Hornsby v. Kaschke

[1999] VSCA 153

SUPREME COURT OF VICTORIA

COURT OF APPEAL	Not Restricted
No. 6321 of 1997

DARREN JOHN HORNSBY	Appellant
v
GERHARD ERIK KASCHKE and
THE MAGISTRATES' COURT OF VICTORIA	Respondents

---

JUDGES:	CALLAWAY, BATT and CHERNOV, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	15 September 1999
DATE OF JUDGMENT:	15 September 1999
MEDIA NEUTRAL CITATION:	[1999] VSCA 153

---

APPEAL - Order for pretrial delivery made by Magistrates' Court quashed by Supreme Court on judicial review - Judgment of Supreme Court held to be interlocutory - Costs - Appeal dismissed as incompetent - Supreme Court Act 1986, s.17A(1)(b),(4)(b).

---

APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr. P.G. Priest, Q.C.	Woodhams O'Keeffe & Co.
and Mr. M.J. Croucher
For the first Respondent	Mr. B.M. Dennis	Victorian Government Solicitor

The second Respondent submitted to the order of the Court.

CALLAWAY, J.A.:

1. In 1997 the appellant had been charged with offences against s.49(1)(b) and (f) of the Road Safety Act 1986. Believing that he had reason to contend that the relevant breath analysing instrument was not in proper working order or not properly operated, he applied to the Magistrates' Court for an order that the first respondent forthwith make available and deliver to his solicitors -

   (a)        Drager Alcotest 7110, serial number MRFK-0014;

   (b)        the software and/or any other apparatus or device used in connexion therewith; and

(c) any technical data, operator's or user's manual and/or
manufacturer's instructions in relation to the use and
operation thereof and any software used in connexion therewith.

The learned Magistrate made an order to that effect, in respect of which the first respondent sought judicial review in the Supreme Court.

1. The application for judicial review came on for hearing before Balmford, J. Her Honour accepted that the Magistrate had power to order pretrial disclosure of the things mentioned in paragraphs (a), (b) and (c) of the order, but held that such disclosure was not the same as uncontrolled pretrial delivery. Neither s.136 of the Magistrates' Court Act 1989 nor any incidental power of the Magistrates' Court, her Honour said, could authorize an order that a machine be handed over to someone else, out of the control of the owner and with no restrictions on what could be done with it. Senior counsel for the appellant below had submitted that, if the court were of that opinion, the matter might be sent back to the Magistrates' Court, but her Honour did not take that course. On 5 June 1998 she gave judgment that the order of the Magistrates' Court be quashed and that the appellant pay the first respondent's costs.

2. Against that judgment the appellant has purported to appeal as of right, save in one respect. Ground 3 of his notice of appeal challenges the order for costs below. It is not contested that leave to agitate that ground is required under s.17A(1)(b) of the Supreme Court Act 1986. When the appeal was called on for hearing, however, the Court raised the further question whether the judgment given on 5 June 1998 was itself an interlocutory judgment. See s.17A(4)(b). Mr Priest made preliminary submissions and the matter was stood down. When we resumed counsel contended that the judgment was final. In the alternative, he sought leave to appeal. He also made the foreshadowed application under s.17A(1)(b). We called on Mr Dennis only on the question whether the judgment was final or interlocutory.

3. In my opinion the judgment against which the appellant desires to appeal was interlocutory: see and compare Brincat v. R (unreported, Full Court, 17 March 1995) at 3 and X v. Director of Public Prosecutions [1995] 2 V.R. 622 at 623 and 624. The observations of Winneke, P. in Brygel v. O'Keefe (unreported, Court of Appeal, 17 April 1997) especially at 7 and the decisions of the Full Court and of this Court in Hansford v. His Honour Judge Neesham [1995] 2 V.R. 233 and Thompson v. His Honour Judge Byrne [1998] 2 V.R. 274 are clearly distinguishable. They were all cases of refusal of relief in the nature of certiorari. It may well be that such refusal finally determined the rights of the parties in a principal cause: cf. Hall v. Nominal Defendant (1966) 117 C.L.R. 423 at 443 per Windeyer, J.

4. No other authority, except certain observations in Brygel at an earlier stage, (unreported, 10 November 1995) at 3, was cited to us in support of the contention that Balmford, J.'s order was final. Although neither Brincat nor X concerned judicial review, the logic of those two decisions points strongly to the conclusion that her Honour's judgment was interlocutory. It was ancillary to the proceedings in the Magistrates' Court. That being so, leave to appeal is necessary under s.17A(4)(b). It is not suggested that any of the exceptions is applicable.

5. I turn therefore to the question whether leave should be granted, approaching that question in the conventional manner but considering first the issue of substantial injustice. For it is not readily apparent why the judgment below, to the extent that it may be attended by doubt, occasions substantial injustice to the appellant. Balmford, J. decided the question of power in his favour. While that decision stands, and I say nothing as to its correctness or otherwise, the appellant may return to the Magistrates' Court and seek another order of a different or more limited kind.

6. Mr Priest referred this morning to the burden of costs incurred by his client and to the likelihood that the first respondent will mend his hand if a fresh application is made to the Magistrates' Court. I do not attach weight to the former factor nor, in the circumstance of this case, do I think that the latter avails the appellant. The decision to quash the order made in the Magistrates' Court is not attended by sufficient doubt. I think that is so even if the first respondent failed to object to the width of the order when it was sought. The only aspect of her Honour's disposition of the case that may be attended by doubt is her not remitting the matter to the Magistrates' Court, but that, too, would have given the first respondent an opportunity to mend his hand.

7. Mr Priest submitted that it was in the public interest for this Court to decide whether the Magistrates' Court has power to make orders such as these and, if so, the kinds of orders that may be made and the safeguards to which they should be subject. In my view this case is not an appropriate occasion for the Court to accede to that invitation. The order made was too wide and Mr Dennis does not intend to argue that the learned judge was wrong on the question of power.

8. Section 17A(1)(b) was recently considered by this Court in Etna v. Arif [1999] VSCA 99 at [60] and following. The test is not whether we should have exercised the discretion in the same way as the primary judge but whether there was or were a ground or grounds on which she could reasonably do so. In this case the first respondent was wholly successful as to the relief he sought. The order made in the Magistrates' Court was quashed. True it is, as Mr Priest reminded us, that the appellant enjoyed a large measure of success and that her Honour found it unnecessary to decide a number of the issues that had been debated, but in my opinion it was open to her to consider that this was a case of a respondent havingseveral strings to his bow rather than a case of separate issues requiring differentiation in the matter of costs.

9. For these reasons I would refuse the leave that is sought both under s.17A(1)(b) and (4)(b) and dismiss the appeal as incompetent. Subject to any submissions by counsel, I think there should be no order as to the costs of the appeal, the objection to competency having been taken by the Court and not by the respondent.

BATT, J.A.:

1. I agree. The view that her Honour's order is interlocutory is also supported by authorities such as Schmidt v. Won [1998] 3 V.R. 435 holding that an order granting or refusing preliminary discovery under Rule 32.03 or Rule 32.05 is interlocutory.

2. Mr Priest submitted that her Honour's order was a final order on the application in the Supreme Court for judicial review in the nature of certiorari. He pointed out that a further application could not be made to her Honour, but that is true also of an order granting preliminary discovery of all the documents the subject of the originating motion filed to commence the application for preliminary discovery. Such an order, as I have said, has been held more than once to be interlocutory.

CHERNOV, J.A.:

I agree with the other members of the Court that the order of Balmford, J. was an interlocutory one. In my view, it was ancillary to the proceeding in the Magistrates' Court in which the appellant was charged with offences under the Road Safety Act. The mere fact that her Honour's order determined the proceeding between the parties commenced by the originating motion did not make her order a final one; it did not determine finally the rights between the parties in the relevant proceeding.

1. I also agree that for the reasons given by the learned presiding judge, leave to appeal should be refused. The particular order made by the Magistrate was too wide and in the circumstances it is not to the point that in the Magistrates' Court the first respondent did not argue that if, contrary to his primary submission, an order in relation to the disclosure of the instrument and the other things were to be made, it should be in terms more narrow than those proposed by the appellant. I also agree that, for the reasons given by Callaway, J.A., leave to appeal against her Honour's costs order should be refused.

CALLAWAY, J.A.:

1. The orders of the Court are -

1.	The applications for leave to appeal under s.17A(1)(b) and 4(b) of the Supreme Court Act 1986 are refused.
2.	The appeal is dismissed.

---