Grima v MacCallum
[2014] VSC 473
•23 September 2014
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
PRACTICE COURT
S CI 2014 04946
| FRANK GRIMA | Plaintiff |
| v | |
| MARY-ANNE MACCALLUM, A MAGISTRATE OF THE MAGISTRATES’ COURT OF VICTORIA | First defendant |
| and | |
| WYNDHAM CITY COUNCIL | Second defendant |
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JUDGE: | BELL J |
WHERE HELD: | MELBOURNE |
DATE OF HEARING: | 17 September 2014 |
DATE OF JUDGMENT: | 23 September 2014 |
CASE MAY BE CITED AS: | Grima v MacCallum |
MEDIUM NEUTRAL CITATION: | [2014] VSC 473 |
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ADMINISTRATIVE LAW – judicial review – application for order in the nature of prohibition – alleged reasonable apprehension of apparent bias of presiding magistrate – fragmentation of criminal process – Hardiman principle – participation of court or tribunal in judicial review proceedings – costs – Supreme Court (General Civil Procedure) Rules 2005, O 56.
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APPEARANCES: | Counsel | Solicitors |
| For the plaintiff | Mr S Matters | Griffin Law Firm |
| For the second defendant | Mr J Foster | Maddocks Lawyers |
| For the first defendant | No appearance |
HIS HONOUR:
Arising out of a criminal proceeding in the Magistrates’ Court of Victoria on 15 September 2014, the plaintiff brought an application for judicial review against the defendants under O 56 of the Supreme Court (General Civil Procedure) Rules 2005. It was alleged that there was a reasonable apprehension that the second defendant, Mary-Anne MacCallum, Magistrate, was apparently biased against the plaintiff in that proceeding. The proceeding before her Honour had been adjourned for a short period to enable the application to be made.
When the application came on before me in the Practice Court on 17 September 2014, there were no disputed issues of fact and the issues of law were relatively confined. As the parties consented, I decided to hear and determine the application on a final basis in the Practice Court.
Whilst submissions were being made by counsel for the plaintiff, the Prothonotary brought into court an email message sent on behalf of her Honour in relation to the issues between the parties in the proceeding before me. Without objection by the parties, I read the message in order to understand what it was, which was not clear. I ascertained that the message had been sent by an administrative officer of the Magistrates’ Court to the Prothonotary. It forwarded an email which had been sent to that officer by a senior magistrate with whom her Honour had discussed the application before this court. The forwarded email recorded that, after discussing ‘the usual procedures regarding abiding the outcome of the Court, but upon reflection’, her Honour asked that this court be advised of various matters ‘as a matter of urgency’. Then a number of contentious assertions were made which, without actually saying so, went to why her Honour was not apparently biased. Included were assertions about ‘the strategy being adopted by the defence’ and an assertion that the conduct of the defence lawyers ‘towards the Bench was ‘inappropriate and intimidatory’.
After reading the message, I brought its contents to the attention of the parties and asked my associate to give them a copy. After consideration, they both submitted that her Honour could not continue to hear the proceeding in the Magistrates’ Court. I accepted that submission.
As established by R v The Australian Broadcasting Tribunal; Ex parte Hardiman,[1] the usual and proper practice for the court or tribunal to take in judicial review proceedings is not to participate as a party but to abide by the decision of the court. There may be occasions when it is appropriate for the court or tribunal to provide factual or like information to the court. But it is generally not appropriate for the court or tribunal to ‘enter the fray’ and make contentious submissions as to the merits of the issues in the case, as her Honour did in the present case.
[1] (1980) 144 CLR 13, 35-6 (Gibbs, Stephen, Mason, Aickin and Wilson JJ).
The foundation of this principle is that it is very difficult, and usually impossible, for the tribunal or court to participate in a judicial review proceeding without creating a reasonable apprehension of bias. In most cases, the only safe way of protecting the continuing jurisdiction of the court or tribunal is to abide by the outcome of the application. It is the responsibility of the party opposing the application to present evidence and make submissions as to the matters in issue, including evidence and submissions of the kind to which her Honour referred in the forwarded email. Moreover, a forwarded email is hardly an appropriate way for a court or tribunal to present evidence or make submissions to this court, even given that the application was being heard in the Practice Court.
In the present case, the email message acknowledged ‘the usual procedures regarding abiding the outcome of the court’. Despite these usual procedures and ‘upon reflection’, her Honour caused the message to be sent. With respect, there was nothing in the nature of the application in the present case justifying any departure from the usual procedures. Both the sending of the message and its argumentative contents inevitably created a reasonable apprehension of apparent bias on the part of her Honour.
As it followed that an order in the nature of prohibition would be issued, it was necessary to determine the issue of costs. The plaintiff submitted that the second defendant should pay his costs. The second defendant submitted that there should be no orders as to costs.
In the sequence of the events which happened, it became clear that an order in the nature of prohibition would be issued before I had heard opposing submissions from the second defendant in relation to the merits of the application for judicial review. Moreover, the second defendant was in no way responsible for the sending of the email message which gave rise to the order for prohibition. For the purpose of determining the issue of costs, it was necessary to determine whether the application for judicial review would likely have succeeded or failed upon the grounds advanced by the plaintiff. Counsel on behalf of the second defendant made very cogent submissions as to why the plaintiff’s application would have been dismissed in the exercise of the court’s discretion and why the court would have decided that there was no reasonable apprehension that her Honour was biased against the plaintiff.
Those submissions first relied upon the strong rule against the fragmentation of criminal proceedings, as applied in Young v County Court of Victoria & Director of Public Prosecutions.[2] According to that rule, ‘most exceptional’ circumstances are required before this court will interfere with a part-heard proceeding in the Magistrates’ Court.[3]
[2][2002] VSC 43 (27 February 2002) (Bongiorno J).
[3]Ibid [6].
I would likely have held that the present case fell into the most exceptional category. The criminal proceeding before her Honour had only just commenced. Twenty four of the 25 prosecution witnesses were still to give evidence. The proceeding would likely have had a duration of at least 10 days. The plaintiff had acted without delay in bringing the application for judicial review in this court. In the circumstances, I would likely have determined that the plaintiff should not be confined to his rights of appeal.
Moving to the second issue, according to the plaintiff, a reasonable apprehension of apparent bias was created because her Honour had placed undue pressure upon the plaintiff in relation to the conduct of the defence case. At the start of the hearing on 15 September 2014, counsel for the defence announced that the prosecution was being put to its proof and also referred to a number of specific issues. Wanting more details, her Honour said:
My issue is that when I am listening to the evidence that is called, unless I understand what case – your client is maintaining his right to not say anything, but unless I understand what he says, I can’t understand the defence and it would be my view that a view is not going to assist me in understanding that, and if your client is of the view that he wants to maintain his silence and put the prosecution to that proof and it goes against him, then he will be, and I am sure you have explained to him --- facing a costs order if he wants to play it that way. It does not assist the court in understanding what his defence is, and I assume he is here because he has a defence that he is seeking to agitate.
MR MATTERS: Yes. The primary defence, so to speak, is he is actually making the prosecution prove their case.
HER HONOUR: Then costs is potentially a big issue for him.
MR MATTERS: If he is unsuccessful.
HER HONOUR: If he is unsuccessful.
Her Honour made a similar point a little later:
It just sounds to me like an absolutely – it sounds like – I mean, that is extraordinary for this court, so many witnesses, and what it tells me is that again, and I can only give you the warning about costs, if your client wants to play it, so to speak, or put the prosecution to their proof and it ends up being 24 witnesses and this huge case when there’s summary matters before the court, summary criminal matters, and the costs are way in excess of potentially – and I am not pre-judging it ---
MR MATTERS: No.
HER HONOUR: --- but penalties that might be paid if he ---
MR MATTERS: Yes.
HER HONOUR: I can only give the warning again.
In these circumstances, I would likely have upheld the plaintiff’s submission that her Honour’s remarks created a reasonable apprehension of apparent bias. It is understandable that her Honour was concerned to ensure that the limited resources of the court were used efficiently and that the hearing of the charges brought against the plaintiff went no longer than was reasonably necessary. That concern would have justified appropriate inquiry into the nature the plaintiff’s defence and its implications for the conduct of the hearing, as regularly occurs at post-committal directions hearings and at the commencement of trials of serious criminal charges in this court. But the plaintiff was presumed to be innocent and had a right to remain silent. As the prosecutor, the second defendant had the onus of proving beyond reasonable doubt that the plaintiff was guilty of the offences charged. The plaintiff was entitled to put the second defendant to its proof and clearly announced that that was what he would be doing. At the end of the hearing, it might have been possible to conclude that the plaintiff had conducted a time-wasting defence or, without prejudice to his rights or intended cross-examination of witnesses, could have given more details of the nature of the defence than he did. Under s 401(2) of the Criminal Procedure Act 2009, that might have been relevant to the issue of costs. But her Honour went well beyond permissible reference to these issues when, at the start of the proceeding, she twice gave a ‘warning’ about the conduct of the defence. With respect, there was nothing exceptional or unusual about the submissions of the plaintiff justifying this course. Any legitimate concern about the intended conduct of the defence case could have been dealt with by other means and without creating a reasonable apprehension of apparent bias. While her Honour said that she was not ‘pre-judging’ the question of costs, this did not remove the reasonable apprehension of bias which was created by the particular strength of the language that she used. For these reasons, I would likely have decided that this apprehension went not just to the issue of costs at the end of hearing but to the trial of the criminal proceeding generally.
In all of the circumstances, I made an order in the nature of prohibition and ordered the costs of the application of the plaintiff to be paid by the second defendant.
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