Divitaris v Bulteel-Adams
[2023] VCC 2012
•30 October 2023
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. AP-23-0633
| GEORGE DIVITARIS | Appellant |
| v | |
| SC ADAM BULTEEL-ADAMS | Respondent |
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JUDGE: | His Honour Judge Rozen | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 30 October 2023 | |
DATE OF RULING: | 30 October 2023 | |
CASE MAY BE CITED AS: | Divitaris v Bulteel-Adams | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 2012 | |
RULING
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Subject:CRIMINAL LAW – APPEAL
Catchwords: Appeal from the Magistrates’ Court of Victoria – Appeal against conviction and sentence – Decision of judicial registrar – Jurisdiction to hear and determine the appeal – Appeal to magistrate provided for by rules – Competency of appeal to County Court of Victoria – Appeal provided for by legislation – Statutory interpretation – Appeal competent – No implied repeal – County Court has jurisdiction
Legislation Cited: Road Safety Road Rules 2017 (Vic); Criminal Procedure Act 2009 (Vic); Magistrates Court Act 1989 (Vic); Magistrates Court (Judicial Registrars) Rules 2015; Courts Legislation Miscellaneous Amendments Act 2014 (Vic)
Cases Cited:NSW v Kable (2013) 252 CLR 118; White v Ropata [2017] VSC 518; QUBE Holdings Ltd v Krikas [2022] VMC 15; Rodger v Wojcik [2014] VSC 308; Saraswati v R (1991) 172 CLR 1; MIMIA v Nystrom (2006) 228 CLR 566
Ruling: County Court has jurisdiction to hear appeal of decision of judicial registrar of the Magistrates’ Court
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APPEARANCES: | Counsel | Solicitors |
| For the Appellant | In person | – |
| For the Respondent | Mr J. McCarthy | Office of Public Prosecutions |
HIS HONOUR:
1Mr George Divitaris appeals against conviction and sentence from a decision dated 26 May 2023 of a Judicial Registrar of the Magistrates’ Court of Victoria sitting at Broadmeadows.
2On that day, Mr Divitaris was fined $545.00 without conviction having been found guilty of using a hand held mobile phone while his car was stationary contrary to r 300 of the Road Safety Road Rules 2017 (Vic).
3The appeal is brought pursuant to s 254 of the Criminal Procedure Act 2009 (Vic) (CPA).
Does this Court have Jurisdiction?
4Before considering the merits of the appeal, this court must decide whether it has authority to decide, or jurisdiction to hear, the appeal.[1] Only if the Court has authority to decide the appeal, is it entitled as a matter of law to consider the merits.
[1] NSW v Kable (2013) 252 CLR 118, [31].
5This enquiry is necessary even though both parties submit that the court has jurisdiction. Mr Divitaris agreed with the written submissions of the respondent dated 26 September 2023 on this aspect of his case.
6Section 254 of the CPA relevantly provides:
Subject to subsection (2), a person convicted of an offence by the Magistrates' Court in a criminal proceeding conducted in accordance with Part 3.3 may appeal to the County Court against—
(a) the conviction and sentence imposed by the court; or
(b) sentence alone.
7The Magistrates’ Court is established by s 4(1) of the Magistrates Court Act 1989 (Vic) (MCA). The Court consists of ‘the magistrates, the judicial registrars and the registrars of the Court’.[2] The Court is constituted by a magistrate ‘except in the case of any proceeding for which provision is made by any Act or the Rules for the Court to be constituted by a Registrar’.[3]
[2] Magistrates Court Act 1989 (Vic), s 4(2).
[3] Ibid, s 4(3). See also s 4(3AA).
8The reference in s 4 of the MCA to ‘the Rules’ includes a reference to the Magistrates Court (Judicial Registrars) Rules 2015 (the 2015 Rules).
9Rule 6 of the 2015 Rules provides that, subject to a presently irrelevant exception, a Judicial Registrar may ‘deal with and exercise all or any of the powers of the Court’ in any of the listed proceedings. One of the listed categories is ‘a proceeding for an offence which is an infringement within the meaning of the Infringements Act 2006, except for a proceeding under section 49 of the Road Safety Act 1986’.[4]
[4] Magistrates Court (Judicial Registrars) Rules 2015, r 6(d).
10The offence against r 300 of the Road Safety Road Rules 2017 (Vic) was, at the relevant time, such an offence.
11On a literal reading of s 254 of the CPA, it seems clear that the County Court has jurisdiction to hear this appeal. However, there is another avenue by which a person aggrieved by a decision of a Judicial Registrar may challenge that decision on the merits. The question is what effect does that further avenue have on the appeal provided for under s 254?
12The answer to the question involves the application of the rules of statutory construction. The starting point is to consider the text of the relevant provisions.
13Section 16K of the MCA, which was inserted into that Act in 2005, originally provided as follows:
(1) The Court constituted by a magistrate may direct that the hearing and determination of a proceeding by the Court constituted by a judicial registrar be reviewed by the Court constituted by a magistrate.
(2) A direction may be given under sub-section (1) at the request of a party to the proceeding or by the Court of its own motion.
(3) A review under this section is to be conducted as a hearing de novo.
14Section 16K was repealed and replaced in 2014[5] and currently provides:
[5] See Courts Legislation Miscellaneous Amendments Act 2014 (Vic) which received the Royal Assent on 9 September 2014. The relevant provisions commenced on 10 November 2014.
(1) The rules may provide for appeals from or reviews of a determination of the Court constituted by a judicial registrar—
(a) whether in respect of—
(i)the hearing and determination of any proceeding (whether criminal or civil); or
(ii) any interlocutory application; and
(b) whether in respect of specified kinds of application or proceeding or generally; and
(c) by specifying whether the procedure is by way of appeal or review or both; and
(d) by specifying the way in which the Court may be constituted for those appeals or reviews.
(2) The powers in subsection (1) are in addition to and do not limit any power to make rules under section 16I.
(3) Unless the rules otherwise provide, a determination of the Court constituted by a judicial registrar may be appealed from or reviewed—
(a) on application of a party to the proceeding; or
(b) on the Court's own motion.
(4) If the rules do not provide for an appeal from or a review of a determination of the Court constituted by a judicial registrar, the determination is to be subject to a review or an appeal conducted—
(a) by way of hearing de novo by the Court constituted by a magistrate; and
(b) otherwise in accordance with the rules, if any.
15Rules providing for the practical operation of s 16K were made in 2005 (the 2005 Rules).[6]
[6] Magistrates Court (Judicial Registrar) Rules 2005.
16In 2015, the 2015 Rules revoked and replaced the 2005 Rules.
17Rule 16 of the 2015 Rules provides:
(2) An application under section 16K(3)(a) of the Act for review of a determination of the Court constituted by a judicial registrar must be—
(a) in Form 1; and
(b) accompanied by an affidavit that must state the reasons for the application.
(3) The application and the affidavit must be filed within 14 days after the day on which the determination was made.
(4) The Court may extend time under paragraph (2) before or after the time expires, whether or not an application is made before the time expires.
(5) The application for the review must be determined by the Court—
(a) after consideration of the application and the accompanying affidavit; and
(b) unless the Court otherwise directs, without notice to any person.
18In White v Ropata[7], Lansdowne AsJ concluded that a ‘review’ under s 16(4)(k) of the MCA, as explained by r 16 of the 2015 Rules, involves a 2-stage process. Her Honour held that ‘it is plain that these rules intend a two-stage process – application for review, which may be granted or refused, and, if granted, a review’. Her Honour observed that the 2015 rules are ‘silent as to the permitted grounds for an application for review, and the nature of that review, if granted’.[8]
[7] [2017] VSC 518.
[8] Ibid, [81].
19This approach is being applied by Magistrates upon whom it is of course binding.[9]
[9] See, e.g., QUBE Holdings Ltd v Krikas [2022] VMC 15.
20In the 2014[10] case of Rodger v Wojcik[11], the appellant sought to challenge a decision of a Judicial Registrar under s 272 of the CPA. Section 272 enables a ‘party to a criminal proceeding in the Magistrates’ Court’ to appeal to the Supreme Court on a question of law from a ‘final order’ of the Magistrates’ Court’ in that proceeding.
[10] The matter was heard in August of 2013 but judgment was not delivered until June 2014.
[11] [2014] VSC 308.
21One issue before the Supreme Court of Victoria was whether an order made by a Judicial Registrar was a ‘final order of the Magistrates’ Court’. The Director of Public Prosecutions had argued that the appeal was incompetent. Croucher J rejected that submission on the basis that s 272 of the CPA made ‘no distinction’ between final orders of Magistrates and final orders of Judicial Registrars.[12] The words of s 272 of the CPA were plain according to the Court. The appeal was therefore competent.
[12] Ibid, [16].
22In reaching that conclusion, Croucher J observed that if the opposite was true and no appeal on a question of law was available to a person aggrieved by a decision of a Judicial Registrar, the ‘logical extension’ would be that an appeal would not lie under s 254 of the CPA against such a decision either. While his Honour went no further (and the observation did not form part of the Court’s reasons for decision), he did observe that such appeals were in fact being entertained by the County Court and that the Director had not submitted to his Honour that such appeals were incompetent.[13]
[13] Ibid, [18].
23Although it was not a matter that the court was called upon to decide, it appears that the Supreme Court considered that an appeal under s 254 of the CPA was available against a decision of a Judicial Registrar within the limits of their jurisdiction. I consider that it would be a curious outcome if an appeal on a question of law is available in respect of such a decision but an appeal by way of a rehearing is not. It is significant that both s 254 and s 272 are located in chapter 6 of the CPA. Ordinarily provisions within the same chapter of a statute employing near identical language would be expected to operate consistently. That results from the construction of a statutory provision in context.
24While Croucher J was considering the version of s 16K of the MCA prior to its replacement in 2014, I do not consider that his Honour’s decision is distinguishable on this basis.
25As noted earlier, s 16K of the MCA was re-enacted in 2014. If parliament had wanted to limit the appeal rights under s 254 of the CPA to a decision of the Magistrates’ Court as constituted by a magistrate, it would have been a straightforward matter of amending s 254 at that time to make clear that an appeal from, or review of, a determination by a judicial registrar could only be heard by a Magistrate. That was not done.
Implied Repeal?
26Could it be said that the Courts Legislation Miscellaneous Amendments Act 2014 (Vic), when it introduced the new s 16K into the MCA (read together with the 2015 Rules), impliedly repealed s 254 of the CPA to the extent that it provided for appeals from decisions of Judicial Registrars? In other words, by introducing detailed procedures for appeals from that category of decisions, could it be said that s 254 of the CPA was henceforth by implication limited to appeals from decisions of magistrates?
27An existing statute may be construed by the courts as having been impliedly repealed by a subsequent enactment where an intention to that effect is necessarily to be implied.[14] However, such an intention will not lightly be implied. As Gummow and Hayne JJ explained in MIMIA v Nystrom:
The doctrine requires that actual contrariety be clearly apparent and that the later of the two provisions be not capable of sensible operation if the earlier provision still stands[15]
[14] Saraswati v R (1991) 172 CLR 1, 17.
[15] (2006) 228 CLR 566, 585 (emphasis added).
28There is no ‘actual contrariety’ between s 254 of the CPA and s 16K of the MCA. Rather, the two provisions read together provide a person who wishes to challenge a determination by a Judicial Registrar with a choice of fora and a choice of process. They can either pursue the matter in the Magistrates’ Court under s 16K or they can pursue the matter in this court under s 254. In other words, the two provisions can both operate.
29Accordingly I am satisfied that I have jurisdiction to hear this matter and will now go on to determine the merits of the appeal.
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