Gilfillan v County Court of Victoria

[2000] VSC 569

SUPREME COURT OF VICTORIA
COMMON LAW DIVISION	Not Restricted

No. 6350 of 2000

SIMON TIMOTHY GILFILLAN	Plaintiff
v
THE COUNTY COURT OF VICTORIA	First Defendant
and
JOHN GERARD LEE	Second Defendant

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JUDGE:	Nathan J
WHERE HELD:	Melbourne
DATE OF HEARING:	17 November 2000
DATE OF JUDGMENT:	17 November 2000
CASE MAY BE CITED AS:	Gilfillan v County Court of Victoria & Anor
MEDIUM NEUTRAL CITATION:	[2000] VSC 569

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr P. Billings	Sher & Associates
For the Second Defendant	Mr J. Rapke QC	Mr P. Wood Office of Public Prosecutions

HIS HONOUR: 

1. Mr Gilfillan, the plaintiff, was charged with offences under the Road Safety Act concerning a refusal to submit to breath analysis. The matter was heard before a magistrate and an appeal against a conviction was heard before the County Court consisting of His Honour Judge Pilgrim. That court reaffirmed the conviction, the matter has now come before me by way of an originating motion under the terms of order 56.

1. The motion seeks orders in the nature of certiorari that the conviction be quashed, a declaration that the judge erred in law in permitting the prosecution to reopen its case after the closure of the defence case and that the procedure conducted in December was procedurally unfair, a denial of natural justice and wrong in law.

1. Consequent orders in the nature of mandamus are also sought.  The grounds upon which the relief is sought are global in character and it is necessary for me to recite them.  The grounds are that the Judge erred in law in refusing to dismiss the charge brought against the plaintiff; that the plaintiff was denied procedural fairness and natural justice in that the Judge erred in law in allowing the respondent to reopen the case.

1. When the matter was called on before me I asked Mr Billings to confirm the nature of the argument before me, one wing of which could have been the issue of whether there had been a refusal to submit to breath analysis.  Because on the facts it might be said there was qualified permission.  He told me that it was not to be argued before me and there would have been great procedural difficulties had there been.

1. The second ground was the Judge's unfairness in initiating a search of court documents, which went to the relevant date upon which the original charge against Mr Gilfillan had been filed.  Mr Billings informed me that a Judge, by engaging in that conduct, could be seen by the astute bystander to have displayed a level of bias against the interests of Mr Gilfillan.

1. The document obtained might have had the effect of curing deficiencies in the Crown case.  In any event, the Judge allowed the Crown to re-open its case.  The circumstances of making that decision gives rise to the second allegation of ostensible bias, that is that the Judge apparently informed the prosecution that he would favourably entertain an application to re-open the matter but did not inform Mr Gilfillan's counsel or his solicitors of his intention.  Accordingly, when the matter came on for hearing, the astute bystander would have perceived that the Judge displayed bias in favour of the Crown by permitting it firstly to re-open its case and secondly adduce evidence arising from the Judge's own researches which cured deficiencies in the Crown case.

1. In my view, these are very serious allegations of ostensible bias indeed, but they have not been made known to the Judge and accordingly he has not been given the opportunity of addressing, refuting or accepting them.

1. The Crown in this case would agree to me remitting this matter to another Judge of the County Court for rehearing.  Mr Billings, on behalf of his client, proffers no such consent.  Accordingly I am left with the matter to decide upon the basis of the fair and proper administration of justice.

1. This case has been raised against a Judge, indeed he is a party to the proceedings, and the grounds as further adumbrated by Mr Billings relate to him and to no other County Court Judge.  In my view it is proper for the case to remain in this jurisdiction, but I will adjourn it, directing the plaintiff to make out its grounds of ostensible bias and to provide particulars thereof.  I will be prepared to hear counsel as to time limits and timeframes so that that may be done, and rather than have the case go through the relisting process again, I will maintain it in this court's lists as so amended and expanded and direct that it be relisted by the Listing Master so that the costs involved will be kept to a minimum.

1. Of course, I cannot say what the Judge may say or choose to do upon receipt of the expanded grounds, in which case the procedures I have indicated may well have to be amended.  But it is a cardinal principle of the law that just as Mr Gilfillan was demanding to know what his rights were in this case, and to be fully informed of the legalities of the matter, so too must the Judge in this case be fully informed of that which is alleged against him.

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CERTIFICATE

I certify that this and the 2 preceding pages are a true copy of the reasons for judgment of Nathan J of the Supreme Court of Victoria delivered on 17 November 2000.

DATED: this seventeenth day of November 2000.

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Associate