Hinch v County Court of Victoria

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

No. 6224 of 2009

DERRYN NIGEL HINCH	Plaintiff
v
COUNTY COURT OF VICTORIA & Ors (According to the Schedule attached)	Defendants

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JUDGE:	OSBORN J
WHERE HELD:	Melbourne
DATE OF HEARING:	23 November 2009
DATE OF JUDGMENT:	3 December 2009
CASE MAY BE CITED AS:	Hinch v County Court of Victoria
MEDIUM NEUTRAL CITATION:	[2009] VSC 548

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Suppression orders made upon applications for extended supervision orders – Leave sought to commence proceedings for judicial review out of time – No arguable error in respect of first suppression order – No error of law in respect of failure to provide reasons in conjunction with second suppression order – Interlocutory order – No substantive error demonstrated – Failure to give reasons not an error in circumstances of case – No proper or adequate explanation of delay or frank disclosure of relevant circumstances – Special circumstances not established – Rules of the Supreme Court 56.01 and 56.02 – Serious Sex Offenders Monitoring Act 2005, sections 35 and 42.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr D. Gilbertson Mr. R. Lombardi	TressCox Lawyers
For the First Defendant	No appearance
For the Second Defendant	Mr J. McArdle	Office of Public Prosecutions
For the Third Defendant	Mr P. Hanks Ms F. Gordon	Victorian Government Solicitor
For the Fourth Defendant	Mr M. Pearce Ms E. Holt	Herbert Geer
For the Fifth Defendant	No appearance

HIS HONOUR:

The plaintiff in this matter has been charged with five counts of publishing material in breach of suppression orders made by judges of the County Court.

He now seeks extensions of time pursuant to Rule 56.02 of the Rules of the Supreme Court in order to issue proceedings challenging the validity of two of the orders which form the basis of the criminal charges.

On 20 December 2007 her Honour Judge Millane made orders in respect of the fourth defendant (‘GT’) making an extended supervision order (’ESO’) pursuant to the Serious Sex Offenders Monitoring Act 2005 (‘the Act’). Subject to exemptions in respect of the Secretary to the Department of Justice and the Chief Commissioner of Police, her Honour ordered first that any information that might enable GT or his whereabouts to be identified must not be published and secondly that specified evidence and documents filed in the proceeding not be published.

The order was stated to commence on 17 December 2007 and to remain in force for the period of 15 years. Review of the order under the provisions of the Act was required by 16 December 2010.

On 29 September 2008 the plaintiff was charged with breach of this order on 21 May 2008 by publishing material on his website which identified GT.

On 21 April 2008 her Honour Judge Hannan made orders at a directions hearing held in respect of an application for an ESO relating to the fifth defendant (‘MJ’). Her Honour ordered first that the proceeding be listed for hearing on 3 and 4 July 2008 with an estimated duration of two days. Secondly she gave a series of directions with respect to expert assessments and medical reports. Thirdly she ordered ‘until the issue of further order, pursuant to s 42 of the Act’, that except in accordance with exemptions relating to the Secretary to the Department of Justice and the Chief Commissioner of Police, no information that might enable MJ to be identified was to be published. She further ordered that the content of an assessment report dated 14 February 2008 and any further assessment reports filed either on behalf of the applicant or the respondent must not be published. She also reserved liberty to the parties to apply for further orders. She filled a bail hearing in the matter for 26 May 2008.[1]
[1]Courtbook 129.

The plaintiff was charged on 29 September 2008 that he breached Judge Hannan’s order on 5 May 2008 by publishing material on his website which identified MJ, and further charged that he breached the order by stating MJ’s identity at a public protest rally on 1 June 2008.

Section 42 of the Act provides as follows:

42 Suppression orders
(1)In any proceeding before a court under this Act, the court, if satisfied that it is in the public interest to do so, may order—
(a)that any evidence given in the proceeding; or
(b)that the content of any report or other document put before the court in the proceeding; or
(c)that any information that might enable an offender or another person who has appeared or given evidence in the proceeding to be identified—

must not be published except in the manner and to the extent (if any) specified in the order.
(2)An order under this section may be made on the application of a party or on the court's own initiative.
(3)A person must not publish or cause to be published any material in contravention of an order under this section.
Penalty:500 penalty units in the case of a body corporate;
120 penalty units or imprisonment for 1 year or both in any other case.

The originating motion founding this proceeding seeks to challenge the relevant suppression orders on the alleged basis that in each case the County Court judge failed to consider whether it was in the public interest to make the order.

In the case of the order made by her Honour Judge Hannan it also alleged her Honour failed to state any reasons for making the relevant order, failed to give any or sufficient weight to a relevant consideration, namely the principle of open justice, and took into account an irrelevant consideration, namely that the proposed orders had the consent of parties before her.

Section 26 of the Act provides that proceedings on an application order for an ESO are criminal in nature.

In turn Part III of the Act does not provide for appeal against decisions to grant suppression orders.[2] It was not contested before me that this Court has supervisory jurisdiction to grant relief in the nature of certiorari in respect of decisions to grant supervisory orders.[3]
[2]ARM v the Secretary to the Department of Justice, [2008] VSCA 266, [8].
[3]Ibid, [9]; Hansford v His Honour Judge Neesham (1994) 7 VAR 172; Flynn v DPP [1998] 1 VR 322, 333-5.

In Craig’s case the High Court described the scope of certiorari in the following terms: [4]

Where available, certiorari is a process by which a superior court, in the exercise of original jurisdiction, supervises the acts of an inferior court or other tribunal. It is not an appellate procedure enabling either a general review of the order or decision of the inferior court or tribunal or a substitution of the order or decision which the superior court thinks should have been made. Where the writ runs, it merely enables the quashing of the impugned order or decision upon one or more of a number of distinct established grounds, most importantly, jurisdictional error, failure to observe some applicable requirement or procedural fairness, fraud and “error of law on the face of the record”. Where the writ is sought on the ground of jurisdictional error, breach of procedural fairness or fraud, the superior court entertaining an application for certiorari can, subject to applicable procedural and evidentiary rules, take account of any relevant material placed before it. In contrast, where relief is sought on the ground of error of law on the face of the record, the superior court is restricted to the “record” of the inferior court or tribunal and the writ will enable the quashing of the impugned order or decision only on the ground that it is affected by some error of law which is disclosed by that record.

[4](1994) 184 CLR 163, 175-176.

The Court then addressed the difficulties that may arise in distinguishing between jurisdictional error and error on the face of the record and stated in part: [5]

An inferior court falls into jurisdictional error if it mistakenly asserts or denies the existence of jurisdiction or if it misapprehends or disregards the nature or limits of its functions or powers in a case where it correctly recognises that jurisdiction does exist. Such jurisdictional error can infect either a positive act or a refusal or failure to act. Since certiorari goes only to quash a decision or order, an inferior court will fall into jurisdictional error for the purposes of the writ where it makes an order or decision (including an order or decision to the effect that it lacks, or refuses to exercise, jurisdiction) which is based upon a mistaken assumption or denial of jurisdiction or a misconception or disregard of the nature or limits of jurisdiction.

[5](1994) 184 CLR 163, 176-177.

The Court drew attention to the fundamentally different functions of a court and a tribunal:[6]

In contrast, the ordinary jurisdiction of a court of law encompasses authority to decide questions of law, as well as questions of fact, involved in matters which it has jurisdiction to determine. The identification of relevant issues, the formulation of relevant questions and the determination of what is and what is not relevant evidence are all routine steps in the discharge of that ordinary jurisdiction. Demonstrable mistake in the identification of such issues or the formulation of such questions will commonly involve error of law which may, if an appeal is available and is pursued, be corrected by an appellate court and, depending on the circumstances, found an order setting aside the order or decision of the inferior court. Such a mistake on the part of an inferior court entrusted with authority to identify, formulate and determine such issues and questions will not, however, ordinarily constitute jurisdictional error. Similarly, a failure by an inferior court to take into account some matter which it was, as a matter of law, required to take into account in determining a question within jurisdiction or reliance by such a court upon some irrelevant matter upon which it was, as a matter of law, not entitled to rely in determining such a question will not ordinarily involve jurisdictional error.

[6](1994) 184 CLR 163, 179-180.

The present proceedings were initiated on 27 April 2009. Rule 56.02 of the Rules of the Supreme Court provides:

56.02 Time for commencement of proceeding
(1)A proceeding under this Order shall be commenced within 60 days after the date when grounds for the grant of the relief or remedy claimed first arose.
(2)Where the relief or remedy claimed is in respect of any judgment, order, conviction, determination or proceeding, the date when the grounds for the grant of the relief or remedy first arose shall be taken to be the date of the judgment, order, conviction, determination or proceeding.
(3)The Court shall not extend the time fixed by paragraph (1) except in special circumstances.

The sixty day time limit fixed by Rule 56.02(1) runs from the date when grounds for the grant of relief claimed first arose. In cases where the relief claimed is in respect of a court’s order, the date on which the order was made is taken to be the date when the grounds for grant of the relief first arose.

Accordingly, in the present case the time limit fixed by the Rule expired respectively on 60 days after 20 December 2007 (18 February 2008) and 60 days after 21 April 2008 (20 June 2008).

Rule 56.02(3) prohibits the Court from extending the time fixed by the Rule ‘except in special circumstances’.[7] The phrase ‘special circumstances’ is deliberately flexible.[8] Nevertheless the onus is on the applicant to demonstrate such circumstances and it will ordinarily be incumbent upon an applicant to explain why an application was not made within time. In the present case, the plaintiff submits:

The orders the subject of the proceeding were made on 20 December 2007 and 21 April 2008. On 29 September 2008, the plaintiff was charged on summons with publishing material contrary, inter alia, to those orders. By reason of the suppression orders, the legal representatives of the plaintiff were unable to obtain copies of all the relevant transcripts until the orders of Chief Judge Rozenes made on 17 April 2009. The originating motion herein was filed on 27 April 2009 after the plaintiff had obtained leave ex parte from the Honourable Justice Hansen on that day to commence a proceeding in which the proposed fourth and fifth defendants are not identified by their true names but shall instead be referred to by the pseudonyms ‘GT’ and ‘MAJ’ respectively.

[7]The Court’s general discretion to extend time under the Rules of Court is found in rule 3.02.

[8]Mann v Medical Practitioners Board of Victoria [2002] VSC 256, [18]; [2004] VSCA 148, [5] (Chernov JA), and [57]-[72] (Hansen AJA); Mokbel v DPP [2005] VSC 476, [57]-[58].

For reasons to which I shall return, a very significant threshold issue arises as to whether the plaintiff has established that special circumstances exist in this case.

Nevertheless short answer to the challenge made to the order made by her Honour Judge Millane is that the underlying complaint made in respect of it is manifestly baseless. It would accordingly be pointless to grant leave to extend time.

Judge Millane conducted a hearing in respect of the application for an ESO and ancillary orders relating to GT on 4, 8 and 17 September 2001. Insofar as the application was concerned with the making of suppression orders pursuant to s 42 of the Act, she had before her an application by the Herald & Weekly Times Pty Ltd (‘HWTL’) for access to documents filed in the proceeding, including the assessment report filed in support of the application for an ESO pursuant to s 5 of the Act. Access to these documents had been prohibited by preliminary suppression orders made by her Honour Judge Sexton on 30 August 2007 and 1 October 2007.

In giving her reasons with respect to the order ultimately made on 20 December 2007, which is now sought to be impugned, her Honour Judge Millane expressly referred back to and relied on the reasons given by her for refusing the HWTL application on 17 December 2007. It is accordingly appropriate to first refer to those reasons.

Her Honour’s reasons acknowledged and elaborated the fundamental concept of open justice as follows:

24Before I deal with the substantive issue raised by the application, it is appropriate that I say something about the principle of open justice which is at the heart of any contest over the suppression of evidence or of the content of any document or of any information in the proceeding.
25As Court of Appeal Justice McHugh, as he then was, explained in John Fairfax & Sons Ltd v Police Tribunal of New Wales & Anor. (1986) 5 NSWLR 465 (at 476-477):
“The fundamental rule of the common law is that the administration of justice must take place in open court. A court can only depart from this rule where its observance would frustrate the administration of justice or some other public interest for whose protection Parliament has modified the open justice rule. The principle of open justice also requires that nothing should be done to discourage the making of fair and accurate reports of what occurs in the courtroom. Accordingly, an order of a court prohibiting the publication of evidence is only valid if it is really necessary to secure the proper administration of justice in proceedings before it. Moreover, an order prohibiting publication of evidence must be clear in its terms and do no more than is necessary to achieve the due administration of justice. The making of the order must also be reasonably necessary, and there must be some material before the court upon which it can reasonably reach the conclusion that it is necessary to make an order prohibiting publication.”

26Section 42 of the Act modifies the common law rule, because it confers on a court a discretion to suppress any evidence given in the proceeding or the content of any report or other document put before the court in the proceeding or any information that might enable the offender or another person who has appeared or given evidence in the proceeding to be identified. However, the court must first be satisfied that it is in the public interest to do so.
27The public interest referred to in s.42 must be viewed in the context of the purposes of the Act, the main purpose being, according to s.1 –
“to enhance the protection of the community by requiring offenders who have served custodial sentences for certain sexual offences and who are a serious danger to the community to be subject to ongoing supervision while in the community.”

28The supervisory scheme contained in the Act is designed to enhance the protection of the community from offenders who have returned to the community, through monitoring, rehabilitation, care and treatment. The process by which an application supported by an assessment report comes before a court and the proper administration of the supervisory scheme for a period not exceeding 15 years in duration provide the mechanism for achieving the purposes of the Act.
29If, on an application for an Extended Supervision Order, the court is satisfied to a high degree of probability that the offender is likely to commit a relevant offence if released into the community without an Extended Supervision Order, it may make such an order. The order made must contain the conditions set out in s.15 of the Act and, amongst other things, the offender is obliged to accept instruction and direction made in relation to the Extended Supervision Order.
30The scheme is a strict and intrusive regime for monitoring the offender. It does so at the expense of the freedom of the offender to go about his business in the community unchecked. For instance, one of the conditions imposed by the Act prevents the offender from moving to a new address without the prior written consent of the Secretary of the Department of Justice, and, as part of the supervisory regime, the Secretary may direct the offender as to where to reside. In providing these examples I am intending to stress the significance the Act places on the offender’s location and residence as part of the administration of the supervisory regime.
31In the present case, if the observance of the principle of open justice would, or could, frustrate the purposes of the Act, which are to be achieved through the processes established by the Act, the applicant or the respondent or, indeed, the court on its own initiative, may move to suppress any evidence given in the proceedings, or the content of any report or other document put before the court in the proceeding or any information that might enable the offender or another person who has appeared or given evidence in the proceeding to be identified. This should only be done if the court is satisfied that it is in the public interest as viewed through the prism of the Act.[9]

[9]Courtbook 198-200.

After dealing in detail with the expert evidence before her (including the psychiatric evidence) her Honour ultimately concluded:

51I have approached the application for access to documents cognizant of my obligation to strictly construe any statutory provision which modifies the principle of open justice. In this case, the intervenor’s lengthy written and oral submissions left me with an overriding concern that the applications arising out of the order for suppression of materials and information have overtaken the principal concern of Parliament in enacting this legislation and its clear intent to empower the court to control publication of the evidence, of the content of documents and of information, so as to advance the purposes of the legislation.

52Paradoxically, the exercise of this power has become the means by which the media seeks access to material concerning the offender’s extensive offending, corrections and treatment history, material to which it would not otherwise have access or an opportunity to analyse.
53I am firmly of the view that in this case it is not in the public interest that the course proposed by the intervenor be adopted as I am satisfied that it could frustrate the interest the public has in the process established to evaluate an offender’s risk of re-offending and in the administration of the legislation. For these reasons, I refuse the intervenor’s preliminary application for access to documents.
54I note that there have been a number of cases arising under the Act in which preliminary arguments for seeking access to documents suppressed by order of the court, and complaints about procedural fairness and the like, have been raised, but not so fully ventilated as they were before me in the current application. It goes without saying that it is important that the basis for an application for suppression and the reasons for prohibiting publication of material or information is open to scrutiny. To this I would also add that I think it is important that the community be made aware that the Serious Sex Offenders’ Monitoring Act is being employed as intended and that an application by the Secretary for an Extended Supervision Order has been heard and its outcome.
55Indeed, I expect that, depending on the circumstances of a particular case, where a suppression order is warranted this public interest could be met through the publication of appropriately-worded material, although I suspect that such material, stripped of its prurient detail and possibly the means of identifying the offender, may not be viewed as sufficiently newsworthy to warrant publication.
56Applications for Extended Supervision Orders and for Suppression Orders are heard in open court and, as in the present case, the media has the opportunity to be present and to hear and see what has taken place, as well as to hear the reasons for making the Extended Supervision Order. In this case, I expect that the judgment delivered and my ruling have exposed sufficient information, both about the basis of the application for suppression and the making of the Extended Supervision Order, to enable the intervenor to articulate any opposition to the making or continuation of an order suppressing information that might enable the respondent or his whereabouts to be identified.
57The point I seek to make is that the Extended Supervision Order application was heard on 4 December 2007 and three experts gave evidence directed to the suppression order application. The opportunity to cross examine these witnesses remains open to the intervenor, who has also asked for access to the transcript to prepare its case if its preliminary application for access to the documents fails. I have not heard argument from the applicant or the respondent on this further application.
58Accordingly, in this case, I think that any tension between procedural fairness for those who have the standing to advocate open justice and the public interest as understood through the enactment of the Serious Sex Offenders’ Monitoring Act, is resolved by the course currently adopted.[10]

[10]Courtbook 205-6.

On 20 December 2007 her Honour gave judgment in respect of the application by the third and fourth defendants for ongoing suppression orders prohibiting publication of the content of certain documents filed in the proceeding and further prohibiting publication of information which might enable the fourth defendant or his whereabouts to be identified. The HWTL at that point in time confined its application to one seeking the lifting of suppression orders relating to the fourth defendant’s identity.[11]
[11]Her Honour recorded the procedural sequence which led to the giving of reasons on 21 December 2007 at [4] of her reasons.

Her Honour stated the reasons for granting permanent suppression orders as follows:

7In a nutshell, I was satisfied that the public interest in this case warranted suppression. The unequivocal message given by the expert witnesses in respect to this respondent is that as a high risk offender the progress he has made in his rehabilitation in the community and the containment and diminution of the risk of re-offending have been achieved through a combination of factors which include stability in:
(a)the respondent’s living environment for which environment controls are currently in place;
(b)the respondent’s limited but appropriate social network;
(c)the respondent’s clinical management and therapy;
(d)the respondent’s established relapse prevention plan; and
(e)the respondent’s established support and surveillance group.[12]

[12]Courtbook 120.

She then went on to set out the history of media interest in GT, before continuing as follows:

13The application to lift the suppression order is in the main based on the intervenor’s belief that publication of at least the name of the respondent would diminish the risk of re-offending by reducing the opportunity the respondent has to establish relationships of trust with potential victims and their families.
14However, I think it naïve to assume that by limiting publication to the respondent’s name, his whereabouts will remain unknown to the general community. Indeed, on the contrary, I think that the publication of the respondent’s name is likely to lead eventually to the revelation of his whereabouts because there are sections of the community who probably share the intervenor’s view that publication of the respondent’s name and whereabouts minimises the risk of re-offending, and they will make it their business to locate him.
15In my view, the interest the public has in open justice must, on this occasion, give way to the interest it has in not jeopardising the respondent’s ongoing rehabilitation by exposing him to the sorts of harassment, protest and sometimes vigilantism offenders with his truly shocking history of sexual offending attract. In other words, on the facts of this case, I have decided to exercise the discretion I have because I have formed the view that presently it is in the best interests of children that this offender be contained and supervised under the Extended Supervision Order in the existing environment and circumstances that have clearly contributed to the very positive progress made by him and to which the witnesses refer in their evidence and in the assessment reports.[13]

[13]Courtbook 121-2.

Her Honour then gave reasons with respect to the suppression of the content of documents and stated in part.

18I determined to grant the application to make a permanent order under sub-s 42(1)(b) of the Act suppressing the content of the documents, primarily because the expert evidence of Professor Mullen, Ms Owen and Dr Sullivan, some of which I have already commented on in my earlier ruling, satisfied me that the publication of the content of the documents put before the Court could frustrate the interest the public has in the process established by the Act to evaluate this offender and in the administration of the legislation.
19In my view, the degree of negative impact referred to by the expert witnesses justifies and necessitates the suppression of the content of these documents.
20What must not be lost sight of in the debate about suppression of the content of documents is that the legislative scheme and the Extended Supervision Order made both contemplate regular review and evaluation of this offender. He has established a therapeutic relationship with Dr Pathe, and during his assessment by Ms Owen and Dr Sullivan he apparently cooperated in being examined and in revealing information about himself that has assisted them in forming clinical judgments as to the risk of re-offending.
21Their evidence, in part based on their examination of the respondent, was central to me being satisfied to a high degree of probability that the respondent is likely to commit a relevant offence if he is released in the community on completion of the service of any custodial sentence and not made subject to an Extended Supervision Order.
22In my view, it remains important that the professional relationships that have been established and any future cooperation on the part of this respondent are not compromised by general publication of the content of the written reports submitted thus far.
23It follows from this that the oral evidence given by the witnesses, as part of which they necessarily and extensively discussed or commented on the content of the assessment reports, should similarly be suppressed. This outcome is achieved at the cost of open justice as the oral evidence is, in my view, inextricably bound up in the discussion of the content of the assessment reports.[14]

[14]Courtbook 122-3.

Her Honour further addressed what were put forward as ‘compromise orders’ by HWTL,[15] and concluded that for the reasons she had previously articulated, she was satisfied that it was in the public interest to make an order which also restricted publication of the evidence given in the matter.
[15][26]–[27] of the reasons.

It is now submitted on behalf of the plaintiff that the test which her Honour applied was whether there was a risk to the rehabilitation of the offender and that this is not to be equated to the public interest. I do not accept that her Honour’s reasons do other than demonstrate in the clearest fashion, that she considered the public interest and that in particular she explicitly took account of the public interest in open justice. Further I do not accept that the rehabilitation of the offender was or could be regarded as irrelevant to the public interest.

First, as Mr Gilbertson conceded, the fact that a matter relates to the offender as such, does not mean it could not be said in some circumstances to raise an issue of the public interest. Most obviously, if a Court were faced with compelling evidence that publication of material before it would raise a high risk of suicide or self‑harm on the part of the offender, it would be difficult to conclude that this circumstance did not raise a consideration of the public interest.

Less dramatic circumstances relating to an offender were considered by the Court of Appeal to raise issues of public interest in ARM v the Secretary to the Department of Justice.[16]

A supervision order is not and is not intended to be a punishment.[17] An offender such as the appellant who has served all the sentence of imprisonment imposed on him for his offending is taken to have discharged his debt to society. Subject to extraordinary statutory exceptions of the kind constituted by the Act, he is as free as any other member of society to live lawfully without unwanted publicity or intrusions upon his or her privacy. Evidently, it is in the public interest that police and correctional authorities be aware of the identity and whereabouts of an offender the subject of an extended supervision order. That is the principal justification for the profound intrusion upon the liberty of the subject for which the legislation provides. But, as at present advised, it appears to us to be less clear that there is any public interest in further unwanted disclosures of an offender’s identity or whereabouts. In this case, we consider that the likely effects of such disclosures on the applicant are sufficient in themselves to warrant suppression. In other cases it may be necessary to consider the right to privacy and reputation conferred by s 13 of the Charter of Human Rights and Responsibilities[18] and, along with it, the effect of s 32 of the Charter on the interpretation of s 42 of the Act.[19]

[16][2008] VSCA 266, [36].

[17]Fardon v Attorney-General for the State of Queensland (2004) 223 CLR 575, 597 [34] (McHugh J), 610 [73]–[74] (Gummow J), 647 [196]–[197] (Hayne J), 655 [219] Callinan and Heydon JJ.

[18]Charter of Human Rights and Responsibilities Act 2006.

[19]ARM v the Secretary to the Department of Justice [2008] VSCA 266, [36] (emphasis added).

Secondly, insofar as rehabilitation is concerned, sentencing courts have repeatedly recognised and emphasised that such a process is one which is in the interests of both the public and the individual. By way of example, I refer to the following observations of Maxwell P in R v Merrett, Piggott and Ferrari:[20]

As I said in The Queen v Tiburcy,[21] the sentencing court looks to the future as well as to the past. There is very great benefit to the community at large, as well as to the individuals themselves and their immediate families, if future criminal activity can be avoided. It is important that this Court, by its own sentencing decisions, recognise and reward efforts at rehabilitation, just as we should support trial judges who do so. It is important to reinforce in the public mind the very considerable public interest in the rehabilitation of offenders. The preoccupation with retribution which characterises much of the public comment on sentencing is understandable, but it focuses on only one part of what the sentencing court does.[22]

[20][2007] VSCA 1.

[21]R v Tiburcy [2006] VSCA 244, [15]-[16].

[22]R v Merrett, Piggott and Ferrari, [2007] VSCA 1, [49].

In the present case her Honour Judge Millane expressly accepted evidence before her that the fourth defendant’s rehabilitation was directly related to ‘the containment and diminution of the risk of re-offending’. Further, she expressly found that it was in the best interests of children that the offender be contained and supervised under the existing environment of suppressed particulars of his identity. Evidence of parallel circumstances was held by the Court of Appeal to justify a suppression order in ARM v the Secretary to the Department of Justice.[23]
[23][2008] VSCA 266, [33]-[35].

In my view it is plain that her Honour had regard to the public interest in making the order which she did. Accordingly, the application for relief in respect of her order should be refused. The substantive basis of the application must fail.

I turn then to the order of her Honour Judge Hannan. Once again, insofar as it is sought to attack that order on the basis of allegations concerning the substantive basis of her Honour’s order, it is my view that such an attack must fail. Her Honour made the suppression order in issue at the first directions hearing[24] held pursuant to s 28 of the Act in respect of the third defendant’s application for an ESO. She did not give reasons for the order but made it together with an order fixing the matter for further hearing after ascertaining that it was sought by consent.
[24]Section 28 of the Act expressly provides for the holding of a directions hearing after an ESO application is commenced.

The transcript of the hearing on 21 April 2008 records her Honour stating to counsel:[25]

Well it looks like there’s two forms of suppression, firstly in relation to identity and secondly in relation to the contents of the assessment report. Those are orders that I seem to be making with some regularity. That’s what’s sought? All right. Is this a consent order, Mr McLoughlin?

Counsel responded that the orders were sought by consent.

[25]Courtbook 128.

The suppression orders made by her Honour were made in open court and did not suppress publication of the transcript.

When the matter came back before her Honour on 26 May 2008 for the purpose of a bail order, HWTL appeared by counsel, seeking a variation of the suppression order previously made, in order to enable MJ to be identified. Counsel for HWTL submitted that the transcript of the previous hearing did not show the parties put material before the Court to persuade it that the order made was in the public interest, or make submissions as to the basis of the exercise of the power pursuant to s 42 of the Act. [26] It was further submitted no material was before the Court to enable it to form the requisite conclusion as to the public interest enabling it to make a suppression order.
[26]Courtbook 133.

Her Honour stated:[27]

You of course note that you and your organisation were not present on that occasion and in any case this court may well have formed the view of matters known to it as a result of certain materials which you have not been privy to.

[27]Courtbook 134.

She stated further:

It doesn’t necessarily, Ms Enbom, need to be done in the way in which you anticipate; that is, by vive voce evidence at the time the application is made. There is certain material which is filed in these sort of proceedings, again to which you have not been privy.[28]

[28]Courtbook 134-5.

And further stated in response to counsel’s submission that the application was made on the basis of a reading of the transcript:

But the transcript doesn’t disclose much at all, the orders were made by consent and there was material on the court file, again to which I am not in a position to say anything further. But, in any case, you say, I take it, in relation to your client, that the public – there is no public interest which, or should lead to the making of an order which prohibits the disclosure of matters which may lead to the identification of the respondent?[29]

[29]Courtbook 135.

At the invitation of the Court, counsel for HWTL then moved to the question of the merits of the suppression order, but the consideration of those merits was adjourned for further hearing on 17 June 2008. This occurred when it became clear HWTL proposed to rely on a report from an independent expert witness which had not been previously provided to the parties to the ESO application. HWTL was however granted leave to intervene in the proceeding to argue that the suppression should be set aside. On 16 June 2008 the matter was again mentioned before her Honour and the HWTL application was further adjourned because delay in funding had prevented the first defendant’s legal representatives from obtaining expert evidence answering that previously put forward on behalf of HWTL. The HWTL application was adjourned for hearing together with the application for an ESO before her Honour Judge Rizkella on 3 and 4 July 2008. The suppression order previously made was also amended to commence ‘Until the commencement of the proceeding on 3 July 2008 …’.[30] In due course, her Honour Judge Rizkalla determined the merits of the HWTL application and the ESO application as was contemplated by her Honour Judge Hannan.
[30]Courtbook 217.

Mr Gilbertson submitted that because the initial suppression order made by her Honour Judge Hannan was not expressed to be an interim order only for a fixed period of time it should not be regarded as one made on an interlocutory basis. I do not accept this submission. It is plain the initial order was provisional in that it was made “until further order” in conjunction with the fixing of the further hearing of the matter in the relatively near future and that the Court contemplated that the ultimate merits of the matter would be properly resolved at a further hearing.

Superior courts have generally expressed considerable reluctance to interfere in interlocutory rulings made in the course of proceedings of a criminal character.

The essential requirement is that there be a real question, with a plaintiff having a real interest and a proper contradictor, and that the circumstances be such that it is appropriate to grant a declaration. The question what is "appropriate" will be determined by reference to, and the balancing of, the factors present in a particular case, and in this respect different considerations may apply depending on whether the question arises in a criminal or civil case. In the criminal jurisdiction an important consideration will be the need to observe and not fragment the ordinary, and orderly, process of a committal or trial. That consideration would apply with particular force "where proceedings are in charge of a judge who at this very moment is beginning the trial": Anderson v Attorney-General for New South Wales[31] per Kirby P. Such fragmentation should be avoided unless there are exceptional or special circumstances. It is sufficient to refer in this context to Sankey; R v Iorlando;[32] Lamb v Moss and Brown;[33] Yates v Wilson;[34] Beljajev v Director of Public Prosecutions;[35] Harland-White v Gibbs;[36] Re Rozenes; Ex parte Burd.[37] These considerations apply whether the application be for a declaration or other form of judicial review such as relief in the nature of certiorari.

In Sankey Gibbs ACJ said at 25-6: In any case in which a declaration can be and is sought on a question of evidence or procedure, the circumstances must be most exceptional to warrant the grant of relief . . . 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 ... a court will be reluctant to make declarations in a matter which impinges directly upon the course of proceedings in a criminal matter. Once criminal proceedings have begun they should be allowed to follow their ordinary course unless it appears that for some special reason it is necessary in the interests of justice to make a declaratory order. [38]

[31](1987) 10 NSWLR 198 at 200.

[32](1983) 151 CLR 678.

[33](1983) 76 FLR 296.

[34](1989) 168 CLR 338.

[35](1991) 173 CLR 28.

[36][1993] 2 VR 215.

[37](1994) 68 ALJR 372.

[38] Rozenes & Anor v Beljajev & Ors [1995] 1 VR 533, 571.

In my opinion if application had been made to this court by HWTL (which in effect represented the media before her Honour Judge Hannan) or by the present plaintiff, to quash the initial suppression order made by her prior to the resolution of the appropriateness of such an order upon the full hearing by another judge of the ESO application, such an application (on the overwhelming balance of probabilities) would have been refused on a discretionary basis.

Prior to the full hearing of the matter it was open either to seek reasons from her Honour, or as HWTL did, to make application for variation of the orders. Further the merits of an ongoing suppression order fell to be reconsidered by a date which a superior court (even if satisfied the initial order should be set aside) could not but conclude, provided a reasonable and convenient date for rehearing in accordance with law.

Insofar as complaint is made concerning specific considerations relevant to her Honour’s decision, the plaintiff faces a further series of fundamental evidentiary problems. First, it cannot sensibly be said that the Court erred in taking into account the fact that the orders in issue were sought by consent. The attitude of the parties to the orders must necessarily have been relevant to the Court’s decision.

Further, it cannot be inferred from the transcripts that her Honour did not have material on file (including in particular the assessment report required by s 5 of the Act) which justified the making of the order in issue. Indeed Mr Gilbertson did not submit that this Court could conclude that it was not open to her Honour to make the order which she did.

In addition, it cannot be inferred that her Honour did not have regard to the public interest including the interest in open justice before making the order which she did. A failure to expressly refer to a relevant consideration may or may not lead to an inference that it was not taken into account, depending on the circumstances of the case.[39] I am not persuaded the inference of failure to take into account should be drawn in the present case, because it is plain that her Honour did not purport to give reasons for her order. She simply made what was in effect an interim order pending the final hearing of the matter.
[39]Kentucky Fried Chicken Pty Ltd v Gantidis (1979) 140 CLR 675, 679-80 (Barwick CJ) and 683-4 (Stephen J).

The applicable test is that stated in respect of appeals on questions of law by Sholl J:

“The true principle…must be, not that everything relevant which a magistrate does not refer to is to be taken to have been overlooked, or on the other hand, that it is to be taken to have been considered, but that, if something which should have been considered is not referred to, and the nature of the decision suggests some error, which may have been due to that matter not having been considered as it should have been, or if the magistrate’s observations indicate, on a comparison of what he said with what he did not say, that the matter in question has not been considered as it should have been, the appellate tribunal may properly draw such an inference, and the magistrate will have no cause to complain if it does so.”[40]

[40]Harrison v Mansfield [1953] VLR 399, 404.

It is apparent from a reading of the transcripts of the successive hearings before her Honour as a whole, that she was well familiar with the statutory regime in question and had previously considered the jurisdiction in issue. It cannot be surmised that she acted other than with regard to the need for the due administration of justice in making an interim order, and had regard to the public interest in so doing.

The originating motion postulates her Honour’s error as a failure to give :

any or any sufficient weight to a relevant consideration, namely that the fundamental principle is that proceedings should be held in public and that a suppression order should not be made unless it was necessary to avoid prejudice to the administration of justice.

Insofar as reference is made to ‘sufficient weight’, the complaint is further misconceived. The weight to be given to a relevant factor in the exercise of a discretion is a matter for the decision maker. Further, the relevant public interest may go beyond the due administration of justice.

It follows that in my view the plaintiff is at best left with the contention that her Honour fell into jurisdictional error or alternatively error of law on the face of the record, simply by failing to give reasons for her order at the time she made it.

It should be noted that her Honour was not requested to give reasons for the order either by the parties who consented to it, or by the intervener to whom she subsequently gave leave to challenge it. Further, that intervener effectively represented the interests of the media, an interest which for reasons I shall come to, I am satisfied the plaintiff also shared.

There is no absolute general requirement that a judicial order must be accompanied by reasons. The due administration of justice may in situations of urgency require that an order be made without reasons. Further in the case of interim orders it may be that little purpose is served by the provision of reasons, when it is apparent that the appropriateness of an ongoing order resolutive of an underlying dispute between the parties will shortly be determined. In Soulemezis v Dudley (Holdings) Pty Ltd,[41] McHugh JA said:
[41](1987) 10 NSWLR 247.

The giving of reasons for a judicial decision serves at least three purposes. First, it enables the parties to see the extent to which their arguments have been understood and accepted as well as the basis of the judge's decision. As Lord MacMillan has pointed out, the main object of a reasoned judgment “is not only to do but to seem to do justice”.[42] Thus the articulation of reasons provides the foundation for the acceptability of the decision by the parties and by the public. Secondly, the giving of reasons furthers judicial accountability. As Professor Shapiro has recently said:[43]
“… A requirement that judges give reasons for their decisions — grounds of decision that can be debated, attacked, and defended — serves a vital function in constraining the judiciary's exercise of power.”

Thirdly, under the common law system of adjudication, courts not only resolve disputes — they formulate rules for application in future cases.[44] Hence the giving of reasons enables practitioners, legislators and members of the public to ascertain the basis upon which like cases will probably be decided in the future.
However, neither the need nor the appearance of justice requires that reasons be given for every decision made by a judicial tribunal.[45] In the course of an action, a judge may make many decisions concerning interlocutory matters which cannot reasonably be held to require reasons.[46] Justice is a multi-faceted concept. In determining whether justice was done and seen to be done other interests and values, beside the giving of reasons, have to be considered. The limited nature of judicial resources and the cost to litigants and the general public in requiring reasons must also be weighed. For example, many questions concerning the admissibility of evidence may require nothing more than a ruling: in New South Wales common law judges have long held that they are not obliged to hear argument on the admissibility of every question of evidence let alone give reasons. It all depends on the importance of the point involved and its likely effect on the outcome of the case.
But when the decision constitutes what is in fact or in substance a final order, the case must be exceptional for a judge not to have a duty to state reasons. [47]

[42]The Writing of Judgments (1948) 26 Can Bar Rev, 491.

[43]In Defence of Judicial Candor (1987) 100 Harv L Rev 731, 737.

[44]Taggart “Should Canadian Judges Be Legally Required to Give Reasoned Decisions In Civil Cases” (1983) 33 University of Toronto Law Journal 1, 3-4.

[45]R v Awatere [1982] 1 NZLR 644, 649; Public Service Board of New South Wales v Osmond (1985–1986) 159 CLR 656, 667

[46]Capital and Suburban Properties Ltd v Swycher [1976] Ch 319, 325, 326.

[47]Ibid, 279.

This was not a case where the order in issue was in fact or substance a final order. The proceeding was still on foot and final orders had not been made.

In Perkins v County Court of Victoria & Ors,[48] Buchanan JA with whom Phillips and Charles JJA agreed, stated as follows with respect to a submission that there was error on the face of the record in that a County Court judge’s reasons did not contain findings of fact necessary to the making of an order.[49]
[48](2000) 2 VR 246.
[49]Findings which established that it was necessary to handcuff the appellant in order to prevent his escape or the commission or continuation of a criminal offence or that it was necessary to apprehend the appellant to ensure his appearance at court.

55The submission was founded upon the proposition that a judicial tribunal is obliged in law to state reasons for its decisions. The notion that such a duty exists is of comparatively recent origin, and appears to be the product of the introduction of appellate courts and the decline of jury trials. Statements of the need for reasons to be given in order to prevent the frustration of the right of appeal were made with increasing frequency as the twentieth century progressed. In Pettitt v Dunkley it was held that a trial judge's failure to give reasons constituted an error of law. Moffit JA, with whom Manning JA agreed, linked the duty to the right of appeal, saying:
I do not think there is any judicial duty to state reasons except so far as such duty can be related to a right of appeal.

The remaining member of the court, Asprey JA, holding that the want of reasons constituted an error of law, similarly relied on the effect which want of reasons had upon a right of appeal, but he also rested his opinion on wider ground, speaking of “the function which the law calls upon him as a judicial person to exercise”. In Public Service Board (NSW) v Osmond Gibbs CJ referred to Pettitt v Dunkley saying that “The decision in that case that the failure to give reasons was an error in law may have broken new ground.” In Housing Commission (NSW) v Tatmar Pastoral Co Pty Ltd Mahoney JA, referring to Pettitt v Dunkley, said that a statement of reasons may be necessary to enable a party to exercise his right of appeal. He went further, saying:
But, in my opinion, the requirement that reasons be given should not be limited to a case where there is an appeal. There is as yet no finally authoritative decision on this question. I think that the requirement should be seen as an incident of the judicial process.

56There is no general principle that a court's failure to give reasons is an error of law which vitiates the court's decision. That is not to deny the importance of the giving of reasons to the process of judicial decision-making. Want of reasons may amount to an error of law where the absence of reasons would frustrate a right of appeal, although even where a right of appeal exists, the nature of the decision and the circumstances of the case may require no more than a brief ruling, and, where an appeal is de novo, an absence of reasons for the decision below can have no effect. Moreover, the provision of reasons for decisions affecting persons’ rights and liabilities is usually desirable, serving objectives such as candour in decision-making, the accountability of decision-makers, the reconciliation of parties to the results of litigation and promoting the drawing of conclusions which are rational and soundly based on legal principles. Nevertheless, the general desirability of reasons, and in certain cases their necessity, in my view are not sufficient considerations to found an all-embracing principle that failure to state reasons or adequate reasons for a judicial decision constitutes an error of law vitiating the decision. [50]

[50]Ibid, [55]-[56] (citations omitted; emphasis added).

In the present case (as in Perkins’ case) there was no right of appeal from the County Court judge’s decision.[51] Likewise as Buchanan JA went on to observe in Perkins’ case it cannot be that reasons were necessarily required to be given in order to facilitate the exercise of the right to bring proceedings for judicial review. As his Honour said, if that was so, reasons would be required to be given for every administrative decision subject to judicial review but as the High Court held in Public Service Board (NSW) v Osmond, there is no general rule which requires reasons to be given for administrative decisions, even those liable to adversely affect a person’s rights or interests.
[51]Ibid, [57].

Further, as I have said, the order in issue was not a final order in the sense referred to by McHugh JA in the case of Soulemezis.[52] Rather it was interlocutory in nature. As such there was in effect an appeal de novo available, in that the Court remained open to an application for variation (as her Honour demonstrated on 26 May 2008) and the full merits of the ESO application and consequential orders remained to be considered on the date fixed for final hearing.
[52]Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247.

Insofar as the provisions of the Act in issue are concerned, s 35 requires the giving of reasons with respect to orders made under Part 2 of the Act (including ESOs). There is no such requirement with respect to orders made under Part 5 including suppression orders made under s 42.

It follows, in my view, that it cannot be said her Honour committed jurisdictional error in failing to give reasons for the suppression order in issue. It also follows that it is difficult, given the nature of the order in issue, to conclude that the failure to give reasons in the circumstances of this case constituted an error of law on the face of the record which vitiated the suppression order. This is not to say of course that her Honour could not have been required to give reasons for the order by a party affected by it. In Victoria such reasons can be requested of a judge of the County Court pursuant to s 8 of the Administrative Law Act 1978. No such request has been made in the present case however and the plaintiff does not seek an order for reasons, he seeks simply to set aside the substantive order.

The plaintiff relies on two South Australian cases – State of South Australia v Carter and Myers,[53] and Herald & Weekly Times Limited v Department of Public Prosecutions and Vlassakis.[54] In the first Cox J stated that there was an obligation upon a judge to making a suppression order under one or other of the heads of power set out in the South Australian Evidence Act to indicate reasons for the making of the order. His Honour expressed the view that just a sentence or two would be sufficient so that the parties and, if necessary, any appeal court would not be left to speculate about the reasons for the making of the order. In the second case, Lander J (with whom Bleby J agreed on this point) expressed agreement with the remarks of Cox J and stated that the obligation to give reasons was no different to the obligation imposed upon a court when considering applications for leave to appeal, where to not give reasons would be exceptional.[55] He further observed that the obligation to give reasons was implicit in the requirement of the South Australian statute to report to the Attorney‑General setting out particulars of the reasons for which the order was made.
[53]1991 161 LSJS 325.
[54][2003] SASC 234.
[55]Roy Morgan v State Revenue (Vic) (2001) 207 CLR 72, 83.

He also said the reasons need not be extensive but they should at least identify the source of the power to make the order ie whether the order was made to prevent prejudice to the proper administration of justice or to prevent hardship to any of the persons contemplated by the statute. He expressed the view the Court’s obligation was to identify the source of the power and the reasons for the exercise of it, with sufficient particularity to allow any party to the proceeding or any representative of the media and in due course any appeal court to understand the reasons for the decision.

The order made by her Honour Judge Hannan can be distinguished from those under consideration in the South Australian cases first by reason of the fact that it was in substance and effect an interlocutory order. Secondly, the statutory regime was not directly analogous. The South Australian statute provided rights of appeal with respect to the decision in issue and as Buchanan JA makes clear in the passages set out above, want of reasons may amount to an error of law where the absence of reasons would frustrate a right of appeal. Thirdly, the South Australian regime involved the potential employment of different heads of power. The present case is concerned with the application of a single power. Fourthly, the South Australian regime required reasons to be given to the Attorney‑General.

In my view the failure by her Honour Judge Hannan to give reasons for the making of the suppression order in issue under the Victorian Act, did not amount to an error of law having regard to the interlocutory circumstances in which the orders were made. Further, if I am wrong in this conclusion I am of the view that discretionary relief in the nature of certiorari or in the nature of a declaration would not have been granted if a challenge had been made to the orders during their currency when a further hearing of the merits with respect to the appropriateness of such orders was pending. This is not to say of course that application could not have been made for reasons to the County Court and the provision of such reasons if refused would not have been compelled by this Court. Nor is it to say that application for variation of the order could not have been made to the County Court as was in fact made by HWTL.

There is however a further problem which confronts the plaintiff. The second, third and fourth defendants each submit that the plaintiff has been less than frank in purporting to explain the lateness of the institution of the proceedings before me. In particular he has not deposed as to when he first became aware of the suppression orders in issue. Insofar as the application made with respect to the order of her Honour Judge Hannan is concerned, the plaintiff has also not deposed as to whether he was aware of the application by HWTL to set aside the suppression order, nor has he deposed as to when he first sought legal advice with respect to the effect of or validity of such suppression order, nor has he explained why there was extended delay after he was charged before approaches were first made to the County Court for transcript.

The plaintiff’s solicitors have simply deposed as to when they, acting as solicitors for the plaintiff in respect of the criminal charges which he faces, first obtained copies of the transcripts of the initial proceedings before her Honour Judge Hannan.

Redacted transcripts of both the initial hearings before Judge Hannan were obtained by the plaintiff’s solicitor on 17 February 2009.[56] The plaintiff’s solicitor’s affidavit of 27 February 2009 explains further delay as follows:

The originating motion has not yet been filed due to the applicant’s legal adviser’s unsuccessful attempts to obtain copies of the transcripts or reasons for decision of the other suppression order hearings, ie those before Her Honour Judge Millane on 20 December 2007 and Her Honour Judge Rizkalla on 4 July 2008. We have requested the transcripts in redacted format so that the identity of the victims and any relevant addresses are removed.[57]

[56]This occurred after an order seeking to facilitate access to the transcript had been obtained from Chief Judge Rozenes on 1 December 2008 and unsuccessful requests for the transcript had been made to the second defendant on 4 December 2008, leading to further inquiries, culminating in a successful application to Judge Hannan to authorise release of the transcript from VGRS.

[57]Courtbook 42.

Insofar as the core allegation made with respect to the suppression order made by her Honour Judge Hannan relates to the non‑provision of reasons, that basis was known to the plaintiff’s legal advisers by 17 February 2009.

In turn, the plaintiff’s written submissions filed in reply to outlines filed on behalf of the defendants seek to explain initial delay prior to this date and to answer the complaint that the plaintiff’s evidence contains a number of gaps as to the sequence of events in the following manner:

Prior to the plaintiff being charged on 29 September 2008 with five counts of publishing material contrary to, inter alia, the orders made on 20 December 2007 and 21 April 2008, the plaintiff did not have standing to challenge the suppression orders (Mirror Newspapers Limited v Waller,[58] Herald & Weekly Times Limited v Gregory D Williams,[59]). Prior to then, the plaintiff shared the adverse consequences of the orders with the rest of the public (Waller, at 9). Once he was charged, the plaintiff had an interest above the rest of the public in making an application to quash suppression orders. Accordingly, the plaintiff’s knowledge prior to 29 September 2008 is irrelevant.

[58](1985) 1 NSWLR 1, 7-9.

[59](2003) 130 FCR 435, [1], [17].

I do not accept this submission. It is apparent from the material before the Court that the plaintiff is not merely an anonymous journalist, but a person in the business in part of making regular media publications under his own name utilising a website linked to other media outlets. Indeed the electronic publication forming the subject of one of the alleged breaches of the suppression order in issue, constitutes just such a release as is plain from its terms. As such the plaintiff has precisely the business interest identified in Mirror Newspapers Limited v Waller by Hunt J.[60] The conduct of his business was affected by the order of the Court. He was one of the group of people to whom the order was directed. He did not simply share the adverse consequences of that order with the rest of the public. The material exhibited before this Court shows that he himself constituted a member of the media in the sense contemplated in Herald & Weekly Times Limited v Williams & Ors.[61]
[60](1985) 1 NSWLR 1.
[61](2003) 130 FCR 435, 440, [17].

Although ‘special circumstances’ are not limited to the reasons why the application was not made in time, it is such reasons which are advanced in the present case. Evidence which explains why as a matter of procedural fairness a plaintiff should be allowed to institute judicial review proceedings out of time, will necessarily be relevant (if not decisive in many cases) in respect of the question whether special circumstances exist justifying such institution.

As I have said, the transcript evidence shows that following the making of the suppression order by Judge Hannan, a media organisation made application to vary that order and did so expressly on the basis of the transcript of the initial hearing. Yet, there is no material before the Court as to the knowledge, state of mind or actions of the plaintiff in respect of the legal consequences of the order during the 60 days which followed the making of the order or the subsequent period up until institution of these proceedings. There is no frank disclosure of potentially relevant circumstances.

In these circumstances, I am simply not satisfied that the plaintiff has given an adequate explanation for delay in the making of application for relief in the nature of certiorari in relation to the order made by her Honour Judge Hannan. The fact that the order has potentially serious consequences for him is not in my view sufficient if the circumstances of the delay in issue are not fully and properly explained. I am not satisfied that he has brought himself within the terms of Rule 56.02(3) and accordingly I would not grant an extension of time for the commencement of this proceeding even if I am wrong that its substantive basis must fail.

The proceeding will be dismissed.

SCHEDULE OF PARTIES

No. 6224 of 2009
BETWEEN:
DERRYN NIGEL HINCH	Plaintiff
- and -
COUNTY COURT OF VICTORIA	Firstnamed Defendant
DIRECTOR OF PUBLIC PROSECUTIONS (VIC)	Secondnamed Defendant
SECRETARY OF THE DEPARTMENT OF JUSTICE (VIC)	Thirdnamed Defendant
GT	Fourthnamed Defendant
MAJ	Fifthnamed Defendant

[2009] VSC 548

3 December 2009