeal under s 109 of the Magistrates’ Court Act 1989 (which relates to civil proceedings in that Court) or under s 329 of the Children, Youth and Families Act 2005. Two matters emerge from the continuing reference to Part 3 of Order 58 in Rule 77.02(3)(d). First, that continuing reference to criminal proceedings as being included in Part 3 of Order 58 is now outdated given the transfer of the rules in relation to appeals on a question of law in criminal proceedings to the Criminal Procedure Rules. Second, and significantly for the present discussion, the description of such appeals as criminal proceedings supports the view that they properly fall within the first paragraph of r1.04 of the Criminal Procedure Rules.
That the issue is not clear is reflected by the apparent characterisation of appeals on a question of law from criminal proceedings in the Magistrates’ Court as civil proceedings in Practice Note 4 of 2009. That Practice Note preceded the commencement of the Criminal Procedure Act, but anticipated it and assumed that appeals from criminal proceedings would continue in this Court to be civil proceedings.[1] In accordance with that Practice Note, these proceedings were commenced in the Judicial Review and Appeals List which is a civil list, within the Common Law Division, not the Criminal Division of the Court.
[1]See footnote 1 to that Practice Note
Although the matter is not beyond doubt, I consider the better view is that appeals on a question of law arising from a criminal proceeding in the Magistrates’ Court are criminal proceedings. If this were not the case, the placement of the rules in relation to such appeals within the Criminal Procedure Rules would be anomalous. The transfer of the rules implies a deliberate decision was made in that regard, as their content did not otherwise change and the procedure remains the same as for appeals on a question of law from civil proceedings. There are no longer any rules in relation to such appeals in the General Civil Procedure Rules which are (as set out in further detail below) expressed to relate to civil proceedings. Accordingly, I accept the submission that the applicable rules are the Criminal Procedure Rules.
How the Trial Division may be constituted
As set out earlier, r.3A.02 of the Criminal Procedure Rules provides that the appeal is commenced by filing a notice of appeal in the Trial Division. The Constitution Act1975 section 75A(4) provides in relation to the constitution of the Trial Division of the Supreme Court that:
The Trial Division may be constituted by an Associate Judge in the case of a proceeding for which provision is made by an Act or enactment or by rules of court for the Court or the Trial Division to be so constituted.
The Supreme Court Act 1986 (“Supreme Court Act”) provides in s 17(1A) that
The Trial Division constituted by an Associate Judge may hear and determine all matters, whether civil or criminal, not required by or under this Act or any other Act or the Rules to be heard and determined –
(a)by the Court of Appeal; or
(b)by the Trial Division constituted by a Judge of the Court.
Section 17(1A) accordingly contemplates that an Associate Judge may hear a criminal proceeding in the Trial Division provided that that matter is not required by the Supreme Court Act, any other Act or the Rules to be heard and determined by a Judge of the Trial Division. The question thus becomes whether the Supreme Court Act itself, the Criminal Procedure Act, or the Rules require the trial of an appeal on a question of law from a Magistrate in a criminal proceeding to be heard by a Judge, rather than by an Associate Judge.
There is no such requirement in the Criminal Procedure Act. Nor is there elsewhere in the Supreme Court Act. However, Rule 1.16 of the Criminal Procedure Rules provides:
Unless these Rules specifically provide otherwise, any application and the exercise of any powers and authorities in relation to a proceeding or any other matter to which these Rules apply shall be heard and determined by the Trial Division constituted by a Judge of the Court or the Court of Appeal, as the case requires.
Accordingly, the Criminal Procedure Rules require that any proceeding or matter to which they apply shall be heard by a Judge unless the Rules specifically provide otherwise.
As indicated earlier, Order 3A of the Criminal Procedure Rules does otherwise provide in relation to the power of an Associate Judge to give directions, to determine whether leave to appeal, if required, should be given and to dismiss the appeal in certain circumstances. Order 3A does not, however, specifically provide that an Associate Judge may hear the trial of an appeal on referral from a Judge of the Court.
I conclude that under the Criminal Procedure Rules an Associate Judge does not have the original jurisdiction to hear and determine the trial of an appeal on a question of law from a criminal proceeding before a Magistrate.
Power of a Judge to refer a trial to an Associate Judge
The next question is whether a Judge of the Court can confer on an Associate Judge, by referral, the jurisdiction to hear such a trial. A power of an Associate Judge to hear certain matters on referral from a Judge of the Court is contained in Rule 77.05 of the General Civil Procedure Rules. That Rule provides as follows:
(1)If a matter before a Judge of the Court, which matter would not otherwise be within the authority of an Associate Judge, appears to the Judge to be proper for the determination of an Associate Judge, the Judge of the Court, by order, may refer the matter to an Associate Judge.
…
(3)In hearing and determining a matter referred by a Judge of the Court to an Associate Judge, the Associate Judge has the same powers as a Judge of the Court would have in hearing and determining such a matter, subject to any directions in the order referring the matter.
(4)Despite paragraph 1, a Judge of the Court shall not refer to an Associate Judge any matter under Part 2 or Part 2A of the Confiscation Act 1997.
Rule 77.05 is not in terms limited to civil proceedings. The appellant submits, however, that it is clear from Rule 1.05 of the General Civil Procedure Rules that it is so limited. The relevant portions of Rule 1.05 provide:
(1)Subject to this Rule, these Rules apply to every civil proceeding commenced in the Court whether before or after the commencement date.
(2)These Rules do not apply to a civil proceeding to which any other Chapter of the Rules of the Supreme Court applies except as that Chapter provides. (emphasis added)
There is a referral power similar to that contained in Rule 77.05 in Rule 1.12 of the Chapter II Rules, the Supreme Court (Miscellaneous Civil Proceedings) Rules2008 (“Miscellaneous Civil Proceedings Rules”). That Chapter of the Rules provides in Rule 1.06 that “These Rules apply to any proceeding in the Court with respect to which provision is made by these Rules…”. There is no provision made in that Chapter in respect of appeals on a question of law pursuant to s272 of the Criminal Procedure Act. There is no referral power contained within Order 3A of the Criminal Procedure Rules.
Each Chapter of the Rules is distinct
The appellant principally relies on the placement of the applicable rules for appeals pursuant to s.272 of the Criminal Procedure Act in the Criminal Procedure Rules and the express application of the General Civil Procedure Rules to civil proceedings. In my view, however, the structure of the Rules also provides support to the appellant’s position. I consider that from an examination of Rule 1.05 of the General Civil Procedure Rules, Rule 1.04 of the Criminal Procedure Rules and Rule 1.06 of the Miscellaneous Civil Proceedings Rules each of those Chapters of the Rules of the Supreme Court is intended to apply only to those proceedings in respect of which provision is made in that Chapter. Thus the expression “these Rules” used in each of those Chapters is intended to refer to that Chapter, not any other Chapter of the Rules. A Chapter of the Rules may adopt the rules of another Chapter (as is envisaged, for example, by sub rule 1.05(2) of the General Civil Procedure Rules), but specific provision in the adopting Chapter is required.
For example, Rule 1.07 of the Miscellaneous Civil Procedure Rules contains the type of provision envisaged by sub rule 1.05(2) of the General Civil Procedure Rules. It provides as follows:
Except so far as otherwise provided by these Rules or any Act, Chapter I of the Rules of the Supreme Court for the time being in force and the general practice of the Court apply so far as practicable in relation to a proceeding to which these Rules apply.
Similarly, the structure of the Rules does not prevent the Criminal Procedure Rules adopting portions of the rules of another Chapter, including the General Civil Procedure Rules, but specific provision in those Rules i.e. the Criminal Procedure Rules is required. For example, Rules 1.10 and 1.12 of the Criminal Procedure Rules expressly adopt portions of the General Civil Procedure Rules in relation to the content and form of documents and subpoenas. There is, however, no adoption in the Criminal Procedure Rules of r 77.05 of the General Civil Procedure Rules.
For these reasons I accept the submission of the appellant that were an Associate Judge to have the jurisdiction on referral by a Judge of the Court to hear an appeal on a question of law arising under the Criminal Procedure Act, the Criminal Procedure Rules would need to contain a specific authorising provision. There is no such authorising provision in the Criminal Procedure Rules.
Conclusion
In conclusion, I accept the submissions put by the appellant and agreed by the respondent that I have no jurisdiction to determine this appeal, notwithstanding the referral made pursuant to Rule 77.05. The trial will be adjourned for hearing before a Judge of the Court.
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