Guss v Magistrates' Court of Victoria at Dandenong

[2005] VSC 153

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 8164 of 2004

ANTONY DAVID GUSS	Plaintiff
v
THE MAGISTRATES' COURT OF VICTORIA AT DANDENONG AND HAROLD CHARLES JACOTINE	Defendants

No. 8165 of 2004

JOSEPH GUSS	Plaintiff
v
THE MAGISTRATES' COURT OF VICTORIA AT DANDENONG AND HAROLD CHARLES JACOTINE	Defendants

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JUDGE:	WILLIAMS J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	13 AND 14 APRIL 2005
DATE OF JUDGMENT:	11 MAY 2005
CASE MAY BE CITED AS:	GUSS v THE MAGISTRATES' COURT OF VICTORIA AND JACOTINE
MEDIUM NEUTRAL CITATION:	[2005] VSC 153

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ADMINISTRATIVE LAW – Judicial review – Relief in the nature of certiorari – Application for review of interlocutory decision in criminal proceeding – Whether fragmentation of criminal proceeding justified - Whether delay constitutes special or exceptional circumstances – Applicant’s  responsibility for delay.
MAGISTRATES’ COURTS – Prosecution of applicants for offence of disposal of property seized by Sheriff – Walking possession – Application for review of decision to reject no case submission.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr L. Watts	Poulton Elliot and Grey
For the Second Defendant	Mr B. Dennis	Victorian Government Solicitor

HER HONOUR:

1. Applications in two proceedings are before the Court. The plaintiffs are Mr Joseph Guss and his son, Mr Antony Guss, respectively. Each was charged with an offence, under s 111(7B) of the Magistrates’ Court Act 1989 (“the Act”), of disposing of property seized by the Sheriff, without having obtained his written consent. The hearings in relation to the charges were conducted together in the Magistrates’ Court at Dandenong on 27 and 28 July 2004 and were adjourned to enable the applications to be brought.

1. The plaintiffs seek relief in the nature of certiorari and prohibition in relation to the learned magistrate’s decision, on 28 July 2004, to reject a no case submission made on behalf of them both (“the magistrate’s decision”).  They seek orders quashing the magistrate’s decision and dismissing the charges.

1. The first defendant has adopted the customary practice[1] of advising the Court that it will abide by the Court’s decision, not participating in the proceedings, other than in relation to the question of any award for costs against it.

   [1]In accordance with the principles enunciated in R v Australian Broadcasting Tribunal; ex parte Hardiman (1980) 144 C.L.R. 13.

Availability of judicial review in interlocutory criminal proceedings

1. The magistrate’s decision was interlocutory.  The courts should be reluctant to interrupt the normal course of procedure in criminal matters.[2] Judicial review of interlocutory decisions in relation to evidence or procedure in criminal proceedings will be refused, unless the circumstances are special or exceptional.[3]

   [2]Sankey v Whitlam (1978) 142 C.L.R. 1 at 26 per Gibbs, A.C.J.; Shapowloff v Dunn [1973] 2 N.S.W.L.R. 468 at 470 per Jacobs, P.; Rozenes v Beljajev [1995] V.R. 533 at 571 per Brooking, McDonald and Hansen, JJ; Atlas v D.P.P.& Ors (2001) 3 V.R. 211 at 216 per Bongiorno, J..

   [3]Ibid; D.P.P. v Denysenko [1998] 1 V.R. 312 at 316 per Brooking, J.A..

1. The plaintiffs argue that there are exceptional circumstances justifying the grant of the relief in this case.  They contend that the exceptional circumstances are constituted by the length of time between the period from 28 February 2001 and 9 November 2001, when the offences were allegedly committed, or even 20 February 2002, the date of the charges against them, and the date of any resumed hearing.  Counsel for the plaintiffs also referred to a necessary witness who was presently overseas.  He did not elaborate as to why the presence of a witness overseas constituted necessary exceptional circumstances.

The evidence

1. Both plaintiffs swore affidavits on 17 September 2004 in the application.  The affidavits are in almost identical terms and were prepared by Mr Joseph Guss, acting as their solicitor.  When it became apparent that the original exhibits to the affidavits could not be produced, it was agreed that the Court should be provided with copies of the exhibits to the affidavit of Mr Antony Guss. 

1. Copies of the transcript of the hearing in the Magistrates’ Court on 27 July 2004 and the magistrate’s handwritten reasons for decision (“the reasons”) were exhibited to each of the affidavits.

The Magistrates’ Court proceeding

1. The transcript records the evidence which had been adduced up to the time of the magistrate’s decision. His Worship had heard evidence that:

(a)Casual Life Furniture Pty Ltd. (“Casual Life”) was a company of which the directors were Mr Joseph Guss, his wife, Ms Sandra Guss, his daughter, Ms Marilla Guss, and Mr Antony Guss. It carried on its business at factory premises at 1 Winterton Road, Clayton, Victoria. Mr Raja Varendran, an accountant who had been employed by Casual Life from 19 May 1995, expressed the opinion that Casual Life was controlled by Mr Joseph Guss, from whom he received most of his instructions.

(b)On 15 November 1999, Ms Pamela Knott had obtained a judgment for payment of the sum of $18,582.50 against Casual Life (“the judgment debt”). On 22 December 1999, a warrant was issued to the Sheriff, at the request of the solicitors for Ms Knott, authorising him to seize property of Casual Life to recover the amount of $19,013.85, then owing in relation to the judgment debt.  The warrant authorised the Sheriff to sell the property, unless the judgment debt and the costs of execution were paid. 

(c)On 4 May 2000, the Sheriff’s officer, Mr Lee Gilmore, went to the Casual Life factory premises. He made demands for payment of the judgment debt to Mr Varendran, who was present at the factory, and to Mr Joseph Guss, to whom he spoke by telephone. When the demands for payment were not met, Mr Gilmore notified both men of his intention to seize two mechanical presses under the warrant. He seized the large and extremely heavy, presses by taking what is known as “walking possession” of them.[4] Mr Gilmore filled out a seizure notice recording what he had done. Mr Varendran signed the seizure notice and an acknowledgment that he undertook to abide by certain “Conditions of Safekeeping (Seized Goods)” in relation to the presses. The conditions provided for him to “hold possession” of the property, to allow the Sheriff’s officer to enter and depart from the premises, to be responsible for the property and not to allow it to be removed without the Sheriff’s authority, as well as to advise anyone attempting to seize or remove the property of the seizure and to give the Sheriff notice of any such attempt. The seizure notice also set out information in relation to the procedures for any third party claiming an interest in the seized property.

(d)On 8 December 2000, Mr Joseph Guss told Mr Varendran that he was going to form a new company to “take over” Casual Life. He asked Mr Varendran to act as a director and secretary of the new entity, in a nominal capacity, for a short time. Mr Joseph Guss informed him that he did not want his family members to act as directors.

(e)On 15 December 2000, Casual Life Furniture International Pty Ltd (“Casual Life International”) was incorporated by Ms Denise Page, a conveyancing clerk, on the written instructions of Mr Joseph Guss.

(f)A Hong Kong company, Casual Life Furniture International Limited (“Casual Life Hong Kong”) claimed an interest in the seized goods, by way of a charge securing a loan to Casual Life. Mr Varendran described the background to the claim. From time to time, throughout the period of his employment by Casual Life, monies had been advanced by Casual Life Hong Kong to Casual Life and commission payments relating to export sales received by Casual Life Hong Kong from Casual Life.  

(g)Casual Life Hong Kong’s claim was the subject of an interpleader proceeding, dismissed by the Magistrates’ Court at Melbourne on 25 January 2001. A subsequent appeal to the Court and an application for leave to appeal against that decision to the Court of Appeal both failed

(h)On 30 January 2001, after becoming aware of the outcome in relation to the interpleader proceeding, the second defendant, an officer of the Sheriff, (“Mr Jacotine”) attempted to take the seized items from the premises to the Sheriff’s store. However, Casual Life obtained an order for stay of execution in the Melbourne Magistrates Court, on the same day.

(i)Then, by a written agreement, dated 28 February 2001, Casual Life agreed to sell its stock, plant and equipment to Casual Life International. The agreement was signed by Mr Antony Guss and Ms Sandra Guss, on behalf of Casual Life, and by Mr Varendran, for Casual Life International. As far as Mr Varendran knew, no money passed between the parties to the agreement. Afterwards, Casual Life International took over the Casual Life business which it carried on at the same premises. In Mr Varendran’s opinion, Mr Joseph Guss controlled Casual Life International and Mr Antony Guss was a general manager of that company. In October 2001, Mr Joseph Guss instructed Ms Page to make the necessary change to replace herself with Mr Varendran as the sole director of Casual Life International.

(j)On 9 November 2001, Mr Jacotine came back to the Causal Life factory seeking payment of the judgment debt or the removal of the seized items. Mr Joseph Guss showed him a copy of the 28 February 2001 agreement between Casual Life and Casual Life International. Mr Joseph Guss told him that the goods had been sold.

(k)On 5 February 2002, Mr Jacotine advised both the plaintiffs of his view that a criminal offence had been committed by the 28 February 2001 sale. He informed them that they might be charged in relation to the matter.

[4]For consideration of the meaning of “seizure” see: Whim Creek Consolidated NL v Colgan (Unreported decision of Spender, French and O’Loughlin JJ. in the Federal Court of Australia, 7 October 1991); BC 9103438.

1. It was alleged by the Sheriff that the plaintiffs had committed offences under s 111(7B), as result of the sale on 28 February 2001, and the charges and summons against each plaintiff were filed on 20 February 2002. As it is now argued by the plaintiffs that exceptional circumstances warranting the fragmentation of the criminal process are present in this case, because so much time has elapsed since the plaintiffs were charged, it is necessary to refer to relevant subsequent events.[5] 

   [5]Some of the events are recorded in judgment of Osborn J. in Guss v The Magistrates’ Court at Victoria [2003] VSC 365 at [3]-[8].

1. A copy of the summons to Mr Joseph Guss was left with a person apparently over the age of 16 at the premises at 1 Winterton Road, Clayton. The summons contained an initial return date of 24 April 2002. Mr Joseph Guss, who is a solicitor, attended at the court on that date without protest and the proceeding was adjourned, by consent, to a contest mention on 29 May 2002, a date convenient to counsel for both parties. 

1. When the matter subsequently came on for hearing on 15 October 2002, counsel for Mr Guss announced his appearance “under protest”, contending that his client had not been properly served and contesting the jurisdiction of the court. Mr Guss gave evidence that he was not a director of the company which carried on business at the premises and that the copy summons had been left at a place which was not his usual place of business. He said that he possibly attended at the premises on several days each week, in his capacity as a consultant to the business. He had received a copy of the summons, within days of it being left for him. The magistrate ruled that the court did have jurisdiction, having concluded that proper service had been effected. The Court heard the application for judicial review of that decision on 19 September 2003 and it was dismissed on 30 September 2003.[6] 

   [6]Joseph Guss v The Magistrates’ Court of Victoria and Harold Charles Jacotine [2003] VSC 365.

1. The hearing in the Magistrates’ Court resumed on 27 July 2004, when the ruling now the subject of challenge was made. The prosecution case had been closed when counsel for the plaintiffs made a no case submission, on the basis that no evidence had been led by the prosecution that the period of the validity of the warrant for the purposes of execution had been extended by the Registrar under Order 27.03 (1) of the Magistrates’ Court Civil Procedure Rules 1999 (“the Rules”). Counsel for the plaintiffs argued that, as the warrant had expired for the purpose of execution, it was not open on the evidence for the court to find the charges made out.

1. The Rules relevantly provided:

“27.03 (1)       A warrant shall be valid for the purposes of execution for one year after the day it is issued.

(2)Notwithstanding paragraph (1), a registrar may from time to time extend the period of validity of the warrant for the purpose of execution for a period of not more than one year from the day on which it would otherwise expire and so on from time to time.”

1. Counsel for the prosecution then informed the magistrate that the warrant had indeed been extended to 20 December 2002 and that he could tender written proof of the extension. Counsel for the plaintiffs objected to the proposed tender, on the basis that the prosecution had closed its case.

1. The learned Magistrate rejected the submission the following day. His Worship’s handwritten notes of his reasons constitute the only record and read as follows:

“In this matter the defendant made a no case submission at the close of yesterday’s proceedings.

The basis of that no case submission is as follows:-

(1)The warrant of execution – Exhibit A – was issued on 16 December 1999.

(2)Rule 27 of the Magistrates’ Court Civil Rules states that, unless extended by a Registrar the authority of the warrant ceases to exist 12 months from the date of issue.

(3)The sale of assets, (including the 2 presses, the subject of these proceedings) as set out in Exhibit E was effected on 28/2/01.

(4)There has been no evidence of any extension of the warrant beyond 12 months from the issue date.

(5)Therefore, there is no proof before this court that the warrant was valid as at the date of the purported transfer to Casual Life Furniture International P/L, being the starting date of the ‘between dates’ allegation contained in the charge faced by each defendant.

Upon the completion of the Defendants’ submission, the prosecutor sought to inform the court of certain matters relevant to the proceedings which had happened in other courts during civil proceedings between the Defendants in this matter and the Judgement Creditor. 

Mr Watts objected to the introduction of that material as the prosecutor had already closed his case. That objection was valid and is upheld.

The issue therefore, for me to decide at this stage is whether there is a case to answer on the merits before me. 

There is.

The main thrust of Mr Watts’ submission was as to Rule 27.

Rule 27.03(1) states ‘A warrant shall be valid for the purposes of execution for one year after the day it is issued.’

The authorities are distinctly unhelpful as to the interpretation of the exact meaning of ‘execution’ in this context. So I adopt the generally accepted view of the meaning as being the act by the Sheriff of attending premises and seizing the goods, either by actually removing them or by applying to them the status of ‘Walking Possession’ as described by the Informant in his evidence before me yesterday. For that reason I find that the logic of applying the 12 month validity of the warrant to the events of the 28^th February 2001 is flawed.

The matter will proceed.”

The application for judicial review

1. The plaintiffs seek the quashing of the magistrate’s decision on the grounds that the reasons disclose an error of law. His Worship is said to have erred, in so far as it is implicit in his reasons that he concluded that the plaintiffs could have committed the alleged offence under s 111(7B), more than one year after the date of the issue of the warrant, being the date upon which the warrant ceased to be “valid for the purpose of execution” under the Rules. The plaintiffs submit that the Court should decide this question now, as it would dispose of the proceeding.

1. Counsel for the plaintiffs, who had appeared in the previous application for judicial review, and before the Magistrate, conceded that the effluxion of time upon which he sought to rely had been, in part, caused by applications brought by his client, Mr Joseph Guss. 

1. It is now more than two and a half years since the matter came on for hearing on the adjourned date of 15 October 2002. The ultimately unsuccessful, belated challenge to service by Mr Joseph Guss must be regarded as the primary cause of the delay of some twenty-one months before the hearing of the charges against the plaintiffs resumed, only to be interrupted by the bringing of the application now before the Court. Mr Guss had participated in the Magistrates’ Court process for almost six months, without demur, before the point about service was taken.

1. The challenge to the prosecution case in the no case submission was based upon the technical issue as to the validity of the warrant. Counsel for the second defendant informed the Court that, notwithstanding his contention that the learned magistrate’s ruling on the point was correct, if the matter were to resume before him, the prosecution would seek to reopen its case, in order to lead the necessary evidence to prove that the warrant had, indeed, been extended.

1. The hearing was adjourned so that this application could be brought and it might be argued that the fragmentation has already occurred and that there may be a subsequent appeal on the very question addressed by his Worship.[7] Counsel for the plaintiffs also submitted that a difficult question of law was raised by the issue as to the correctness of the magistrate’s decision and that the matter should be dealt with by the Court at this stage.

   [7]See: Atlas v D.P.P. (2001) 3 V.R. 211 at 218 per Bongiorno, J..

1. As the application for review relies upon an alleged error of law by the magistrate in relation to the effect of the expiration of the warrant, that question seems only likely to arise if the prosecution were to be denied the opportunity to reopen its case to present the foreshadowed evidence that the warrant had in fact been extended or if the extension were not proved in the course of the defence case, by an admission from a defence witness under cross-examination, or otherwise. I note in, this regard, that, although the learned magistrate did uphold an objection to the giving of the relevant evidence after the close of the prosecution case, no application for its reopening had been made. Further, I do not take his Worship’s upholding of the objection as an indication that such an application would be refused. 

1. Counsel for the plaintiffs submitted that it would be unlikely that any such application would succeed, relying upon the statement, in R v Chin[8], of the principles with regard to the reopening of the prosecution case after the close of the case for the defence. Counsel for the second defendant relied upon the statement of principle with regard to matters of merely formal proof applied in Hansford v McMillan.[9] In Hansford Anderson J., said:

“There is very substantial weight of authority to the effect that an informant may reopen his case to meet an objection that some formal proof of a matter that really does not admit of denial has been overlooked.”[10]

In Chin, Gibbs, C.J. and Wilson, J. also acknowledged the existence of authority to like effect[11] as did Dawson, J.,[12] who described the relevant principle as one of fairness.[13] I note that there was no evidence to contradict the assertion by counsel for the prosecution, before the magistrate, and counsel for the second defendant, in the Court, that the warrant had indeed been extended. I also note that the defence had not yet presented any evidence at the hearing when the no case submission was made. Of course, the matter is one for the exercise of the court’s discretion, in accordance with established principle. I am not persuaded by the submissions in this regard of counsel for the plaintiffs.

[8](1984-5) 157 C.L.R. 671 at 676-7 per Gibbs, C.J. and Wilson, J..

[9][1976] V.R. 743 at 749 per Anderson, J..

[10][1976] V.R. 743 at 749.

[11](1984-5) 157 C.L.R. 671 at 676-7.

[12](1984-5) 157 C.L.R. 671 at 684-5.

[13](1984-5) 157 C.L.R. 671 at 684-5.

1. The fact that both the Court and Magistrates’ Court have been informed by the prosecution that there is evidence which, if admitted, would obviate the need to address the legal issue arising in its absence is a significant factor in the assessment as to whether exceptional circumstances justifying the fragmentation of the proceedings below have been established.

1. In Sankey v Whitlam[14] Gibbs, C.J provided a relevant caution when his Honour said, of declarations in respect of the admissibility of evidence, that :

“[t]he power to make declaratory orders has proved to be a valuable addition to the armoury of the law. The procedure involved is simple and free from technicalities; properly used in an appropriate case the use of the power enables the salient issue to be determined with the least possible delay and expense. But the procedure is open to abuse, particularly in criminal cases, and, if wrongly used can cause the very evils it is designed to avoid. Applications as to the admissibility of evidence may in some cases be used by an accused person for the purposes of delay, or by a prosecutor to impose an additional burden on the accused, but even when such an application is made without any improper motive it is likely to be dilatory in effect, to fragment the proceedings and to detract from the efficiency of the criminal process.”[15]

[14](1978) 142 C.L.R.1.

[15](1978) 142 C.L.R.1 at 26.

1. I do not consider that the necessary exceptional circumstances justifying the fragmentation of the criminal proceedings in the Magistrates’ Court have been made out by the plaintiffs. The proceeding before the magistrate should be allowed to run its course. The relief sought should be refused.

1. The application should be dismissed. I will hear the parties as to the form of orders.

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