Kassionis v. Magistrates' Court of Victoria

[2002] VSCA 73

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 7731 of 2001

NICK KASSIONIS	Appellant
v.

Respondents THE MAGISTRATES' COURT OF VICTORIA

and SNR. CONSTABLE ADAM HANLEY

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APPLICATION ON SUMMONS

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JUDGES:	BATT and EAMES, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	17 May 2002
DATE OF JUDGMENT:	17 May 2002
MEDIUM NEUTRAL CITATION::	[2002] VSCA 73

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APPEAL - Whether leave required - Whether order interlocutory - Order dismissing proceeding for judicial review of magistrate's procedural orders made on mention of charges to be tried summarily.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	In person
For the 2nd Respondent	Mr B. Kayser	K. Robertson, Solicitor for Public Prosecutions
BATT, J.A.:

1. This is an application by summons filed 28 March 2002 for an order that the order made by Pagone, J. on 20 March 2002 be stayed until the hearing and determination of the appellant's appeal said to have been instituted on 28 March 2002.

2. On 20 March 2002 Pagone, J. dismissed the originating motion of the appellant (as I shall call him) by which he had sought orders in the nature of certiorari and prohibition in relation to orders and rulings made by a magistrate on 7 August 2001 on a contested mention in the summary jurisdiction of the Magistrates' Court of Victoria at Sunshine. The appellant was charged with burglary and possession of an article for use in the course of or in connection with burglary, both of which offences were alleged to have occurred as long ago as 23 July 2000, and also with failure to answer bail. The magistrate did not determine the question of guilt or innocence of those charges but simply made directions relating to the further hearing of them.

3. As I have indicated, the appellant has purported to appeal as of right. However, it is clear, in my view, that the order of Pagone, J. is interlocutory and that accordingly the appellant needs leave under s.17A(4)(b) of the Supreme Court Act 1986. This is because the order below does not, in the words of Windeyer, J. in Hall v. Nominal Defendant[1], "finally determine the rights of the parties in a principal cause pending between them", the principal cause pending between the parties here being the charges, still undetermined, in the Magistrates' Court. The decision of the Full Court in Farrow v. La Franchi[2] precisely covers the present case. That the order of Pagone, J. was interlocutory is shown more generally by Hornsby v. Kaschke[3] and Monash University v. Berg[4], which latter case I take still to be good law in this State notwithstanding that the High Court dismissed an application for special leave in Farrow without determining the correctness of Monash University v. Berg. The doubt expressed by the President in Brygel v. O'Keefe[5] might seem to be against the view which I have expressed, but the certiorari there sought was to quash an administrative decision on the grounds of want of natural justice, so that there was no other proceeding pending, on one view. In any event, after expressing his doubt, the President said that he was "prepared to assume" that no leave to appeal was required and went on to dismiss the appeal on the merits. It may therefore be said that the expression of view was obiter. Accordingly, in my view, that case does not stand for the proposition that where certiorari to quash an interim decision of a lower court or tribunal is refused the refusal is final.

   [1] (1966) 117 C.L.R. 423 at 443.

   [2]              Unreported, Appeal Division, 7 March 1995 at p.2 Special leave to appeal refused, 9 June 1995.

   [3] [1999] 3 V.R. 27.

   [4] [1984] V.R. 383.

   [5]              Unreported, Court of Appeal, 17 April 1997 at p.7.

4. In the light of the view which the court expressed provisionally early in the sitting this morning and has not been dissuaded from by argument by the appellant, the appellant elected to apply orally for leave to appeal today rather than having his application for a stay treated as one for a stay pending the hearing and determination of a formal application for leave which he would make later. No objection was taken for the second respondent (the only other party appearing) to the application for leave being heard instanter or to its being made out of time or being made orally.

5. In the circumstances in which the need for it occurred, I would extend the time for applying if I thought that leave should be given to appeal, but I do not think that leave should be granted. I do not consider that Pagone, J.'s order is attended with sufficient doubt to warrant the grant of leave to appeal. Indeed I would go so far as to say that I consider it correct and would adopt it. Eames, J.A., during the hearing this afternoon, took the appellant through the points his Honour decided below and through the grounds of appeal and ascertained the appellant's contentions as to why there was error on the part of his Honour in relation to each of those matters, and such other matter, if any, as was complained of in the originating motion and argued before his Honour but was not the subject of his Honour's reasons. Having listened to the appellant, I could not discern any reasonable case for error in respect of any of the points taken by him.

6. The additional test usually required to be satisfied to obtain a grant of leave to appeal is that substantial injustice will be caused to the applicant for leave if the order below stands. Looking at the matters complained of and at the material in possession of which the appellant has been placed as a result of various interlocutory steps in the Magistrates' Court and at least one step before his Honour, I am not persuaded that any substantial injustice would be suffered if the order of his Honour remains standing.

7. I would therefore refuse leave to appeal. There is accordingly no point in extending time. It follows that the application for a stay must be refused and the appeal itself must be dismissed as incompetent.

8. I would add that, whatever the reasons for the delay to date or the time taken to date, it is high time that these charges were heard and determined.

EAMES, J.A.

1. I agree with the reasons of the learned presiding judge and with the orders his Honour proposes, and only add this. Questions of pre-hearing discovery cannot be addressed in isolation from the circumstances of the offences which are alleged against an accused person. In this case the allegations made against the defendant/applicant in the two principal charges he faces are in very narrow compass. That factor is one additional circumstance which persuades me that refusal of leave would not cause any substantial injustice.

   (Discussion ensued as to costs.)

BATT, J.A.:

1. The Court is of the view that the second respondent's costs should be paid by

Kassionis v. The Magistrates’ Court of Victoria 3 J.A. EAMES, BATT, J.A.

the applicant, or appellant as I have been calling him. The appellant has invoked Order 56 of Chapter I of the Rules on a matter which failed completely before the primary judge, and this Court has taken the view that leave has not been shown to be appropriate. Costs this case, we think, should be payable, although it originates out of criminal charges, and they should follow the event.

The order of the Court is therefore:

1.          The application for leave to appeal made orally this day is refused with costs.

2.          The application for a stay made by summons filed 28 March 2002 is refused.

3.          The appeal by notice of appeal filed 28 March 2002 is dismissed as incompetent.

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