Fotis v Magistrates' Court of Victoria
[2001] VSC 301
•30 August 2001
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
PRACTICE COURT
No. 7105 of 2001
| CHRISTOPHER FOTIS | Plaintiff |
| v. | |
| THE MAGISTRATES' COURT OF VICTORIA AND ANOTHER | Defendants |
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JUDGE: | BEACH, J | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 20 AUGUST 2001 | |
DATE OF JUDGMENT: | 30 AUGUST 2001 | |
CASE MAY BE CITED AS: | FOTIS v. THE MAGISTRATES' COURT OF VICTORIA & ANOR. | |
MEDIUM NEUTRAL CITATION: | [2001] VSC 301 | |
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CATCHWORDS: Magistrates' Court – Claim against Magistrate of ostensible bias – Evidence disclosing no grounds for apprehension of bias.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | In Person | |
| For the Second Defendant | Mr. A. Schwartz | Wightons Lawyers |
HIS HONOUR:
The plaintiff is a solicitor by profession practising in the City of Geelong. I accept for present purposes that he is well known to the Magistrates who regularly sit at the Geelong Magistrates' Court.
On 23 July 2001 the plaintiff was served with a Complaint and Warrant for an Intervention Order taken out by the second defendant pursuant to the provisions of the Crimes (Family Violence) Act 1987 (the Act). The plaintiff was then released on bail to appear at the Geelong Magistrates' Court on 25 July 2001.
The matter came before the Court on the morning of 25 July. The Court was presided over by His Worship Mr. Von Einem M.
The plaintiff submitted that Mr. Von Einem should not hear the proceeding because he was biased against the plaintiff. Further, the plaintiff contended that the proceeding should not be heard at Geelong but should be transferred to Melbourne for hearing by an independent Magistrate.
Mr. Von Einem rejected the submission that he was biased but stated that for the sake of expediency he would disqualify himself and refer the matter to another Magistrate.
At 2.00 p.m. that same day the proceeding came before Mr. Kelstadt M. The plaintiff represented himself at the hearing. The second defendant was represented by the duty solicitor, a Mrs. O'Brien.
At the commencement of the hearing the plaintiff contended that the complaint and warrant had been invalidly issued and served in that the copy served upon him had not been signed by the complainant. In that regard the plaintiff relied upon ss.10 and 11(2)(a) of the Act which read:
"10.If the complainant seeks a warrant to issue in the first instance for the arrest of the defendant the complaint must be in writing and on oath and the complaint and the warrant are to be in the same document.
11(2) A complaint must be served on the defendant by –
(a)delivering a true copy of the complaint to the defendant personally."
It would appear that although the original complaint and warrant had been signed as required, an unsigned copy had been served on the plaintiff.
During the course of the discussion concerning the complaint and warrant Mr. Klestadt M. made it clear that he would only hear an application for an interim order that day because any contested hearing would not be concluded within a day and it was necessary for him to return to Melbourne by reason of other duties he was required to perform. He further stated that in the circumstances a contested hearing should be conducted before a Magistrate who did not sit regularly in Geelong.
There was then a short adjournment of the proceeding.
When the hearing resumed the plaintiff renewed his application to strike out the complaint and warrant.
What then occurred is set out at p.11 of the transcript of the proceedings that day and I quote:
"71.
Mag. Klestadt:
I take this view that it is a highly technical objection in the circumstances but one which does have some merit. My view is this: that given the seriousness of the issues joined in the material it would be unwise to proceed on a document which may in the fullness of time before some isolated Supreme Court judge be found to be invalid and therefore invalidate the whole process. I propose to strike out this complaint and direct you, if you see fit, to attend at the Registrars office now to file a new complaint. If you then come before me asking for an interim order I'll deal with that on its merits. This application is marked struck out. Mr. Fotis you are excused.
72.
Fotis:
Thank you. All bail conditions have been dispensed with?
73.
Mag. Kelstadt:
I beg your pardon.
74.
Fotis:
All bail conditions have been dispensed with?
75.
Mag. Kelstadt:
Yes. I point out, however, that you would be extremely unwise to behave in a way which might prejudice your position further. I take it you will be attending at the …
76.
O'Brien:
Forthwith, Your Worship.
77.
Mag. Klestadt:
Forthwith.
78.
Mag. Klestadt:
Yes, You're excused, Yes, You're excused.
(9 second delay)
79.
Mag. Klestadt:
Can you make sure that's fixed properly to come before me … an interim order."
It would appear that the duty solicitor and complainant then went immediately to the registry of the Court and issued a fresh complaint and warrant. They then returned before Mr. Klestadt and, in the absence of the plaintiff who had by then left the Court, made application for an interim order.
Having heard the evidence of the complainant Mr. Klestadt proceeded to make the following interim orders in the matter:
"The Court ordered that the defendant be prohibited from
ASSAULTING, HARASSING, MOLESTING, THREATENING OR INTIMIDATING THE AGGRIEVED FAMILY MEMBER/S.
APPROACHING, TELEPHONING OR CONTACTING THE AGGRIEVED FAMILY MEMBER/S EXCEPT IN THE COMPANY OF A POLICE OFFICER, OR BY DIRECTION OR ORDER MADE BY A COURT EXERCISING JURISDICTION UNDER THE FAMILY LAW ACT 1975.
KNOWINGLY BEING AT OR WITHIN 200 METRES OF PREMISES SITUATED AT 32 PARAM ST, GROVEDALE
OR ANY OTHER PREMISES WHERE THE AGGRIEVED FAMILY MEMBER/S LIVES OR WORKS EXCEPT IN THE COMPANY OF A POLICE OFFICER.
DAMAGING PROPERTY OWNED/JOINTLY OWNED BY THE AGGRIEVED FAMILY MEMBER/S.
CAUSING ANOTHER PERSON TO ENGAGE IN CONDUCT PROHIBITED BY THIS ORDER.
POSSESSING, CARRYING OR USING ANY FIREARM; ANY FIREARMS LICENCE, PERMIT OR AUTHORITY IS SUSPENDED AND THE DEFENDANT IS TO SURRENDER ANY FIREARM AND LICENCE, PERMIT OR AUTHORITY IMMEDIATELY TO A MEMBER OF THE POLICE FORCE.
OTHER order:
LIBERTY TO APPLY ON 48 HOURS NOTICE.
MATTER TO BE LISTED FOR A TWO DAY CONTESTED HEARING BEFORE A MAGISTRATE OTHER THAN THOSE WHO NORMALLY SIT AT THIS COURT.
THIS ORDER WILL LAST UNTIL 10/9/2001.
THIS IS AN INTERIM INTERVENTION ORDER."
On returning to the Court later that afternoon the plaintiff learned of the making of the interim order. He immediately filed an application in the Court seeking to have the interim order revoked.
The application came before His Worship Mr. Klestadt M. on 1 August. Mr. Klestadt declined to hear the application but adjourned it to 10 September to be heard at the same time as the substantive application. It is clear from remarks His Worship made at the time he declined to hear the application that he considered that as with the substantive application, the application to revoke the order should be heard by an independent Magistrate.
On 10 August 2001 the plaintiff filed an originating motion in the Court naming as defendant the Magistrates' Court of Victoria and the complainant and by which he seeks the following relief:
"3.That the ex parte interim orders made by Magistrate Klestadt on 25 July 2001 in matter No. PO1633156 of the Magistrates' Court of Victoria, Geelong, be set aside, or stayed, forthwith upon whatever conditions this Honourable Court deems fit, on the basis of a denial of natural justice and/or a perception of bias and/or actual bias by Magistrate Klestadt and the matters raised in the affidavit of the Plaintiff dated 10 August 2001.
4.That the order made by Magistrate Klestadt in matter No. PO1633156 of the Magistrates' Court of Victoria, Geelong, on 1 August 2001 to adjourn the Plaintiff's application filed 25 July 2001 until 10 September 2001 be set aside and the Plaintiff's application in matter No. PO1633156 be listed expeditiously at the Melbourne Registry of Magistrates' Court of Victoria for hearing on the basis of a denial of natural justice and/or a perception of bias and/or actual bias by Magistrate Klestadt and the matters raised in the affidavit of the Plaintiff dated 10 August 2001.
5.That matter No. PO1633156 of the Magistrates' Court of Victoria be transferred to the Melbourne Registry of the Magistrates' Court of Victoria for all further hearings and applications and all orders concerning dates and venue of hearing made be set aside on the basis of a denial of natural justice and/or a perception of bias and/or actual bias and/or in the interests of the administration of justice and the matters raised in the affidavit of the Plaintiff dated 10 August 2001."
The originating motion came before me for hearing on 20 August. At the conclusion of the hearing that day the plaintiff sought leave to amend his originating motion by adding the following paragraphs:
"6.A Declaration that Magistrate Kelstadt was biased and prejudiced against the plaintiff on 25 July 2001 and 1 August 2001 in matter No. PO1633156 and/or matter No. PO1588043 upon the basis of the matters raised in the affidavit of the Plaintiff dated 10 August 2001.
7.A Declaration that Magistrate Von Einem was biased and prejudiced against the plaintiff on 25 July 2001 in matter No. PO1588043 upon the basis of the matters raised in the affidavit of the Plaintiff dated 10 August 2001.
8.A Prohibition against Magistrate Klestadt and Magistrate Von Einem hearing any matter which the plaintiff is a litigant and/or advocate upon the basis that Magistrate Klestadt and Magistrate Von Einem are biased and prejudiced against the Plaintiff."
It would seem to me that the following questions arise for my determination:
1.Did His Worship Mr. Von Einem M. display bias towards the plaintiff during the course of the hearing before him on 25 July?
2.Did His Worship Mr. Klestadt display bias towards the plaintiff during the course of
(a) the initial hearing before him on 25 July;
(b) the ex parte hearing before him on 25 July;
(c) the hearing before him on 1 August?
The question of bias on the part of a judicial officer was considered by the High Court in Re Polites; Ex Parte Hoyts Corporation Pty. Ltd.[1]. At p.85 the Court said:
[1](1991) 173 C.L.R. 78
"… The relevant test has been prescribed by this Court in a number of cases and is expressed in Livesey v. New South Wales Bar Association (1983) 151 C.L.R. 288 at pp.293-294 in these terms:
'[The] principle is that a judge should not sit to hear a case if in all the circumstances the parties or the public might entertain a reasonable apprehension that he might not bring an impartial and unprejudiced mind to the resolution of the question involved in it … Although statements of the principle commonly speak of 'suspicion of bias', we prefer to avoid the use of that phrase because it sometimes conveys unintended nuances of meaning.'
In applying this test, it is necessary to bear in mind the caution expressed by Mason J. in Re J.R.L.; Ex parte C.J.L. (1986) 161 C.L.R. 342 at p.352:
'It seems that the acceptance by this Court of the test of reasonable apprehension of bias in such cases as Watson (1976) 136 C.L.R. 248 and Livesey has led to an increase in the frequency of applications by litigants that judicial officers should disqualify themselves from sitting in particular cases on account of their participation in other proceedings involving one of the litigants or on account of conduct during the litigation. It needs to be said loudly and clearly that the ground of disqualification is a reasonable apprehension that the judicial officer will not decide the case impartially or without prejudice, rather than that he will decide the case adversely to one party. There may be many situations in which previous decisions of a judicial officer on issues of fact and law may generate an expectation that he is likely to decide issues in a particular case adversely to one of the parties. But this does not mean either that he will approach the issues in that case otherwise than with an impartial and unprejudiced mind in the sense in which that expression is used in the authorities or that his previous decisions provide an acceptable basis for inferring that there is a reasonable apprehension that he will approach the issues in this way.'
In Reg v. Australian Stevedoring Industry Board; Ex parte Melbourne Stevedoring Co. Pty. Ltd. (1953) 88 C.L.R. 100 at p.116, Dixon CJ, Williams, Webb and Fullagar JJ said:
'when bias of this kind is in question, as distinguished from a bias through interest, before it amounts to a disqualification it is necessary that there should be strong grounds for supposing that the judicial or quasi-judicial officer has so acted that he cannot be expected fairly to discharge his duties. Bias must be 'real'. The officer must so have conducted himself that a high probability arises of a bias inconsistent with the fair performance of his duties, with the result that a substantial distrust of the result must exist in the minds of reasonable persons. It has been said that 'preconceived opinions – though it is unfortunate that a judge should have any – do not constitute such a bias, nor even the expression of such opinions, for it does not follow that the evidence will be disregarded', per Charles J., Reg. v. London County Council; Re The Empire Theatre (1894) 71 L.T. 638 at p.639'."
The transcript of the hearing before Mr. Von Einem M. on 25 July is clearly incomplete. It has been necessary therefore also to have regard to the content of the plaintiff's affidavit of 10 August 2001 to determine what took place during that fairly brief hearing.
Having done so I find that there was nothing that Mr. Von Einem did before transferring the complainant's complaint for hearing by another Magistrate from which it could be said that Mr. Von Einem so conducted himself that he displayed bias inconsistent with the fair performance of his duties. Of more importance is the fact that apart from transferring the complainant's application to another Magistrate for hearing, he made no finding or determination in the matter.
Any claim in respect of Mr. Von Einem therefore, must necessarily fail.
Nor in my opinion can it be said that His Worship Mr. Klestadt M. displayed bias towards the plaintiff during the first hearing before him that same day. Indeed at that hearing he ultimately found in favour of the plaintiff.
During the course of the hearing before me the plaintiff, who appeared on his own account, made much of what he said amounted to an invitation by Mr. Klestadt to the complainant to immediately issue a fresh complaint and warrant in the event he found the original complaint and warrant defective. The relevant passage reads:
"34.
Mag. Klestadt:
Mr. Fotis at this stage I do not propose to formally rule on your objection but the situation as I see it is this and I say this because I am going to ask you a question. There clearly seems to be, there clearly is in existence a complaint and warrant which on the face of it is a sworn document. Section 10 provides that the complaint must be in writing and on oath and the complaint and warrant are to be the same document. It would appear on the face of it that the document that I have complies with that requirement, but the point that you take is that the document which you were served at the time of the execution of the warrant appears on the face of it to be at variance with the original document to the extent that the document doesn't have a signature and there seems to have been an alteration to the name of the complainant defendant which has been written in hand and it appears to have been amended with the authority of the registrar of the court. Now if I rule in your favour today and this complaint is effectively struck out, what is going to happen I have no doubt is that the complainant will attend at the counter immediately and on the same grounds this afternoon swear a further complaint on the same basis the same material and seek the issue of a warrant and we can start again and I am not suggesting for a moment that this is what is going to happen if you then make yourself scarce and the issue and warrant cannot be executed within a reasonable time and there has been an application for interim order and on the basis of the material I have seen ex parte such an order might in fact be granted. Now on that basis it would seem that you are risking placing yourself at a considerably disadvantaged position than that which you might be in otherwise. The reason why I say that is as follows: as you make quite clear you intend to oppose the making of any order. On the basis that currently on the state of play at this stage there are bail conditions which may be extended or varied or whatever I would not make an interim order. It seems to me that there is an issue to be joined between the parties and on the brief reading that I have made on the material that is extant at this point I would say that any contested hearing of a complaint for an intervention order would not be concluded within a day. Further, in all the circumstances it's a matter which should be conducted in my view before a Magistrate which doesn't regularly sit in Geelong.
35.
Fotis:
Yes.
36.
Mag. Klestadt:
It is no secret that you are a practitioner who has appeared before all of us here. Perhaps because I have been here the shortest time probably, fewer times before me than anybody else. In any event so that there is complete transparency the matter should proceed before a Magistrate who does not sit in Geelong. Now it seems to me that for the proper disposition of this complaint of the complainant, and I use that neutrally, not this piece of paper, the appropriate thing is for this matter to be adjourned today without the making of an interim order to a date which can be fixed for hearing at this court before a Magistrate not from this area, whose not known or who does not know anybody and that the bail conditions could properly be then extended or amended or varied as required. I certainly hear argument about that, but that's what seems to me would be the best disposition from all parties, because otherwise as I say Mr. Fotis I have no doubt at all were I to strike out this complaint on a technical ground that you have raised, there will be another complaint in existence in almost exactly the same terms, perhaps with the 'I's dotted the 't's crossed a bit more carefully and you will be faced with exactly the same situation tomorrow or the next day, or the next day. Now I can say that to you because you are a practitioner and you know what your rights are, I am not brow beating you. It seems to me that is a sensible resolution today of the issues joined between the parties because there is not going to be a final resolution of the matters today. Normally I now send you off to have a chat to your client. Do you want time to consider what I have said?"
In my opinion there is nothing objectionable concerning that passage. The plaintiff would be well aware of the likelihood of a fresh complaint and warrant being issued in the event the original complaint and warrant was struck out.
Finally so far as the later ex parte application is concerned, there is nothing which arose during the course of that hearing which demonstrated bias on the part of the Magistrate.
Section 8(1) of the Act specifically provides that the Court may make an interim intervention order whether or not a copy of the complaint for the intervention order has been served on the defendant.
In the circumstances of this case the Court was required to be satisfied that the making of the order was necessary to ensure the safety of the aggrieved family member. Mr. Klestadt M. was so satisfied.
I should add that it was the plaintiff's own action in leaving the Court immediately after the ruling was made in his favour which resulted in the ex parte application being made to the Court.
The duty solicitor had made it clear in the passage of the transcript to which I earlier referred, that she intended to "forthwith" file a new complaint and warrant. Had the plaintiff waited at the Court whilst that was done he would then have had an opportunity to be heard. But for some reason he did not, yet somewhat surprisingly he returned to the Court later that same afternoon.
I turn finally to the hearing of the application to revoke the interim order on 1 August. In my opinion there was nothing about that hearing which demonstrated bias on the part of Mr. Klestadt.
The plaintiff had objected to any of the Magistrates who sit regularly at Geelong hearing the complaint against him. His objection had been upheld and arrangements had been made to have an independent Magistrate sent to Geelong for a two day hearing commencing on 10 September.
In my opinion, consistent with that arrangement it would have been quite inappropriate for Mr. Klestadt to hear the application for revocation. Further, the hearing of that application would have involved a determination of many of the issues which will be heard and determined on or after 10 September. In my opinion that too would be a highly unsatisfactory situation.
In the final analysis I am not persuaded that either Magistrate displayed bias towards the plaintiff inconsistent with the fair performance of their duties.
Accordingly in a moment I propose to dismiss the plaintiff's application to amend his originating motion and the originating motion itself.
But before I do so I wish to make two final points.
The hearing of the complainant's application on 10 September will be a hearing de novo. Accordingly any complaint that the plaintiff now has concerning the hearings on 25 July and 1 August must necessarily be overcome when the complaint is heard at Geelong by an independent Magistrate. If contrary to the views I have formed, there had been any bias on the part of one or other of the Magistrates it would cease to be relevant when the complaint is heard. In my opinion that alone would justify the Court refusing relief in the nature of certiorari. See the decision of the Court of Appeal of Victoria in C. v. Burg[2].
[2](unreported 16 December 1998)
Finally the interim order made on 25 July is but a step, albeit an important one, in the criminal proceeding brought by the complainant against the plaintiff. In my opinion it is highly undesirable to interrupt the ordinary course of that proceeding. In that regard see The Queen v. Sorlano[3].
[3](1984) 58 A.L.J.R. 22
The following are the orders of the Court:
1.The plaintiff's application to amend the originating motion made on 20 August is dismissed.
2. The originating motion as such is dismissed.
3.I order that the plaintiff pay the second defendant's costs of the proceeding including any reserved costs.
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