David Goldberg v Deryck Geoffrey Stocker and County Court of Victoria
[2017] VSCA 126
•2 June 2017
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCI 2016 0140
| DAVID GOLDBERG | Applicant |
| v | |
| DERYCK GEOFFREY STOCKER | First Respondent |
| COUNTY COURT OF VICTORIA | Second Respondent |
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| JUDGES: | OSBORN, BEACH and KAYE JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 2 May 2017 |
| DATE OF JUDGMENT: | 2 June 2017 |
| MEDIUM NEUTRAL CITATION: | [2017] VSCA 126 |
| JUDGMENT APPEALED FROM: | [2016] VSC 503 (J Forrest J) |
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JUDICIAL REVIEW — Application for leave to appeal from decision of Trial Division judge on judicial review of County Court decision dismissing appeal from Magistrates’ Court — Traffic offences — Self-represented litigant not permitted to use the Bar table — Procedural fairness — Whether judge not permitting self-represented litigant to use the Bar table amounted to denial of applicant’s right or a denial of procedural fairness or gave rise to an apprehension of bias — Inherent right of a judge to regulate the proceedings of his or her court — Application for leave to appeal refused.
PRACTICE & PROCEDURE — Application for recusal — Basis unclear — Actual or apprehended bias — Whether applicant entitled to have matter dealt with by judges who had not previously found against him — Manner in which proceedings conducted — No basis for application — Application refused.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | In person | |
| For the First Respondent | Mr P Pickering | John Cain, Solicitor for Public Prosecutions |
OSBORN JA:
BEACH JA:
KAYE JA:
This is an application for leave to appeal against the decision of J Forrest J dismissing an application for judicial review of a decision of Judge Tinney in the County Court. In order to understand the present application it is necessary to set out the background to it in some detail.
On 23 September 2014, the applicant was convicted in the Magistrates’ Court of Victoria at Moorabbin of two traffic offences.
The first offence was one of failing to give his name and address following an accident occasioning property damage in breach of s 61(1)(c) of the Road Safety Act 1986.
The second offence was that as a driver of a vehicle carrying a load, the applicant failed to appropriately secure and fasten that load in breach (as charged) of cl 248 of the Road Safety (Vehicles) Regulations 2009.
The convictions turned in large part on the evidence of a Ms McLeod that as a small white utility vehicle driven by the applicant turned a corner in Moorabbin on 27 May 2014, a refrigerator fell from it and bounced along the road into Ms McLeod’s motor car. Following the accident, the driver shouted at her and asserted there was no damage to her vehicle and that ‘it was too busy to stop here.’ Ms McLeod noted the registration number of the utility vehicle and police enquiries subsequently identified the applicant as the driver.
Following conviction, the applicant was fined an aggregate of $1,500 and suspended from driving a motor vehicle for a period of three months.
He immediately lodged an appeal against sentence on the stated ground that the punishment was excessive.
Such an appeal is an appeal by way of rehearing before the County Court of Victoria.
The matter came on for hearing before Judge Tinney on 5 December 2014. When it came on, the applicant sought to appeal against his conviction.
Because such an appeal was out of time leave was required to institute it pursuant to s 263 of the Criminal Procedure Act 2009.
263 Late notice of appeal deemed to be application for leave to appeal
(1)A notice of appeal filed after the end of the period referred to in section 255(1) or 258 is deemed to be an application for leave to appeal on the grounds stated in the notice.
(2)The County Court or the Supreme Court, as the case requires, may grant leave to appeal under subsection (1) and the appellant may proceed with the appeal if—
(a)the court considers that the failure to file a notice of appeal within the period referred to in section 255(1) or 258 was due to exceptional circumstances; and
(b)the court is satisfied that the respondent’s case would not be materially prejudiced because of the delay.
(3)If the court does not grant leave to appeal under subsection (2), the court must strike out the appeal.
No notice of appeal against conviction was ever filed but Judge Tinney entertained the applicant’s oral application. The applicant told Judge Tinney that the charges against him were a complete fabrication. He asserted that there was no evidence that he was driving at the time of the alleged accident and nor was there any evidence of damage to Ms McLeod’s car. He told Judge Tinney that the charges had been laid against him despite the fact that he was not involved because the Australian Security Intelligence Organisation (‘ASIO’) was persecuting him and because Ms McLeod was related to a former magistrate who had determined a previous proceeding against the applicant.
The applicant told Judge Tinney that he was upset when he came out of court and that he told the clerk at the Magistrates’ Court that he wanted to appeal against conviction and sentence. The clerk prepared a form which he signed and he then went back into court to apply for permission to drive pending the appeal. The applicant said that he then travelled overseas and returned only a few days before the hearing of the appeal before Judge Tinney and was surprised that the appeal was not an appeal against conviction. He stressed that he had been upset at the time he signed the appeal form. He said that he ‘stormed out of the court’.
The prosecutor submitted to Judge Tinney that it should not be accepted that the applicant did not understand the form which he signed. The applicant had previously instituted appeals from the Magistrates’ Court on a number of other occasions. Further, Ms McLeod was now unavailable as a witness because she had left Australia in order to live permanently in the United States. Accordingly, there would be material prejudice to the prosecution if leave was granted to appeal out of time.
The judge gave oral reasons for refusing leave to appeal against conviction. His Honour was not satisfied that the applicant did not understand the form which he signed. He was not satisfied that the failure to file a notice of appeal within the prescribed time was due to exceptional circumstances. In addition, he was not satisfied that the respondent’s case would not be materially prejudiced because of the delay.
Accordingly, Judge Tinney refused to grant leave to appeal against conviction in respect of the offence of failing to give a name and address; but following a concession by the prosecutor that the purported second offence did not exist under the relevant regulations, he extended time to appeal that conviction and set it aside.
The judge substituted a fine of $400 with no licence suspension for the penalty imposed at the Magistrates’ Court.
Despite his substantial success in the County Court, the applicant then instituted proceedings in the Supreme Court for judicial review of Judge Tinney’s decision on some nine grounds.
On an application by the respondent for summary dismissal before Lansdowne AsJ, the applicant also alleged fraud by the clerk of the Magistrates’ Court who had assisted him in the preparation of the notice of appeal to the County Court.
After a detailed consideration of each of these complaints, Lansdowne AsJ dismissed the appellant’s originating motion save for a complaint that the appellant had not received procedural fairness in the County Court because the judge had not permitted him to sit at the Bar table. The appellant filed an amended originating motion which formulated this complaint as follows:
The Honourable Judge Tinney prejudiced the Appellant’s legitimate right and expectations by his unequal treatment. His Honour Judge Tinney bluntly discriminated against the Appellant by refusing to allow him to speak to microphone or to sit before the bar table in order to take notes during the hearing. Such act of discrimination has forced the Appellant to use a court floor as a table which is unacceptable disability and discrimination. Furthermore His Honour during the hearing was whispering and the Appellant could not hear what his Honour was saying. His Honour had made an angry response that the Appellant will not use such words as ‘insist’ or ‘demand’ in his courtroom.
The trial judge’s decision
The applicant’s application for judicial review came on for hearing before J Forrest J on 22 August 2016. His Honour identified the issues before him in the following terms:
(a) is a self-represented litigant entitled to conduct his or her trial from the Bar table; and
(b) is a self-represented litigant denied procedural fairness if he or she is deprived of that opportunity?
As his Honour’s reasons explained, the second question involved both the question whether the applicant was denied a fair opportunity to present his case and the question whether the manner in which the County Court proceeding was conducted gave rise to an issue of apprehended bias against the applicant.
A video recording of the County Court hearing was shown to the Court on the hearing of the application for judicial review. It was also made available to this Court on the hearing of the appeal and we have viewed it in full.
J Forrest J adopted a summary by Lansdowne AsJ of the contents of the video recording and we shall do likewise:
The DVD shows that Mr Goldberg was not seated at the Bar table for any of the hearing. He had seated himself prior to Judge Tinney coming into the court room in the body of the court room, in the first or second row of seats behind the seats at the Bar table. Robed counsel for Mr Stocker was seated at the Bar table.
When Mr Goldberg was first addressed by Judge Tinney Mr Goldberg asked if he could come to ‘the bench’ and his Honour told him to address him ‘from there’. Mr Goldberg did not ask Judge Tinney again in the course of the hearing if he could move to the Bar table, although he did use the Bar table to rest some papers on when directly addressing his Honour. At those times Mr Goldberg stood behind the seat pushed into the Bar table. He did not seek permission to stand in that location, and his Honour did not invite him to do so but did not express any objection.
It is apparent from the DVD that Mr Goldberg had a number of papers that he had on seats either side of his seat in the body of the court room. On one occasion in the course of discussions about sentence Mr Goldberg said that he could not hear what Judge Tinney had said and came to stand behind the Bar table in the location I have described already. He then continued to address Judge Tinney from that location, but had to return to his seat in the body of the court room to get some papers. After Mr Goldberg completed his submissions on sentence he sat down again in the seat he had occupied in the body of the court. He then stayed there for the duration of the hearing.
The video recording was supplemented by a written transcript. J Forrest J made the following findings of fact:
Having watched the whole of the video recording of the appeal in court (with the benefit of both parties making submissions), I am satisfied that:
(a) Mr Goldberg sat in the front row of the public area of the Court.
(b)Mr Goldberg was able to sit and stand as was appropriate. At times, he used the Bar table upon which to place papers.
(c)Mr Goldberg was able to address the Court comprehensively without any inconvenience and to put his arguments as to why he should be granted leave to appeal against conviction.
(d)There was no interference in terms of communication between the judge and Mr Goldberg. Specifically, he did not appear to be inconvenienced by conducting his case from the body of the Court.
(e)Mr Goldberg, although slightly agitated at times, behaved appropriately.
(f)The judge was courteous to Mr Goldberg and only confined him by asking him to address relevant matters.
(g)Mr Goldberg was not inconvenienced in his presentation of his case. His papers were beside him.
Now, on the other hand:
(a)Mr Goldberg sat in the body of the Court whilst robed counsel for Mr Stocker sat at the Bar table closer to the judge.
(b)Counsel addressed the judge as to the circumstances of both the application for leave to appeal and the substantive charges from the Bar table.[1]
[1]Goldberg v Stocker & Anor [2016] VSC 503 [15]–[16] (‘Review Reasons’)
His Honour then considered whether the appellant was entitled to conduct his trial from the Bar table. His Honour held that the appellant had no right as such to conduct his case from the Bar table. It is for the Court to decide whether a self-represented litigant should have access to the Bar table in all the circumstances of the case. The appellant challenges this conclusion on the basis that he has been permitted to sit at the Bar table in proceedings before this Court and the High Court.
J Forrest J next considered whether there had been a denial of procedural fairness to the applicant because the procedure adopted inhibited the fair presentation of his case.
His Honour’s reasons emphasised that fairness is not an abstract concept[2] and that a judge has a duty to ensure a fair trial by giving self-represented litigants due assistance.[3]
[2]Ibid [25] citing Re Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) 214 CLR 1, 13–14 [37].
[3]Ibid [27] citing Tomasevic v Travaglini (2007) 17 VR 100, 129–30 [138]-[142].
His Honour recorded the appellant’s written submissions in respect of this issue:
His Honour Judge M Tinney denied the appellant procedural fairness by not allowing the access to the Bar table or to the microphone thereby by refusing the appellant to speak to the microphone or to sit before the Bar table to take notes during the hearing. His Honour continued to whisper to the microphone so that the appellant could not hear him properly and thereby could not properly take part in the hearing. The appellant’s attempts and requests for his Honour to speak up so he could hear what his Honour was saying were made with an angry response from his Honour.
It is a common law duty of the court to act fairly, in the sense of according procedural fairness in the making of an order, which affects rights, interests and legitimate expectations of the appellant. It is quite clear that this is isolated and a blunt act of discrimination by his Honour Judge Tinney against the appellant. The appellant’s rights to natural justice were destroyed, defeated and prejudiced by his order and conduct.
The appellant has appeared in the years from 2000-2015 in different courts in the state of Victoria such as County Court of Melbourne, Supreme Court of Melbourne, Court of Appeal Supreme Court of Melbourne, Federal Court of Australia sitting in Melbourne, High Court of Australia sitting in Melbourne in front of different judges and never before experienced such failure of procedural fairness and discrimination committed by a judge as well as personal humiliation in the court room.[4]
[4]Paragraphs [11]-[13] of the submissions of Mr Goldberg dated 29 March 2016 quoted in Review Reasons [28].
J Forrest J concluded that these submissions were not substantiated by the evidence:
The video of the appeal does not substantiate any of Mr Goldberg’s complaints. I have set out my impression of the video at paragraph [15].[5] On only one occasion was there any difficulty in communication, and that was solved by repetition. Indeed, the clarity of the communication between the judge and Mr Goldberg was considerably better than that which regularly occurs in courts located within the Supreme Court building.
In my view, Mr Goldberg, an experienced self-represented litigant, did not appear either deflected or unsettled by his inability to sit at the Bar table. As I have noted, he used the Bar table from time to time upon which to place papers. He was able to put submissions and to respond to any issues raised by the judge. He was not shut out from raising points and the appeal was conducted fairly and consistently with the principles enunciated in Ucar and Tomasevic.
I should add that I do not accept Mr Goldberg’s contention that he endeavoured to raise with the judge the fact that he wished to give evidence from the witness box. It does not appear on the video or in the transcript. In any event, all the issues that he wished to ventilate were communicated by him to the judge from the body of the Court and dealt with by the judge.
So in summary, the judge provided the necessary assistance to Mr Goldberg in terms of the presentation of his case. I am not satisfied that there was any obstacle to Mr Goldberg by way of his position in the court which affected his ability to make his case to the judge.[6]
[5]See [23] above.
[6]Review Reasons [30]–[33].
The applicant joins issue with these conclusions.
His Honour then turned to the question of apparent bias. He referred to the leading authorities governing the requirement that a court must be seen to act impartially.[7]
[7]Ibid [35]–[41] citing Reg v Leicester JJ ex p Barrow [1991] 2 QB 260, 284 (Lord Donaldson); Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337, 344–5 [6],[8] (Gleeson CJ, McHugh, Gummow and Hayne JJ); Isbester v Knox City Council (2015) 255 CLR 135, 146 [20] (Kiefel, Bell, Keane and Nettle JJ), 155–6 [59] (Gageler J); British American Tobacco Australia Services Ltd v Laurie (2011) 242 CLR 283, 300 [33], 306 [47] (French CJ); Johnson v Johnson (2000) 201 CLR 488, 508–9 [53] (Kirby J).
In so doing, he set out the statement of fundamental principle made by the High Court in Ebner v Official Trustee in Bankruptcy:
Where, in the absence of any suggestion of actual bias, a question arises as to the independence or impartiality of a judge (or other judicial officer or juror), as here, the governing principle is that, subject to qualifications relating to waiver (which is not presently relevant) or necessity (which may be relevant to the second appeal), a judge is disqualified if a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide. That principle gives effect to the requirement that justice should both be done and be seen to be done, a requirement which reflects the fundamental importance of the principle that the tribunal be independent and impartial. It is convenient to refer to it as the apprehension of bias principle…
The apprehension of bias principle admits of the possibility of human frailty. Its application is as diverse as human frailty. Its application requires two steps. First, it requires the identification of what it is said might lead a judge (or juror) to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits. The bare assertion that a judge (or juror) has an ‘interest’ in litigation, or an interest in a party to it, will be of no assistance until the nature of the interest, and the asserted connection with the possibility of departure from impartial decision making, is articulated. Only then can the reasonableness of the asserted apprehension of bias be assessed.[8]
[8](2000) 205 CLR 337, 344–5 [6],[8] (Gleeson CJ, McHugh, Gummow and Hayne JJ) (emphasis added) (citations omitted).
His Honour also cited the statement by Kirby J in Johnson v Johnson concerning the extent of the knowledge which should be attributed to the hypothetical fair-minded lay observer for the purpose of determining whether that observer might reasonably apprehend bias:
Such a person is not a lawyer. Yet neither is he or she a person wholly uninformed and uninstructed about the law in general or the issue to be decided. Being reasonable and fair-minded, the bystander, before making a decision important to the parties and the community, would ordinarily be taken to have sought to be informed on at least the most basic considerations relevant to arriving at a conclusion founded on a fair understanding of all the relevant circumstances …
… a reasonable member of the public is neither complacent nor unduly sensitive or suspicious. [9]
[9](2000) 201 CLR 488, 508–9 [53] (citations omitted).
This passage was adopted by French CJ in British American Tobacco Australia Services Ltd v Laurie, who observed that ‘a fair-minded lay observer would, before forming a view about the existence of a reasonable apprehension of bias, take the trouble to inform himself or herself to the extent necessary to make a fair judgment’.[10]
[10](2011) 242 CLR 283, 306 [47].
J Forrest J then reached the following conclusions of fact:
In my view, at the hearing of this appeal, the fair-minded lay observer armed with the appropriate knowledge might have observed that a police officer (the representative of the law enforcement arm of the state) was represented by counsel who was able to utilise the Bar table in contradistinction to the self-represented litigant who was prevented from using the Bar table. This may have created a perception of inequality and imbalance at first glance. But that is as far as it goes.
Having watched the video closely and observed the way in which the judge conducted the appeal, I am not at all persuaded that the fair-minded lay observer who observed the entire proceeding, might have concluded that there might be any [lack of] impartiality on the part of the judge.
The observer would not just take into account where Mr Goldberg was positioned in the court: more importantly, he or she would have noted the unstifled opportunity afforded to Mr Goldberg to put his case to the judge and to respond to the case of Mr Stocker.[11]
[11]Review Reasons [42]–[44].
The applicant joins issue with these conclusions.
Having determined the facts and applied the relevant principles, his Honour dismissed the applicant’s application for judicial review.
A preliminary application
Before turning to the bases on which the applicant seeks leave to appeal the decision of the trial judge, it is necessary to say something about a preliminary application made by the applicant at the commencement of the appeal hearing in this Court.
At the commencement of the appeal hearing, the applicant made application for two of us (Osborn JA and Beach JA) to recuse ourselves. The basis of the application involved earlier cases determined by us in the Trial Division in which the applicant had been unsuccessful. On 28 March 2003, Osborn J gave an ex tempore judgment in the matter of Goldberg v Brown,[12] in which the applicant was unsuccessful in obtaining an interlocutory order for the return to him of a motor car which police believed had been ‘rebirthed’. In dismissing that application, Osborn J held that the motor car was being held pursuant to an apparently valid warrant issued by the Magistrates’ Court and went on to say:
I should add, however, that it would appear clear the provisions of the Magistrates’ Court Act entitle the plaintiff to himself make further application under s 78(6) to that court with respect to the ongoing custody of the car if he so chooses. It is apparent that the terms of the section give the magistrate the power to address the justice of the situation on an ongoing basis.[13]
[12](2003) 38 MVR 389.
[13]Ibid 392 [16].
In turn, his Honour held that, whilst the loss of possession of the car was causing the applicant hardship, this fact was countervailed by:
(c) the risk that evidence would be lost or destroyed if the car were removed from police custody; and
(d) the availability of an alternative remedy by way of supervision of the warrant through the Magistrates’ Court.[14]
[14]Ibid 392 [17].
Despite the applicant’s failure to effectively impugn the right of the police to retain the car and the fact that the balance of convenience did not favour the applicant, Osborn J nevertheless expressed some sympathy for the applicant’s position.
During the course of the hearing before me, I raised with counsel for the defendant the question whether a further intermediate investigation of the identity of the car could be undertaken by reference to the relevant VicRoads Report or alternatively the relevant insurance records. I reiterate my comment that it seems desirable in the interests of justice that such further intermediate investigation be undertaken if that is practicable.[15]
He then dismissed the applicant’s summons but reserved costs.
[15]Ibid 392 [19].
On 25 June 2009, Beach J dismissed an application made by the applicant for an order in the nature of certiorari, pursuant to O 56 of the Supreme Court (General Civil Procedure) Rules 2005, against a police informant (Mr Walter) and the County Court of Victoria.[16] In dismissing the applicant’s proceeding, Beach J concluded, after examining the evidence in that case (both the documentary evidence and the transcript of the hearing in the County Court), that the applicant received a fair trial before an impartial judge, and that the grounds upon which the applicant relied in support of his application were not made out.[17] On 14 May 2012, an appeal by the applicant to the Court of Appeal was dismissed.[18]
[16]Goldberg v Walter [2009] VSC 260.
[17]Ibid [36]–[37].
[18]Goldberg v Walter [2012] VSCA 107.
In argument before us, the applicant contended that in respect of each hearing in the Trial Division (Goldberg v Brown and Goldberg v Walter), the primary judge (Osborn J and Beach J respectively) delivered reasons for judgment finding against the applicant after having, in argument, accepted the correctness of propositions put by the applicant in the course of his submissions. Without tying his argument to either the concept of actual bias or the concept of apprehended bias, the applicant submitted that he should be entitled to have his present matter dealt with by judges who had not previously found against him and, more particularly, who had not previously found against him in circumstances where they had indicated an acceptance of what he was saying during the course of argument.
The basis (or bases) of the applicant’s recusal applications were not entirely clear. In an affidavit sworn 29 March 2016, however, the applicant deposed to having appeared before four County Court judges (before his appearance before Judge Tinney), 12 judges in the Trial Division of the Supreme Court (including Osborn J and Beach J), 12 judges of the Court of Appeal, two judges of the Federal Court and four judges of the High Court. In respect of all of these appearances, the applicant deposed:
[T]he appellant was given access to the bar table and was allowed to take notes at the bar table as well as to the microphone therefore he was treated fairly according to the procedural fairness [sic].
In other words, the applicant seeks to rely upon the manner in which proceedings were conducted before the judges he now objects to.
No evidence by way of transcript or otherwise was provided to the Court that either Osborn J or Beach J had in fact delivered decisions which contained findings contrary to indications which were given by them during the hearing leading up to the decision.
To the extent that the applicant’s recusal applications were made on the basis of actual bias, they must be rejected. The applicant did not produce any material in this Court that was capable of supporting an allegation of actual bias against any member of the bench.
The principles in relation to apprehended bias are set out above. To disqualify a judge from sitting, it must be shown that a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide. The applicant did not articulate any basis upon which a fair-minded lay observer might reasonably apprehend that any member of this Court might not bring an impartial mind to the issues required to be resolved in his current application for leave to appeal. Moreover, it must be remembered that judges have a duty to exercise their judicial function when their jurisdiction is regularly invoked and they are assigned to cases in accordance with the practice which prevails in the court to which they belong.[19]
[19]Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337, 348 [19] (Gleeson CJ, McHugh, Gummow and Hayne JJ).
Despite lengthy oral submissions to us, the applicant was unable to demonstrate any basis upon which any member of this Court was required to recuse himself. As no legitimate basis for the recusal of a member of this Court to recuse himself was articulated, it would have been wrong for any recusal to have occurred and directly contrary to the overarching obligation stated in the Civil Procedure Act 2010 which is to facilitate the just, efficient, timely and cost effective resolution of the real issues in disputes in civil litigation.[20]
[20]Civil Procedure Act 2010 s 7.
Accordingly, the applicant’s recusal applications were refused in argument, and he was directed to proceed with his application for leave to appeal. In refusing the applicant’s recusal applications, we said that we would provide reasons for those refusals as part of the Court’s reasons for judgment. These are those reasons.
The grounds of appeal
As stated in his written submissions and argued in this Court, the applicant’s proposed grounds of appeal are as follows:
1.I have been framed and convicted for a criminal offense [sic] which I had not committed.
2.The conviction was based on the fabricated evidence including exhibits presented before the Courts.
3.I have learnt during the hearing before His Honour Justice J Forrest that the video recording of the hearing before His Honour Judge Tinney was edited and there was a number of events including my statements which were not on the tape presented to His Honour J Forrest which prejudiced the outcome of the hearing and His Honour erred by finding that the Appellant was not denied Natural Justice and procedural fairness.
4.His Honour Justice Forrest misstated the law and so the verdict must be reversed in order to avoid substantial injustice to the Appellant.
5.The video recording of the hearing before His Honour Judge Tinney in County Court on 05 December 2014 was edited and incomplete and such presented before Judge Forrest had adverse impact of the hearing and prejudiced outcome of the hearing and denied Natural Justice and procedural fairness to the Appellant.[21]
[21]Written case for the applicant dated 19 September 2016, 4.
We shall deal with them sequentially.
Proposed grounds 1 and 2 of appeal — the applicant was framed
Proposed grounds 1 and 2 have no prospect of success whatsoever. They are unrelated to the matter determined by J Forrest J and we would add are totally lacking in any credible evidentiary basis.
Proposed grounds 3 and 5 of appeal — edits to the video recording
The affidavit material produced by the respondent exhibits a DVD video recording and transcript as records of the proceeding in the County Court. We have viewed the video recording carefully. It relevantly presents as an entirely coherent sequence, albeit across three separate yet entirely continuous video files contained on the DVD. No point within it was separately identified by the applicant as the location of any of the suggested deletions which he submits have been made from it. Likewise, the transcript demonstrates no apparent lack of continuity.
The basis on which the proposed ground of appeal is propounded is that the applicant believes (some years after the event) that things occurred at the hearing which do not appear on the video recording or in the transcript. No affidavit has been sworn in the proceeding which purports to actually set out what the applicant now maintains has been deleted. Insofar as it is founded upon alleged deletions from the video recording, not only is there no evidence supporting the proposed ground of appeal, but it is entirely improbable.
Proposed ground 4 of appeal — misstatement of the law
J Forrest J did not misstate the law. As we have already noted, the applicant submits that, because he has been permitted to sit at the Bar table in a series of other courts, and in particular the High Court, this establishes that he had a right to sit at the Bar table in the County Court.
We do not accept that this is so. The seating arrangements within the County Court were a matter for Judge Tinney subject to an overriding requirement to accord the applicant natural justice. As J Forrest J observed, it is unfortunate that the applicant was not permitted to sit at the Bar table but the seating arrangement did not of itself breach his rights.
The applicant’s real complaints
Although not articulated in his proposed grounds of appeal, it is plain, both from his written and oral submissions, and from the ground of review forming the basis of his application to J Forrest J, that the applicant’s real complaints are that he did not get a fair hearing and that the manner in which he was treated gave rise to an apprehension of bias.
In our view, J Forrest J’s findings of fact are dispositive of both these complaints. They are not ‘glaringly improbable’ or ‘contrary to compelling inferences’, nor have they been demonstrated to be wrong by ‘incontrovertible facts or uncontested testimony’.[22]
[22]Robinson Helicopter Company Inc v McDermott (2016) 331 ALR 550 [43] (French CJ, Bell , Keane , Nettle and Gordon JJ).
To the contrary, his Honour’s conclusions accord squarely with the evidence as to what happened at the hearing and, in particular, with what can be observed on the video recording.
The applicant’s more detailed complaints are as follows. First, the applicant asserts that he could not fully present his case. The video recording demonstrates that this is not so. Indeed, the judge went to considerable lengths to enquire of the applicant concerning those matters which might notionally affect the positive outcome of his appeal.
Secondly, the applicant submits that he could not hear the judge properly. Again, the video recording demonstrates this is not so. The courtroom is a modern courtroom of user-friendly dimensions and it is apparent from the video recording that, save for one instance, the applicant well understood what the judge was saying. There was one occasion on which the applicant did not catch what the judge said. He asked the judge to repeat what he had said and the judge did so. The applicant then responded to what the judge had said.
Thirdly, it is submitted that the judge responded to the applicant’s submissions with anger and inhibited the presentation of the applicant’s case. During the course of the hearing the judge rebuked the applicant for expressing his submissions in terms of what the applicant ‘insisted’. The judge was entitled to take issue with this form of submission. When the recording is viewed as a whole, it is apparent that the judge went to commendable lengths in listening to the applicant and drawing out the substance of matters that might support his case.
Fourthly, it is submitted the judge refused to allow the applicant to give evidence from the witness box. The video recording and transcript demonstrate that this did not occur.
Moreover, the assertion that Judge Tinney refused to allow the applicant to give sworn evidence is a new assertion. It is not referred to in the applicant’s amended ground of review,[23] which is otherwise compendious.
[23]See Goldberg v Spencer [2016] VSC 20 [43]–[46] (Lansdowne AsJ).
Even more fundamentally, this alleged aspect of the matter goes to a ground which was not properly before J Forrest J and is not properly before us.
Conclusion
None of the applicant’s proposed grounds of appeal have any real prospect of success and leave to appeal must be refused.
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