Jack Cai v The County Court of Victoria and Michelle Corbett of the Traffic Camera Office
[2017] VSCA 109
•11 May 2017
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCI 2017 0031
| JACK CAI | Applicant |
| v | |
| THE COUNTY COURT OF VICTORIA | First Respondent |
| MICHELLE CORBETT of the TRAFFIC CAMERA OFFICE | Second Respondent |
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APPLICATION FOR LEAVE TO APPEAL
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| JUDGES: | PRIEST and BEACH JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | On the papers |
| DATE OF JUDGMENT: | 11 May 2017 |
| MEDIUM NEUTRAL CITATION: | [2017] VSCA 109 |
| JUDGMENT APPEALED FROM: | Cai v County Court of Victoria & Ors [2016] VSC 427 (John Dixon J) |
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ADMINISTRATIVE LAW – Judicial review of decision by County Court judge concerning response to subpoena duces tecum refused – Traffic offence – Appeal to County Court following conviction by magistrate – Subpoena seeking production of red light camera manual – Subpoena initially struck out as fishing – Relief in nature of certiorari and mandamus granted by Supreme Court – On remitter to County Court further sections of manual provided to applicant – Originating motion seeking inspection of entire manual dismissed in Supreme Court – Application for leave to appeal – Application for stay of costs order – No error – Application for leave to appeal ‘totally without merit’ – Applications refused – Supreme Court Act 1986 s 14D.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | In person | |
| For the First Respondent | No appearance | |
| For the Second Respondent | Mr S T Russell | Maddocks |
PRIEST JA
BEACH JA:
A conviction for a traffic offence is challenged
Mr Jack Cai, the applicant has, among other occupations, that of driving instructor. He is aggrieved by his conviction in 2013 for entering an intersection against a red arrow, which resulted in him being fined $352.00 with $73.20 statutory costs.
Rule 60 of the Road Safety Road Rules 2009 provides that a driver turning at an intersection must not enter the intersection or marked foot crossing in the direction of a red traffic arrow.[1]
[1]Rule 60 is in the following terms:
60 Proceeding through a red traffic arrow
If traffic arrows at an intersection are showing a red traffic arrow, and a driver is turning in the direction indicated by the arrow, the driver must not enter the intersection or marked foot crossing.
Penalty: 10 penalty units.
At the Magistrates’ Court at Moorabin on 3 December 2013, Mr Cai faced a charge that he:
At Clayton South on [12 March 2013], being a driver of a vehicle on a road named Springvale Road and, at traffic lights showing a red arrow at the intersection with Wellington Road and, turning in the direction indicated by the traffic arrow, did enter the intersection against the red traffic arrow.
The evidence establishing the prosecution case was from a prescribed road safety camera,[2] a certificate under s 83A of the Road Safety Act 1986 having been tendered.[3] Among other things, the certificate purported to have been issued by an authorised person, Mr Kevin Lai, and it certified that the relevant camera — the REDFLEX red-speed HDX system — was a prescribed road safety camera. Importantly, the certificate also contained a photograph with an annotation that, ‘When [Mr Cai’s] vehicle entered in the intersection 2.2 seconds had elapsed since the lights turned red’. In other words, the applicable traffic arrow had been red for 2.2 seconds when Mr Cai’s vehicle entered the intersection.
[2]See Road Safety Act 1986, s 3(1), and Road Safety (General) Regulations 2009, reg 30.
[3]Section 83A provides:
83A Evidence relating to prescribed road safety cameras
(1) A certificate containing the prescribed information purporting to be issued by an authorised person certifying—
(a)that a prescribed road safety camera was tested, sealed or used in the prescribed manner; or
(b)that an image or message described in the certificate was produced by a prescribed road safety camera or by a prescribed process; or
(c)as to any other matter that appears in, or that can be determined from, the records kept in relation to the prescribed road safety camera or the prescribed process by the police force of Victoria—
is admissible in evidence in any proceedings and, in the absence of evidence to the contrary, is proof of the matters stated in the certificate.
Mr Cai gave evidence denying the charge. His evidence was that he did not disobey a red traffic arrow. He told the court that he saw a yellow right direction arrow when his car passed the stop line and that his car entered the intersection before the red arrow came on.
Mr Cai issues three subpoenas
Being disappointed by the decision of the Magistrates’ Court, Mr Cai lodged an appeal to the County Court against his conviction. He then caused three subpoenas to be issued. One subpoena was directed to the ‘Traffic Camera Office (Kevin Lai)’, and a second to ‘SGS Australia Pty Ltd, Yiling Ling’, seeking testing and service records for the relevant camera (‘the records subpoenas’). A third subpoena was directed to the ‘Traffic Camera Office (Michelle Corbett)’, seeking production of the operation, test, and training manual, relating to the ‘Red Hex HDX system’ [sic] (‘the manual subpoena’).
The first application for judicial review before Ginnane J
On 24 June 2014, a judge of the County Court (‘the first judge’) set aside the three subpoenas, prompting Mr Cai to seek judicial review of that decision pursuant to Order 56 of the Supreme Court (General Civil Procedure) Rules 2005.
The proceeding for judicial review came before Ginnane J.[4] His Honour found no error with respect to the records subpoenas, observing:[5]
Mr Cai produced no evidence nor provided any basis before the judge to suggest that the service records might materially assist his defence. He speculated that they might. That speculation did not provide a legitimate forensic purpose for the production of the documents. No error of law or jurisdictional error appears in his Honour’s decision to set aside the two records subpoenas.
[4]Cai v The County Court of Victoria [2015] VSC 267.
[5]Ibid [33].
Ginnane J reached a different view with respect to the manual subpoena. He was of the opinion that the first judge did not identify or consider the basis on which Mr Cai argued that he had a legitimate forensic purpose for issuing the manual subpoena. Mr Cai had stated a legitimate forensic purpose to justify production of the manual. The only issue in the proceeding was whether his vehicle entered the intersection against the red arrow. To prove that it had, Ginnane J observed, the prosecution relied on the certificate under s 83A. Mr Cai was entitled to produce evidence to the contrary. He wanted to establish the point at which the photograph, the camera and the time clock treated his vehicle as having first entered the intersection, in order to challenge certain material contained in the photograph. Ginnane J said:[6]
The judge proceeded on the basis that Mr Cai wanted to know whether the sensors were working properly. That would have been a fishing expedition. However, Mr Cai indicated that he was attempting to establish a different point. He wanted to establish the point at which the photograph, the camera and the time clock treated his vehicle as having first entered the intersection, in order to challenge the 2.2 second time elapse annotation contained on the photograph.
I consider, with respect, that his Honour did not identify or consider the basis on which Mr Cai argued that he had a legitimate forensic purpose for issuing the manual subpoena. There was, of course, no definite proof that the contents of the manual would assist his case, but as Gibbs CJ stated in Alister v R:[7]
Although a mere ‘fishing’ expedition can never be allowed, it may be enough that it appears to be ‘on the cards’ that the documents will materially assist the defence.
His Honour applied the applicable legal principle of legitimate forensic purpose. However, I consider, with respect, that his Honour did not address the relevant questions and issues raised by Mr Cai’s statement of his purpose for issuing the manual subpoena and made an error of law in the sense discussed in the passage that I have quoted from Craig v State of South Australia.[8]
That error of law appeared in his Honour’s reasons and therefore on the face of the record.
[6]Ibid [48]–[51].
[7](1984) 154 CLR 404, 414.
[8](1995) 184 CLR 163.
Ginnane J thus gave relief in the nature of certiorari quashing that part of the order of 24 June 2014 that set aside the subpoena directed to the ‘Traffic Camera Office (Michelle Corbett)’. His Honour also made an order in the nature of mandamus remitting that subpoena ‘to be dealt with according to law and in accordance with these reasons’.[9] Significantly, Ginnane J did not deal with the question of public interest immunity that had been raised by the third defendant, ‘Michelle Corbett of the Traffic Camera Office’. His Honour said:[10]
In written submissions, the third defendant also relied on public interest immunity in answer to the production of documents pursuant to Mr Cai’s subpoenas, but no material was filed in support of that claim. The third defendant expressed a general concern about possible misuse of documents produced pursuant to the subpoenas. However, documents produced pursuant to subpoena are subject to an implied undertaking that they will only be used for the purpose of the proceeding.[11] Breach of that undertaking may constitute a contempt of court.
[9]Cai v The County Court of Victoria [2015] VSC 267, [52].
[10]Ibid [45].
[11]Hearne v Street (2008) 235 CLR 125, 154–5 [96]–[97].
Events subsequent to the first application for judicial review
Following Mr Cai’s partial success before Ginnane J, in July 2015, the Traffic Camera Office provided Mr Cai with several pages extracted from the relevant manual, along with several other documents, which it contended responded to the legitimate forensic purpose identified by Ginnane J; but, on 22 September 2015, gave notice that it would be objecting on grounds of public interest immunity to the inspection of the whole manual by Mr Cai (apart, of course, from those parts already provided).
On 10 December 2015, the matter came before another judge of the County Court (‘the second judge’). The Traffic Camera Office submitted that it had provided to Mr Cai those parts of the manual that related to the legitimate forensic purpose identified by Ginnane J, and objected to the applicant’s inspection of the rest of the manual because of lack of relevance and public interest immunity. Mr Cai argued that he was entitled to inspect the entire manual produced under subpoena.
The second judge inspected the whole of the manual for relevance to Mr Cai’s defence, considering that this approach would avoid the need to rule on the public interest immunity objection. His Honour declined to allow Mr Cai to inspect the whole manual, but identified two additional sections that he ordered be provided. In light of the second judge’s approach, the Traffic Camera Office did not call evidence or make submissions on public interest immunity.
The second application for judicial review before John Dixon J
Mr Cai sought judicial review of the second judge’s decision, naming the County Court of Victoria and the Registrar of that court as the first and second defendants, and ‘Michelle Corbett, Traffic Camera Office’ as third defendant. The proceeding was heard by John Dixon J. His Honour refused the relief sought,[12] and ordered Mr Cai to pay the third defendant’s costs fixed at $5000. In his reasons, John Dixon J made some observations about the difficulties flowing from the fact that Mr Cai was unrepresented before him:[13]
[12]Cai v The County Court of Victoria & Ors [2016] VSC 427.
[13]Ibid [6].
The plaintiff is not legally qualified, was self-representing, and is not fluent in English. Through most of the hearing before me, the plaintiff was assisted by an interpreter. It is clear that the plaintiff has either not read, or not understood, the order made by Ginnane J or his Honour’s reasons, and failed to appreciate the course that events would take once the manual subpoena was remitted to the County Court.
His Honour also observed:[14]
The plaintiff filed three versions of his affidavit in support of the application. However, he relied only on the third version of it. Much of each affidavit was objectionable, being either irrelevant or amounting to scandalous allegations against members of the profession and judicial officers for which there was no identifiable basis. Other aspects of the affidavit were submissions. The only proper approach, having regard to the size of the task of sorting the wheat from the chaff, was to strike out the entire affidavit. However, having regard to the plaintiff’s want of legal assistance and the nature of the defendant’s objections, I have confined my consideration of the plaintiff’s third affidavit to the paragraphs that address the issues in this application and the plaintiff’s submissions in respect of those issues, but nothing more.
[14]Ibid [29].
It is convenient to set out his Honour’s essential reasons for refusing relief, which again underscore some of the difficulties that flowed from Mr Cai being unrepresented:[15]
[15]Ibid [32]–[37] (citations in original).
It is well established that the law will permit interference with an exercise of the direction, such as that which fell to the primary judge on the remittal of the plaintiff’s subpoena, in only very limited circumstances as set out above.[16] As Osborn J stated in Hobsons Bay City Council v Viking:[17]
In order to succeed in an appeal of this type the appellant must satisfy the Court that the Magistrate’s decision was vitiated by reason of the matters to which he or she had regard, or that the decision was simply not open to him or her.
It is immaterial that this court could conclude that it might have exercised the discretion differently if the discretion had been conferred on it in the first instance.
I am unable to identify any error in the approach taken by the [second] judge, who had the relevant documents before him, including the manual and the order and reasons of Ginnane J. Although repeatedly pressed by the plaintiff, the fact that the primary judge did not have regard to the transcript of the hearing at which Ginnane J delivered judgment was irrelevant. This is because the plaintiff fundamentally misunderstands that, firstly, the court acts by making judgments and that it is the authenticated judgment that constitutes the decision amenable to judicial review in this proceeding. It is the formal order of the court, and not any snippet of transcript that constitutes the court’s judgment, especially transcript of proceedings after reasons for judgment are pronounced. The words used by his Honour when explaining his decision were spoken in an attempt to assist the plaintiff to understand the procedure that would follow now that judgment had been pronounced. The primary judge would have fallen into error had he preferred that statement to the authenticated order and the published reasons.
The plaintiff has not substantiated any alleged error of law on the part of the [second] judge. The judge’s approach to his task was entirely proper. The judge was clearly satisfied upon examining the full manual that, apart from the few sections identified, there was no further material within it that met the legitimate forensic purpose identified by Ginanne J. The judge did all that he was required to do.
I do not accept the plaintiff’s general submission that he was not given a ‘fair go’. I have reviewed the transcript of the hearing before the primary judge in its entirety and considered the plaintiff’s additional submissions in relation to it. While it appears that the primary judge may have found the hearing somewhat trying due to the plaintiff’s lack of respect and constant interruptions, there was no unfairness to the plaintiff discernible in the transcript as a consequence.
The manner in which the hearing proceeded, including the plaintiff’s constant interruptions and the judge’s response to them could only be relevant on questions of fairness if pertinent to the judge’s task. The plaintiff undoubtedly feels that he was denied the opportunity to make fulsome submissions, however his feelings were based on a clear misunderstanding of the purpose of the hearing and of the hearings that preceded it. The plaintiff exhibited a firm belief in his entitlement to the entire manual irrespective of his lawful rights to the extent that he refused to listen to attempts to explain procedures and principles to him in order to assist him, whether that be by the primary judge or by me. There is no basis to consider that he was treated unfairly in all of the circumstances.
The plaintiff is understandably unhappy with a decision which has gone against him. Other minds may, or may not, have reached a different conclusion. That possibility is inevitable where the decision is discretionary, and is not of itself a ground for interfering with it. No specific error has been established and the circumstances looked at in their totality, do not suggest error by the primary judge.
[16]See also House v R (1936) 55 CLR 499, 504-505; Lovell v Lovell (1950) 81 CLR 513, 518-519 and 532-533; Australian Coal and Shale Employees’ Federation v The Commonwealth (1953) 94 CLR 621, 627.
[17][2010] VSC 386, [42].
The applications before the Court of Appeal and their resolution
There are now three applications before this Court relating to the decision of John Dixon J. First, Mr Cai seeks leave to appeal against that decision; secondly, given that he failed to file the application for leave to appeal within the prescribed time, he seeks an extension of time to do so; and, thirdly, he seeks a stay of the costs order.
We will grant the application for an extension of time in which to file the application for leave to appeal, since that application was not opposed.
For the reasons that follow, however, we will refuse the application for leave to appeal. In our view, the application is totally without merit and must therefore be refused. And given our conclusions on the application for leave to appeal, there is no basis for granting a stay of the costs order.[18]
[18]The second respondent filed notices that it did not intend to respond to or contest either the application for an extension of time or the application for a stay of the costs order.
In his notice of application for leave to appeal — which names the County Court of Victoria[19] and the Traffic Camera Office respectively as the first and second respondents — Mr Cai relies on five proposed grounds of appeal as follows:[20]
[19]In accordance with R v Australian Broadcasting Tribunal; ex parte Hardiman & Ors (1980) 144 CLR 13, the County Court did not seek to take an active role in the application (save as to costs).
[20]Footnotes as in original.
1. [John Dixon J] erred in construing the decision of Ginnane J made 12 June 2015 in proceeding SCI 2014 4324[21] as giving the applicant a right to have access to part, but not the whole of the manual.
[21][2015] VSC 267, at [46]–[52].
2. His Honour erred in not considering that because Ginnane J[22] had quashed that part of the order in the County Court of Victoria below that set aside the applicant/appellant’s subpoena issued in proceeding AP-13-2978 addressed to ‘the Traffic Camera Office, (Michelle Corbet) [sic.]’, the applicant was entitled to maintain the entirety of that subpoena and have access to the manual held by that office of the second respondent in its entirety.
[22]Cai v County Court of Victoria [2015] VSC 267, at [46]–[52].
3. His Honour erred in giving the applicant access to part, but not the whole, of the second respondent’s Traffic Camera Operation Manual (‘the manual’) and acted unreasonably and failed to take into account relevant considerations, namely:
(a)The manual is a public document, and no rational or proper basis has been put forward for not disclosing it to the applicant in its entirety or for keeping portions of it confidential;
(b)The applicant, as a defendant to criminal proceedings, should be afforded the opportunity properly to test the case against him, and to mount his defence that the traffic cameras on which the prosecution relies were faulty at the time of the alleged offences, including by reference to the full version of the manual;
(c)The applicant ought be able to consider the manual in its entirety; and
4. Further, His Honour should have looked at the manual himself to ascertain its contents.
5. The decision to permit inspection of part only of the manual was manifestly unreasonable.
The notice describes the reasons for granting leave to appeal as follows:[23]
[23]Footnotes omitted.
1. If leave is not granted, the applicant will suffer a substantial injustice by:
(a) not having access to the entirety of the first respondents’ Road Traffic Camera Manual (‘the manual’), which is a public document which he should be permitted to see to establish his case in the County Court of Victoria that he was wrongly convicted of traffic offences due to a faulty, or malfunctioning, traffic camera; and
(b) not having the benefit of his previous successful appeal in relation to his subpoena in the County Court proceeding as determined by Ginnane J on 12 June 2015.
2. For the reasons given below, there is substantial doubt about the correctness of the decisions sought to be appealed.
On 7 April 2017, the Registrar referred Mr Cai’s applications to Beach JA pursuant to r 64.15(1) of the Supreme Court (General Civil Procedure) Rules 2015. That same day, under r 64.15(5)(c), Beach JA referred the applications for determination by the Court constituted by two or more judges. Acting pursuant to s 14D of the Supreme Court Act 1986, the Court as presently constituted has determined the application for leave to appeal without an oral hearing.
Even making allowance for the fact that Mr Cai is unrepresented, is not fluent in English and has in previous proceedings required the assistance of a Mandarin interpreter, the applicant’s written case[24] is a somewhat embarrassing document. In part it is scandalous.[25] Distilling, as best we are able, Mr Cai’s contentions, however, he seems to assert that:
[24]The document is described on its face as ‘Amended 5th version on 22/3/2017’.
[25]Improper allegations are made against John Dixon J and counsel for the second respondent.
· Ginnane J had quashed the first judge’s decision, so that Mr Cai was entitled to the whole manual;
· John Dixon J erred in construing the decision of Ginnane J as giving Mr Cai access to part only of the manual;
· as a defendant in criminal proceedings Mr Cai was entitled to the whole manual, so that denial of access to it breached ‘the ICCPR law’ and effected a ‘substantial injustice’;
· John Dixon J erred in law in failing to ‘stop’ counsel for the second respondent’s ‘block[ing] of material evidence’ in a criminal proceeding;
· Mr Cai should be able to defend his case from the whole manual in three suggested ways;
· Mr Cai’s subpoena was not ‘fishing’, and there was a legitimate forensic purpose in his seeking access to the whole manual;
· the Court of Appeal ‘can re-judge this point’ to see whether Mr Cai is entitled to the whole manual;
· the Court of Appeal can ‘re-judge’ certain factual allegations concerned with the road sensor and 2.2 second time lapse, and how these matters might affect a finding of guilt with respect to the charge against Mr Cai;
· John Dixon J erred in failing ‘to look at the manual himself to ascertain its contents’;
· the manual is a ‘public document’, and no ‘rational or proper basis has been put forward in not disclosing it to the applicant in its entirety or keeping portions of it confidential’;
· the order for costs made against Mr Cai ‘violated ICCPR law’, and ‘is clearly injustice’, the proceeding being criminal and the applicant being ‘self-representative’;
· Mr Cai is a ‘victim’ and should be compensated for ‘time loss and cost’ of defending himself;
· there is ‘no real, visible, testable material evidence against [Mr Cai] in red light/arrow charge in the court room’, and restricting access to the manual compromises Mr Cai’s defence and breaches ‘the ICCPR law’;
· the Supreme Court has a duty to provide ‘fair trial conditions for all red light/arrow charges in Victorian courts’; and
· certain conclusions should be drawn from the available evidence as to the merits of the charge against Mr Cai and his defence to it.
In large part, the proposed grounds of appeal and contentions in Mr Cai’s written case betray a fundamental misunderstanding of this Court’s supervisory role. It is not for this Court to re-adjudicate (or, as Mr Cai put it, ‘re-judge’) the case at first instance, since, according to accepted conceptions of the appellate process, ‘the existence of an error, whether of law or fact, on the part of the court at first instance is an indispensable condition of a successful appeal’.[26]
[26]Norbis v Norbis (1986) 161 CLR 513, 518–9.
That said, we have been unable to detect any error of law or fact in the reasons of John Dixon J set out above. Indeed, in our view his Honour’s decision is indubitably correct. His Honour was called upon to decide whether the second judge in the County Court had erred in his approach to the manual subpoena. He was unable to identify any error. Nor are we.
Grounds 1 and 2 of Mr Cai’s proposed grounds of appeal assert, in effect, that John Dixon J misconstrued the earlier decision of Ginnane J. In our view, that complaint is unsustainable. Rather, it is clear that Mr Cai continues to misconstrue what Ginnane J decided. The effect of the orders made by Ginnane J was not, as Mr Cai seems to think, to give him access to the whole manual. Instead, he gave relief in the nature of certiorari quashing that part of the order of 24 June 2014 that set aside the subpoena directed to the ‘Traffic Camera Office (Michelle Corbett)’, and he made an order in the nature of mandamus remitting that subpoena to be dealt with according to law and in accordance with his reasons. The essential question that John Dixon J had to decide was whether the second County Court judge had indeed dealt with the manual subpoena according to law. He found that the judge did.
Next, grounds 3, 4 and 5 seem to contend that John Dixon J erred in failing to give Mr Cai access to the relevant manual, Mr Cai thereby demonstrating a misunderstanding of his Honour’s function on an application for judicial review. In order to succeed, Mr Cai was required to establish error on the part of the second judge, either because the decision of the second judge was vitiated by reason of the matters to which he had regard (or failed to have regard), or because the decision was simply not open to him. John Dixon J was not exercising afresh any discretion relating to the manual subpoena. As we have said, John Dixon J held that Mr Cai had not substantiated any error of law on the part of the second judge, that judge’s approach to his task having been entirely proper. His Honour found that the second judge was satisfied after examining the full manual that — apart from the few sections identified — there was no further material within it that met the legitimate forensic purpose that Ginnane J had identified. Hence, as his Honour found, the judge had done all that he was required to do. In our view, he was undoubtedly correct to so find.
As to the various other arguments raised in Mr Cai’s written case, they are untenable. It is unnecessary to rehearse them, save to observe that there is no substance in the complaint that the costs order made against Mr Cai is unjust, or that he should be compensated for the costs of defending himself. In that regard, Mr Cai relies on the International Covenant on Civil and Political Rights (‘ICCPR’), but the ICCPR is not part of Victorian domestic law. But insofar as the articles of the ICCPR are reflected in the Charter of Human Rights and Responsibilities Act 2006 (‘the Charter’) — in particular, in ss 8, 24 and 25 — we are unable to see that the costs order made against Mr Cai is incompatible with any Charter provision.
Not only are we satisfied that the appeal has no real prospects of success, but we are affirmatively of the opinion that the application for leave to appeal is ‘totally without merit’.[27] Having considered the seriousness of the issues raised by the application and the consequences of our decision for Mr Cai, we are of the view that the application for leave is ‘bound to fail’.[28]
[27]Supreme Court Act 1986, s 14D(3).
[28]R (Grace) v Home Secretary [2014] 1 WLR 3432, 3436 [13] and [15].
Conclusion
We would make the following orders:
1. The application for an extension of time to apply for leave to appeal against the orders of 29 July 2016 is granted.
2. The application for leave to appeal against the orders made 29 July 2016 is refused.
3. The application for stay of the order for costs made 29 July 2016 is refused.
With respect to the costs of the applications in this Court, should they wish to address that issue, the parties are ordered to file written submissions within 14 days of the date hereof.
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