Goldberg v Shenton
[2016] VSC 21
•5 February 2016
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S CI 2014 5268
| DAVID GOLDBERG | Plaintiff |
| v | |
| BRETT SHENTON | First Defendant |
| - and - | |
| COUNTY COURT | Second Defendant |
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JUDGE: | Lansdowne AsJ |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 8 May 2015 |
DATE OF JUDGMENT: | 5 February 2016 |
CASE MAY BE CITED AS: | Goldberg v Shenton & Anor |
MEDIUM NEUTRAL CITATION: | [2016] VSC 21 |
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JUDICIAL REVIEW – plaintiff seeks judicial review of County Court determination of an appeal against conviction in the Magistrates’ Court – alleges failure by the County Court judge to disclose his ‘close friendship’ with a magistrate who had previously made orders against the plaintiff in other proceedings – plaintiff alleges being persecuted by police and that magistrate at the direction of ASIO - informant seeks summary dismissal – no real prospect of success of any of the plaintiff’s grounds - summary dismissal ordered.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | In person | |
| For the First Defendant | Mr A Castle, solicitor |
TABLE OF CONTENTS
Introduction......................................................................................................................................... 1
Facts................................................................................................................................................. 1
This proceeding............................................................................................................................. 2
Default Judgment............................................................................................................................... 3
Judicial Review................................................................................................................................... 4
Nature of the jurisdiction to review........................................................................................... 4
Grounds here relied upon........................................................................................................... 5
Application for Summary Dismissal.......................................................................................... 7
Discussion of Grounds...................................................................................................................... 8
Challenge to Judge Chettle’s conclusions................................................................................. 8
Acting at the direction of ASIO................................................................................................... 9
Breach of natural justice............................................................................................................. 11
Fabricated evidence; incorrect entry on the plaintiff’s traffic record.................................. 14
Discretion to refuse summary judgment..................................................................................... 16
Orders................................................................................................................................................. 17
HER HONOUR:
Introduction
Facts
On 8 October 2012 the plaintiff was driving a utility on the rear tray of which were stacked many aluminium chairs and some other items. He was driving to a recycling centre in the operation of his business as a recycler. He was stopped by two police officers who had observed the vehicle while driving towards it, and had formed the view that the load may be unsafe. The police officers, the first defendant and another officer, inspected the load and concluded that it was not sufficiently restrained. The first defendant issued to the plaintiff an infringement notice alleging that he had breached a load restraint requirement contrary to s 175(1) of the Road Safety Act 1986. The plaintiff applied to have the charge determined in court and was issued with a charge to that effect on 11 February 2013. The charge was heard at the Melbourne Magistrates’ Court on 1 November 2013 and the plaintiff was convicted and fined $220 with $71 statutory costs. On the same day he filed a notice of appeal to the County Court in which he gave as the reason for the appeal ‘That the appellant is not guilty’. The appeal was, accordingly, an appeal against conviction and sentence pursuant to s 254 of the Criminal Procedure Act 2009. Such an appeal leads to a rehearing in the County Court of the original prosecution.
The appeal came before Judge Chettle in the County Court on 16 September 2014. The charge was reheard with sworn evidence from the two police officers for the prosecution and the plaintiff in his defence. The prosecution case was that the load was easily shifted by hand and that there was not sufficient tension in the ropes that had been used to adequately secure it. The police officers gave evidence that as they observed the vehicle they saw the load move when the plaintiff made a left hand turn. The plaintiff disputed that the load was not adequately secured. His Honour found the charge proved and convicted the plaintiff. He imposed on him the same sentence as that imposed at the Magistrates’ Court.
This proceeding
This proceeding was commenced by originating motion filed on 30 September 2014. It was not served on either defendant until December 2014. The plaintiff deposes that he served the originating motion on the second defendant, the County Court, on 9 December 2014 and on the first defendant on 15 December 2014. The legal representatives for the first defendant confirm that the first defendant was served on this date.[1]
[1]Affidavit of Natalie Vuong sworn 27 March 2015.
The legal representatives for the first defendant filed a notice of appearance on 12 January 2015. The County Court sent a Hardiman letter to the Court dated 9 January 2015.
The plaintiff did not file an affidavit with the originating motion and took no steps to progress it until 16 March 2015 when he filed an application for a stay and a draft default judgment as against the second defendant. Shortly prior to that time, on 12 March 2015, the Court of its own motion had listed another originating motion filed by Mr Goldberg for first directions. That proceeding is Goldberg v Stocker & the County Court S CI 2014 6539 (‘Stocker’). It also concerns an application for judicial review of a County Court determination on appeal from the determination in the Magistrates’ Court of a road safety offence. In that case, as in this, neither party had sought to prosecute the originating motion and the proceeding was listed for directions at the instance of the Court. The solicitors for the first defendant in Stocker on receipt of that notification notified the Court of this proceeding and the Court then listed this proceeding for directions on the same date, 14 April 2015.
Shortly after the plaintiff filed his summons and draft default judgment, the first defendant made application for summary dismissal of the originating motion by application filed 27 March 2015. At the directions hearing on 14 April 2015 I listed all those applications for hearing on 8 May 2015, together with similar applications made in the Stocker proceeding. I heard those matters in each proceeding on that day.
For the reasons which I now set out, I have concluded that the first defendant has established that the plaintiff has no real prospect of success in relation to any of the grounds for judicial review that he advances, and that there is no reason why in the Court’s discretion the proceeding should be not be summarily dismissed. I will make orders to that effect.
Where the same issues arise in each of this proceeding and in the Stocker proceeding, which was commenced later than this proceeding but argued first on 8 May 2015, I have dealt with that issue in detail in my reasons for determination of the Stocker proceeding, also published this day.[2] Those reasons should be read in conjunction with these.
[2]Goldberg v Stocker and anor [2016] VSC 20.
I extend my apologies to the parties for the delay in delivery of these reasons. That delay has been due to the press of other work.
Default Judgment
In this case, as in the Stocker proceeding, the plaintiff initially sought default judgment as against the second defendant. For the same reasons as set out in the Stocker reasons, the application for default judgment as against the second defendant was not appropriate.
The plaintiff also asserted in this case, as in Stocker, that the first defendant was late in filing his notice of appearance.[3] In this case, as compared to Stocker, that assertion is incorrect. The first defendant was served on 15 December 2014, five days later than service in Stocker. As noted in the Stocker reasons, the running of time is suspended for a period of time over the Christmas period by r 3.04 of the Supreme Court (General Civil Procedure) Rules 2015 (‘the 2015 Rules’), which repeat the provision in the Supreme Court (General Civil Procedure) Rules 2005 (‘the 2005 Rules’) that was in force at the relevant time. Taking that suspension into account, the first defendant had two remaining days of the ten specified in the originating motion when time recommenced to run on 10 January 2015. The tenth day occurred on Sunday 11 January 2015. That day was a Sunday, and so pursuant to r 3.01(5) of the 2005 Rules, repeated in the 2015 Rules, time was extended to the following day, Monday 12 January 2015, on which day the notice of appearance was filed. In any event, as discussed in the Stocker reasons, the first defendant could have filed a notice of appearance after the expiration of ten days without leave until judgment was entered or given.
[3]Letter dated 20 April 2015 from the plaintiff to the Court and Affidavit in Response to Summons and Affidavit of Natalie Vuong sworn 20 April 2015 at [18]-[19].
As in the Stocker proceeding, the plaintiff withdrew the application for default judgment after discussion.
Judicial Review
Nature of the jurisdiction to review
In this case as in the Stocker proceeding, the originating motion filed by the plaintiff uses in some respects the language of appeal. He describes himself as ‘the appellant’ and the defendants as ‘the respondents’. As I set out in the Stocker reasons, there is no appeal to this Court from the determination by the County Court of an appeal from the Magistrates’ Court on conviction or sentence. The only avenue of challenge is by way of judicial review pursuant to Order 56 of the 2015 Rules. At the time this originating motion was filed the relevant rules were the 2005 Rules, which were in substantially the same form as the 2015 Rules, subject to there being no requirement to file an affidavit with the originating motion at the time this originating motion was filed.
As in the Stocker proceeding, I am satisfied that, although the originating motion uses some of the terminology applicable to appeal, it is plain from the originating motion as a whole, the plaintiff’s other written material and his oral submissions, that he understands that he is seeking judicial review. In particular, paragraph 7 of the originating motion refers to relief in the nature of certiorari and paragraph 8 states that the claim is made under Order 56 and is for judicial review.
I repeat the further comments I made in relation to the nature of the jurisdiction to review in the Stocker reasons.
Grounds here relied upon
In addition to paragraphs 7 and 8 of the originating motion to which I refer above, the originating motion sets out six paragraphs by way of grounds. They are as follows:
1.The Appellant was denied Natural Justice by an order made where the was no evidence before the Court which could lead to such finding against the Appellant. The order imposed an impermissible disability and discrimination by exercise of Judicial Act on the Appellant, when in a legal system an inequality is introduced in the enjoyment of certain rights.
2.The Honourable Judge Chettle prejudiced the Appellant’s legitimate rights and expectations by His unequal treatment. His Honour Judge Chattle (sic) failed in His duty to disclose before the court hearing about his close friendship with a former Magistrate MR C. MACLEAD. MR C MACLEOD on the 3rd February 2000 on order from A.S.I.O. imposed impermissible act of disability and discrimination on Appellant by way of making an order to deny the said Appellant his right to earn a living. It is a common law duty for the Court to act fairly, in the sense of according fairness, in the making an order, which affects rights, interests and legitimate expectations. The Appellant’s rights to Natural Justice were destroyed, defeated and prejudiced by this order.
3.Honourable Judge His Honour Chattle (sic) prejudiced the Appellant’s legitimate rights and expectations by His unequal treatment. He thereby discriminated against the Appellant in enjoyment of certain rights by neglecting or refusing to disclose His friendship with a former Magistrate Mr C. Macleod. Such failure to disclose that information to the Appellant led to an act of prejudice and discrimination. If the Appellant knew those facts before hearing he would have moved a motion for His Honour Chattle (sic) to discharge himself from hearing this case.
4.How any reasonable judge could come to such conclusion and made such an unreasonable decision on the evidence before Him?
5.Why did His Honour Chattle (sic) fail to apply the rule of evidence to the case before Him and made and (sic) order against the Appellant on the basis of verbal and fabricated evidence presented by the Respondent?
6.It is a common law duty for the Court to act fairly, in the sense of according fairness, in the making an order, which affects rights, interests and legitimate expectations. The Appellant’s rights to Natural Justice were extended to the protection of legitimate expectations which were destroyed, defeated and prejudiced by this order.
In addition to these grounds, the plaintiff relies on the grounds asserted in his Affidavit in Support of Summons sworn and filed 16 March 2015 (‘affidavit in support’); Affidavit in Response to Summons and Affidavit of Natalie Vuong sworn and filed 20 April 2015 (‘affidavit in response’); his Affidavit in Response to Application for the First Defendant for Summary Dismissal sworn and filed 4 May 2015 (‘further affidavit in response’); his written submission and his oral submissions. I have taken all this material into account.
At paragraph 6 of the affidavit in support, the plaintiff states that an issue that needs ‘to be tested before the Supreme Court’ is ‘apparent harassment and persecution by a number of police officers from Victoria Police acting on the orders from ASIO which were relied (sic) to them by the former Commissioner of Police’. In apparent support of this allegation, the plaintiff asserts in the following paragraph of this affidavit that the informant, Sergeant Shenton, benefitted from the laying of this charge against him and that over the years other police officers that ‘were involved in harassment and persecution of the Appellant’ have also benefitted from that harassment and persecution. There are further references to ASIO involvement in other written material filed by the plaintiff.
The ‘friendship’ between Judge Chettle and former magistrate Macleod asserted by the plaintiff in paragraph 3 of the originating motion is asserted in the plaintiff’s affidavit in support to be a ‘close personal friendship’[4]. This assertion is repeated in other written material filed by the plaintiff. The plaintiff asserts in his further affidavit in response that Judge Chettle said he knew Mr Macleod ‘very well’[5].
[4]Affidavit in Support of Summons sworn by the plaintiff and filed 16 March 2015 at [8].
[5]Affidavit in Response to Application for the First Defendant for Summary Dismissal filed 4 May 2015 at [8].
Paragraphs 7 and 11-12 of the plaintiff’s affidavit in response and his oral submissions clarify that the ‘fabricated evidence’ to which he refers in paragraph 5 of his originating motion is his record of convictions. The plaintiff contends that the record relied upon at the Magistrates’ Court and on appeal handed to Judge Chettle contained an incorrect entry that he was convicted at the Latrobe Valley Magistrates’ Court on 29 November 2010 of multiple driving offences including driving an unregistered motor vehicle and unlicensed driving.
Application for Summary Dismissal
The first defendant seeks that the originating motion be summarily dismissed pursuant to s 62 of the Civil Procedure Act 2010 (‘CPA’). Section 62 of the CPA provides:
A defendant in a civil proceeding may apply to the court for summary judgment in the proceeding on the ground that a plaintiff’s claim or part of that claim has no real prospect of success.
The first defendant contends that the proceeding has no real prospect of success because:
The Plaintiff has not provided or referred to any substantive evidence of:
(a) a denial of natural justice; or
(b)any error which is amendable to relief in the nature of certiorari.[6]
[6]Application for summary judgment filed 27 March 2015.
Although this application for judicial review has its origin in a criminal prosecution, an application for judicial review is a civil proceeding. Accordingly, the first defendant is at liberty to seek to invoke s 62 of the CPA. The sections that follow s 62 of the CPA set out the powers of a court on such application. Section 63 confers the jurisdiction on a court to give summary judgment if satisfied that, in the case of an application by a defendant, the claim or part of the claim has no real prospect of success. Section 64 empowers a court to order that the civil proceeding proceed to trial even if the court considers that the claim has no real prospect of success where the court is satisfied that the proceeding should not be disposed of summarily because:
(a) it is not in the interests of justice to do so; or
(b)the dispute is of such a nature that only a full hearing on the merits is appropriate.
In Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd[7] (‘Lysaght), the Court of Appeal considered the meaning of the phrase ‘no real prospect of success’ in ss 63 and 64 of the CPA. The Court of Appeal by majority, Warren CJ and Nettle JA (as he then was), held that:
The test for summary judgment under s 63 of the Civil Procedure Act 2010 is whether the respondent to the application for summary judgment has a ‘real’ as opposed to a ‘fanciful’ chance of success.[8]
[7][2013] VSCA 158.
[8]At [35(a)].
The Court held that the test was ‘to some degree a more liberal test than the “hopeless” or “bound to fail” test that previously applied’. Nevertheless the Court by majority held that:
It must be borne in mind that the power to terminate proceedings summarily should be exercised with caution and thus should not be exercised unless it is clear that there is no real question to be tried…[9]
[9]At [35(d)].
It follows that the first defendant must show that there is no real question to be tried to succeed in his application for summary judgment. If that is shown, then the plaintiff may seek to show that, nevertheless, for one of the reasons stipulated in s 64 his claim should proceed to a full hearing. I now apply these principles to the application.
Discussion of Grounds
The matters asserted as grounds for judicial review in the originating motion and in the plaintiff’s further material and submissions fall into four broad categories, as follows. The plaintiff contests the appropriateness of Judge Chettle’s conclusion that he was guilty; he asserts that the police and former magistrate Macleod acted at the direction of ASIO; he asserts that Judge Chettle breached the requirements of natural justice by failing to disclose what the plaintiff describes as the Judge’s ‘close personal friendship’ with Mr Macleod; and he asserts a denial of natural justice in the production and reliance on an incorrect criminal record, which he contends was fabricated.
Challenge to Judge Chettle’s conclusions
The plaintiff asserts in paragraph 1 of the originating motion that there was no evidence before Judge Chettle which could have led to his finding against the plaintiff.
It is incorrect to state there was no evidence to support the prosecution case. On the contrary, both the first defendant as informant and the other police officer in the car when the plaintiff was issued with the infringement notice gave sworn evidence, and were cross examined by the plaintiff. The prosecution also put into evidence photographs taken by those police officers at the time. Given this, the nub of paragraph 1 of the originating motion can only be that the Judge should not have accepted their evidence over the evidence of the plaintiff, also sworn, that the load was not insecure. The plaintiff’s contentions to this effect are summarised in paragraph 5 of his affidavit in support.
As I set out in more detail in the Stocker reasons, judicial review is not available to challenge a conclusion reached by a court or tribunal below on the merits i.e. a conclusion reached after assessing the evidence, unless there was no evidence at all which could support the conclusion or it was manifestly unreasonable. The plaintiff asserts that Judge Chettle’s conclusion was unreasonable by paragraph 4 of the originating motion. In my view, the plaintiff has no real prospect of success in this assertion. There was plainly evidence on the basis of which the Judge could reach the conclusion he did, being the evidence of the police officers’ of their observations, their evidence that they could move the load, and the photographs they took. The fact that the plaintiff disagrees with that conclusion does not mean it is unreasonable in the necessary sense.
For these reasons, I accept the submission of the first defendant that the plaintiff has no real prospect of success in respect of the grounds asserted in paragraphs 1 or 4 of the originating motion or paragraph 5 of his affidavit in support. Subject to the question of the discretion conferred by s 64 of the CPA to allow a proceeding to continue to a full hearing on the merits although it has no real prospect of success,
I would summarily dismiss these grounds.
Acting at the direction of ASIO
The plaintiff asserts at paragraph 6 of his affidavit in support that he has been persecuted and harassed by ‘a number of police officers from Victoria Police acting on the orders from A.S.I.O. which were relied (sic) to them by the former Commissioner of police’. He does not say specifically that he makes this allegation against the first defendant, but does imply in paragraph 7 of that affidavit that the first defendant personally benefited from charging the plaintiff.
In paragraph 2 of the originating motion and in paragraph 8 of his affidavit in support, the plaintiff asserts that former magistrate Mr Macleod acted on orders from ASIO in his determination against the plaintiff on 3 February 2000. The plaintiff asserts in his affidavit in response that former magistrate Mr Macleod was forced to resign as a result of that order.[10]
[10]Affidavit in Response to Summons and Affidavit of Natalie Vuong sworn 20 April 2015 at [19].
The plaintiff has made allegations of persecution at the direction of ASIO in other proceedings, including the Stocker proceeding. His assertions that he has been the subject of persecution at the hands of ASIO were exhaustively considered by the Court of Appeal in Goldberg v Laughlin and the County Court of Victoria.[11] In that case, the President of the Court of Appeal, Maxwell P, was very critical of the plaintiff in making such allegations without pursuing the available avenue for investigation of them, by complaint to the Inspector-General of Intelligence and Security. I have set out his comments in that regard in the Stocker reasons. In this case, as in Stocker, the plaintiff has not adduced any evidence to support his assertion of ASIO involvement. For the same reasons as in the Stocker proceeding, I do not consider that the plaintiff has any real prospect of success in judicial review based on an assertion that the current prosecution or the determination against him by Mr Macleod in 2000 (to the extent that is relevant to his apprehended bias allegation against Judge Chettle) was at the direction of ASIO.
[11][2012] VSCA 106.
Indeed, his case to that effect in this proceeding is even weaker than in Stocker. In that proceeding, he had raised these matters before the court whose decision he seeks to challenge i.e. before Judge Tinney. The plaintiff contends that he also did so in this case, before Judge Chettle. That is incorrect. The transcript does not show any reference to ASIO involvement. In particular, the plaintiff did not put the allegation of ASIO involvement to the prosecution witnesses in cross examination and nor did he raise it in the course of the discussion about sentence with Judge Chettle after the Judge said that he knew Mr Macleod[12]. In the absence of the issue even being raised below, it would be very difficult to raise it now on a judicial review of the hearing below.
[12]T 43.30- T 44.19.
Breach of natural justice
This ground is detailed in paragraphs 3 and 4 of the originating motion, and paragraph 6 which is a rolled up assertion of breach of natural justice.
It is a requirement of natural justice that a judicial officer not be biased, and apprehended bias is a basis on which an application may be made to a judicial officer that he or she disqualify him or herself from determining a matter. Here the allegation is that Judge Chettle did not disclose before the court hearing his ‘close friendship’, or ‘close personal friendship’, with former magistrate Macleod. The implication is that that connection would have justified an application that Judge Chettle disqualify himself, because Mr Macleod had previously determined a matter against the plaintiff at the direction of ASIO. The plaintiff contends in paragraph 3 of the originating motion that had he known of the friendship prior to the hearing, he would have made that application.
The transcript shows that the plaintiff first raised the determination against him by former magistrate Macleod in the course of discussion about sentence.[13] Judge Chettle asked the plaintiff for some details, in the course of which the plaintiff noted that he did not know how long Judge Chettle had been on the bench and in apparent response the Judge said ‘I know Mr Macleod’.[14] After the plaintiff said that the matter determined by Mr Macleod had been at the instance of the Office of Fair Trading, the Judge cut him short and said that that matter was not relevant to the matter before him.
[13]T 43.30.
[14]T 44.3-13.
I do not consider that the plaintiff has any real prospect of success in relation to these allegations of breach of natural justice by reason of non-disclosure of the friendship as a ground for judicial review.
First, it is not the case that Judge Chettle failed to disclose that he knew Mr Macleod. He did do so. He did not do so prior to the hearing, but there is nothing in the transcript, and the plaintiff has not adduced any evidence in this proceeding, to show why he would have had any reason to do so. There is nothing to show that the plaintiff made any enquiry of Judge Chettle prior to the hearing as to whether he knew former magistrate Macleod; Mr Macleod was not the magistrate who convicted the plaintiff of the charge under appeal; the matter that Mr Macleod determined was not a criminal prosecution and so did not appear on the plaintiff’s criminal record which was made available to the Judge once he found the charge proved; and it is an inevitable consequence of practice in the legal profession that many judges and magistrates, current and former, know each other. It is not necessary and would be completely unworkable for judges to routinely disclose which magistrates they know in any capacity prior to all hearings before them.
Next, there is nothing to suggest that the fact that Judge Chettle knows Mr Macleod would have been an arguable basis for an application that he disqualify himself from hearing the appeal. In Ebner v Official Trustee in Bankruptcy[15] the High Court held that the test for disqualification for apprehended bias is that:
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. [16]
[15](2000) 205 CLR 337.
[16]Joint judgment of Gleeson CJ, Gummow, McHugh and Hayne JJ at [6], citations omitted.
The Court in that case held that there are two steps to such an application :
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.
The first step here is presumably the assertion that Judge Chettle has a ‘close personal friendship’ with former magistrate Macleod. There is, however, no evidence at all, other than the plaintiff’s assertion, that Judge Chettle’s admitted knowledge of Mr Macleod arose from a friendship, let alone a close personal one. All that Judge Chettle said was that he knew Mr Macleod, and that could be in any capacity. As noted earlier, many judges know many magistrates. The mere fact that Judge Chettle knows former magistrate Macleod would not have been sufficient basis for an application that he disqualify himself. Even if there was evidence that the relationship between them was close, then such an application would not in my view have had any real prospect of success given that the matter before Judge Chettle was not an appeal from Mr Macleod and prior civil determination against the plaintiff by Mr Macleod was legally irrelevant to sentence on a road safety charge.
The plaintiff would also have failed on the second step had he made any such disqualification application. The connection between the prior determination by former magistrate Macleod and the current charge in the plaintiff’s mind is the involvement of ASIO in both. He did not adduce any evidence in the appeal before Judge Chettle of any ASIO involvement, and did not even raise it when he referred to the prior determination by Mr Macleod. He has not adduced any such evidence in this proceeding. He could not have shown the necessary logical connection to establish a reasonable apprehension of bias. The example that the plaintiff gives in his affidavit in support [17]of a case where it was necessary for a judicial officer with no connection to a particular magistrate to hear a charge against that magistrate does not apply- it concerned a criminal prosecution of a magistrate.
[17]At [9].
Finally, the plaintiff did in fact have an opportunity, although a belated and limited one, to make an application to Judge Chettle that he disqualify himself on the basis that he knew former magistrate Macleod. The discussion about Mr Macleod, including Judge Chettle saying that he knew him, occurred prior to the conclusion of the hearing by Judge Chettle pronouncing his orders. The plaintiff made no such application.
For all these reasons, I am satisfied that the plaintiff has no real prospect of success on the grounds set out in paragraphs 2 and 3 of the originating motion. Subject to the s 64 discretion, I would grant summary dismissal in respect of them.
Fabricated evidence; incorrect entry on the plaintiff’s traffic record
In paragraph 5 of the originating motion the plaintiff asserts an error of law by Judge Chettle in relying on ‘verbal and fabricated evidence’ by the prosecution. It appears that by this reference means his traffic record, produced by the prosecution only after the offence was found proved. For completeness, however, I first note that, to the extent this is a complaint about the evidence given by the prosecution, the plaintiff cross examined the police officers in the hearing before Judge Chettle on their evidence as to the safety of the load. He did not, however, put to them that their evidence was fabricated. He put to the first defendant that there was a pattern of harassment against him by officers from the same police station, and the first defendant answered that at the time he issued the infringement notice he was not aware of any similar prior charges against the plaintiff although he now was.[18]
[18]Transcript of the hearing before Judge Chettle, being Exhibit OPP-5 to the affidavit of Natalie Vuong sworn 27 March 2015 (henceforth ‘T’) at 12.12-17.
If the alleged error relates solely to his traffic record, the plaintiff has not adduced any evidence that the entry recording that he was convicted at the Latrobe Valley Magistrates’ Court on 29 November 2010 was fabricated, in the sense of deliberate falseness, as opposed to an error. The letter from that court dated 30 September 2014 which he exhibits to his affidavit in response confirms that he was not so convicted, and states that VicRoads have confirmed that the entry is an error, and is now removed. The first defendant concedes that the entry was an error.
In my view, the plaintiff has no real prospect of success in his contention that the production of the record containing this incorrect entry was a denial of natural justice, or that he was so prejudiced by it that discretionary relief by way of judicial review would be ordered.
First, there is no evidence of fabrication, as opposed to error capable of innocent explanation. Secondly, if the incorrect entry was relied upon by the magistrate in his original conviction at the Magistrates’ Court, that was overtaken by the appeal to the County Court. Next, the plaintiff was given an opportunity by Judge Chettle in that appeal to comment on every entry in his traffic record; the plaintiff challenged the correctness of the Latrobe Valley entry; and Judge Chettle noted that that entry was disputed.[19] No arguable breach of natural justice is shown.
[19]T 39.6 –T.40.10.
Finally, given the care with which Judge Chettle dealt with the record, I do not consider that the plaintiff has any real prospect of success in contending that the inclusion of the incorrect entry materially affected either the recording of a conviction against him, as opposed to finding the offence proved without conviction, or his sentence.
In relation to the recording of a conviction, Judge Chettle said that he was required to record a conviction rather than merely find the offence proved because the plaintiff had been previously found guilty without conviction of similar offence.[20] That previous offence was admitted by the plaintiff.[21] No error is asserted in respect of the approach taken by Judge Chettle to recording a conviction, and none could in my view be shown.
[20]T 43.12-17.
[21]T 40.11-17.
In relation to the relevance of the record to sentence, Judge Chettle noted that the Latrobe Valley convictions were disputed and, in any event, concluded after going through the whole record with the plaintiff that it did not show anything serious.[22] Given these matters, the plaintiff has no real prospect of success in his contention that the incorrect entry affected the sentence against him. The only factor that might suggest to the contrary is that Judge Chettle imposed the same fine as had been imposed in the Magistrates’ Court, on the assumption that the magistrate was influenced by the Latrobe Valley entry. However, the plaintiff told Judge Chettle that he disputed the entry before the magistrate as well and he has not produced any evidence by way of the transcript or otherwise that, nevertheless, the magistrate relied on the entry. Further, the fine was at the lower end of the range[23] and was imposed after a unexceptionable exercise of the sentencing discretion in which Judge Chettle obtained some personal details from the plaintiff and endeavoured to understand the economic consequence of the fine on the plaintiff having regard to his earnings from recycling.[24] For all these reasons, imposing the same fine as imposed in the Magistrates’ Court was plainly open to Judge Chettle.
[22]T 41.19.
[23]T 42.21-24.
[24]T 43.20-25.
In summary, I do not consider that the plaintiff has any real prospect of success in relation to the ground asserted in paragraph 5 of the originating motion, and, subject to consideration of the s 64 discretion, would grant summary dismissal in respect of it. I now turn to that discretion.
Discretion to refuse summary judgment
I conclude that the first defendant has shown that all the grounds in the originating motion and set out in the plaintiff’s other written material have no real prospect of success. It follows that they are liable to be summarily dismissed. Pursuant to s 64 of the CPA, the Court has a discretion nevertheless to refuse summary judgment if satisfied that the originating motion should not be disposed of summarily because:
(a) it is not in the interests of justice to do so; or
(b)the dispute is of such a nature that only a full hearing on the merits is appropriate.
For similar reasons to those I set out in the Stocker reasons, I do not consider that the discretion to refuse summary judgment should be exercised. The plaintiff does not advance any specific reason for the exercise of the discretion. It is on occasion exercised in a proceeding where further conventional interlocutory steps, for example, discovery, may reveal further relevant information. Nothing of that sort is suggested in this case.
Given the suspicions that the plaintiff holds as to persecution at the direction of ASIO, I appreciate that he may consider that the dispute is of such a nature that only a full hearing on the merits is appropriate. Although the allegations are very serious the plaintiff has adduced no evidence to support them, however, other than his own assertion and he has not indicated that there are avenues that he proposes to utilise to obtain such evidence. In fact, he implies that even if further opportunity were given, he would not adduce evidence to support his assertions.[25] A trial in these circumstances would be futile. Accordingly, the allegations are not a reason to refuse summary judgment, and, on the contrary, the absence of evidence to support them supports summary judgment.
[25]Affidavit in response at [17].
Accordingly, I will dismiss the whole of the proceeding. The plaintiff’s application for a stay until the determination of the proceeding will fall away as a result.
Orders
I will dismiss the proceeding. I will hear the parties in relation to costs if a costs order is sought and not agreed.
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