JUDGE:	J FORREST J
WHERE HELD:	Melbourne
DATE OF HEARING:	22 August 2016
DATE OF JUDGMENT:	30 August 2016
CASE MAY BE CITED AS:	Goldberg v Stocker & Anor
MEDIUM NEUTRAL CITATION:	[2016] VSC 503

JUDICIAL REVIEW – Appeal to County Court following conviction and sentence by a magistrate – Traffic offences - s 61(1)(c) Road Safety Act 1986 - Clause 248 Road Safety Vehicle Regulations 2009 - Self represented litigant not permitted to use the Bar Table – Inherent right of a judge to regulate the proceedings of his or her court - O’Toole v Scott (1965) AC 939 - Gamester Pty Ltd v Lockhart(1993) 112 ALR 623 - Procedural fairness - Re Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) 214 CLR 1 - Obligations of a judge in a trial involving a self-represented litigant - Tomasevic v Travaglini & anor [2007] VSC 337 - Appearance of impartiality - Reg v Leicester JJ ex p Barrow (1991) 2 QB 260 - Ebner v The Official Trustee in Bankruptcy (2000) 205 CLR 337- Isbester v Knox City Council (2015) ALJR 609 – Fair-minded lay observer - British American Tobacco v Laurie (2011) 242 CLR 283 – Extent of knowledge of fair-minded lay observer - Johnson v Johnson (2000) 201 CLR 488.

APPEARANCES:	Counsel	Solicitors
For Mr Goldberg	In person
For Mr Stocker	Mr P Pickering	Vallie Anscombe, Acting Solicitor for Public Prosecutions

HIS HONOUR:

Introduction

This application for judicial review raises two points:

(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?

Mr Goldberg was dissatisfied with the decision of a magistrate in relation to two minor traffic offences (one which turned out to be unknown to law). As of statutory right, he appealed to the County Court on sentence alone.

On the day of the hearing of the appeal, he sought to amend his application to appeal both the conviction and sentence. This was opposed by counsel for Mr Stocker, the informant, and respondent to the appeal.

The County Court judge permitted counsel (who was robed) for Mr Stocker to conduct his case from the Bar table. His Honour, however, would not permit Mr Goldberg to use the Bar table and he conducted his case from the body of the Court.

On this originating motion, Mr Goldberg sought to challenge the refusal of the judge to grant his application for leave to appeal against conviction. An associate justice heard an application by Mr Stocker for summary dismissal of the originating motion and concluded that only one of the ten grounds could be maintained at trial:

The Honourable Judge Tinney prejudiced the Appellant’s…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Goldberg v Stocker

Details

AGLC: Goldberg v Stocker [2016] VSC 503
Case: [2016] VSC 503
Decision Date: 30 August 2016

CaseChat Overview and Summary

Goldberg, the appellant, brought a case against Stocker, the respondent, in the County Court of Victoria, seeking judicial review of a decision made by a magistrate in a traffic offence case. The appellant, self-represented, argued that the magistrate's decision to not allow him to use the Bar Table during the proceedings was improper and prejudiced his case. The central legal issues revolved around whether the judge's decision to not allow the appellant to use the Bar Table was procedurally unfair and whether it breached the inherent right of a judge to regulate their court.

The court examined the case against the backdrop of established legal principles, including the judge's inherent right to regulate their court, as seen in O’Toole v Scott and Gamester Pty Ltd v Lockhart. The court also considered the obligations of a judge in trials involving self-represented litigants, as discussed in Tomasevic v Travaglini & anor. The appellant argued that the judge's refusal to allow him to use the Bar Table was a breach of procedural fairness, as per Re Minister for Immigration and Multicultural Affairs; Ex parte Lam. The court needed to determine whether the appellant's rights were prejudiced by this decision.

The County Court held that the judge's decision to not allow the appellant to use the Bar Table was within the inherent jurisdiction of the court and did not breach any legal principles. The court found that the judge's decision was procedurally fair, and the appellant's rights were not prejudiced. The court concluded that the appearance of impartiality was not compromised and that the appellant had not demonstrated any actual bias or reasonable suspicion of bias. The appeal was dismissed, and the original decision of the magistrate was upheld.

Orders