Kotzmann v Magistrates' Court of Victoria
[2014] VSC 83
•13 March 2014
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
PRACTICE COURT
S CI 2013 6128
| THOMAS SAMUEL KOTZMANN | Plaintiff |
| v | |
| THE MAGISTRATES’ COURT OF VICTORIA AT MELBOURNE & ANOR | Defendants |
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JUDGE: | KYROU J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 5 March 2014 | |
DATE OF JUDGMENT: | 13 March 2014 | |
CASE MAY BE CITED AS: | Kotzmann v Magistrates’ Court of Victoria | |
MEDIUM NEUTRAL CITATION: | [2014] VSC 83 | |
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ADMINISTRATIVE LAW — Application for judicial review — Order 56 Supreme Court (General Civil Procedure) Rules 2005 — Application for summary judgment under s 62 of the Civil Procedure Act 2010 — Committal proceeding — Interlocutory hearing of application for an order that a witness give evidence by audio visual link — Whether refusal of adjournment and the making of such an order are reviewable decisions — Potter v Tural (2000) 2 VR 612, Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 and Craig v South Australia (1995) 184 CLR 163 applied — Whether jurisdictional error or error of law on the face of the record established — Whether discretionary considerations warrant refusal of relief — Application for summary judgment granted.
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| APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | The Plaintiff appeared in person | |
| For the First Defendant For the Second Defendant | No appearance for the First Defendant Mr A Castle, Solicitor | Office of Public Prosecutions Victoria |
HIS HONOUR:
Introduction and summary
The plaintiff has been charged with serious offences, including robbery, blackmail and intentionally causing serious injury, and is currently on remand. His committal hearing, which commenced on 9 December 2013, is due to resume on 17 March 2014.
On 8 November 2013, a ‘mention hearing’ took place before the first defendant, a magistrate, in relation to an application by the second defendant, the informant. That magistrate is not conducting the committal hearing. The informant sought a direction under s 42E of the Evidence (Miscellaneous Provisions) Act 1958 (‘1958 Act’) that a witness in the committal hearing, Ms Sharon Ropa, give evidence by audio visual link. Ms Ropa is a co-accused in relation to some of the charges against the plaintiff and is in custody at the Dame Phyllis Frost Centre.
At the commencement of the mention hearing, the plaintiff sought an adjournment, which the magistrate refused (‘Adjournment Decision’). After hearing from the informant and the plaintiff, the magistrate made the following order (‘Audio Visual Link Order’):
Leave is granted to the witness, Sharon Ropa to give evidence at the committal hearing by way of remote facility.
I will refer to the Adjournment Decision and the Audio Visual Link Order collectively as the ‘Impugned Decisions’.
The Audio Visual Link Order is confined to the committal hearing and does not apply to any criminal trial that may ensue.
The plaintiff has been granted leave to cross-examine Ms Ropa when she gives evidence by audio visual link at the committal hearing.
On 21 November 2013 the plaintiff filed an originating motion pursuant to O 56 of the Supreme Court (General Civil Procedure) Rules 2005 seeking judicial review of ‘the purported decisions of the [magistrate] made on 8 November 2013.’ The plaintiff seeks orders setting aside the Impugned Decisions and orders requiring the magistrate to decide the issues afresh. The grounds upon which the plaintiff relies may be summarised as follows:[1]
[1]The plaintiff filed a summons seeking to expand the grounds — including to raise breaches of the Charter of Human Rights and Responsibilities Act 2006 (‘Charter’) — but he withdrew the summons.
(a) The magistrate breached the hearing rule of natural justice by failing to provide him, in his capacity as a self-represented litigant in a criminal proceeding, with the assistance required by the principles discussed in Tomasevic v Travaglini.[2]
[2](2007) 17 VR 100 (‘Tomasevic’).
(b) The magistrate did not properly exercise his discretion and did not apply the correct test in making the Adjournment Decision.[3]
(c) The magistrate lacked jurisdiction to make the Audio Visual Link Order because he wrongly refused to adjourn the mention hearing.
(d) The magistrate made errors of law on the face of the record. In addition to those set out at (a) to (c) above, the alleged errors include: that the magistrate acquiesced in the Executive’s failure to comply with a gaol order requiring that he be brought to court; that the magistrate applied the wrong test in refusing the plaintiff’s request for an adjournment and in making the Audio Visual Link Order; that the magistrate failed to be satisfied that the technical requirements set out in s 42G of the 1958 Act were met; and that, contrary to the requirements of s 42U of the 1958 Act, he would not be able to properly put documents to Ms Ropa at the committal hearing.
[3]The grounds of review also allege an error in a decision said to have been made by the magistrate to refuse to recuse himself. However, the plaintiff conceded that there is no evidence in the transcript of the mention hearing that he made any application that the magistrate recuse himself.
On 16 January 2014, on the basis of Potter v Tural,[4] the informant applied for summary dismissal of the proceeding on the ground that ‘a committal proceeding is not subject to review in the nature of certiorari’. At the hearing of the application, the informant clarified that the order was sought pursuant to s 62 of the Civil Procedure Act 2010.
[4](2000) 2 VR 612 (‘Potter’).
For the reasons that follow, I have concluded that the proceeding has no real prospect of success and that there should be summary judgment for the defendants.
Relevant statutory provisions
Sections 42E, 42G(1) and 42U of the 1958 Act provide as follows:
42E Appearance, etc. by audio visual link or audio link
(1)Subject to … any rules of court, a court may, on its own initiative or on the application of a party to the legal proceeding, direct that a person may appear before, or give evidence or make a submission to, the court by audio visual link or audio link from any place within or outside Victoria, or outside Australia, that is outside the courtroom or other place where the court is sitting.
(2)A court must not make a direction under subsection (1) unless it is satisfied that the technical requirements specified in section 42G are met, or can reasonably be met, in the case of the particular link.
(3)The court may, at any time in the course of a proceeding, vary or revoke a direction under subsection (1) either on its own initiative or on the application of a party to the proceeding.
(4)Without limiting subsection (3), circumstances in which a court may vary or revoke a direction under subsection (1) include the failure of the link to which the direction relates.
(5)Each party to a proceeding may address the court in respect of the making, variation or revocation of a direction under subsection (1).
42G Technical requirements
(1)The technical requirements for an audio visual link are as follows:
(a)both the court point and the remote point are equipped with facilities that—
(i)enable all appropriate persons at the court point to see and hear the person appearing before the court or giving the evidence or making the submission; and
(ii)enable all appropriate persons at the remote point to see and hear appropriate persons at the court point; and
(b)any requirements prescribed by rules of court for or with respect to—
(i) the form of audio visual link;
(ii)the equipment, or class of equipment, used to establish the link;
(iii) the layout of cameras;
(iv) the standard, or speed, of transmission;
(v) the quality of communication;
(vi) any other matter relating to the link;
(c)any requirements imposed by the presiding judge or magistrate.
42U Putting documents to a remote person
(1)If in the course of the examination of a person by audio visual link or audio link it is necessary to put a document to him or her, the presiding judge or magistrate may permit the document to be put to the person—
(a)if the document is at the court point, by transmitting a copy of it to the remote point by any means and the copy so transmitted being then put to the person; or
(b)if the document is at the remote point, by putting it to the person and then transmitting a copy of it to the court point by any means.
(2)A document put to a person in accordance with subsection (1) is admissible in evidence without proof that the transmitted copy is a true copy of the relevant document.
(3)Nothing in this section prevents a document or exhibit being shown to a person over the audio visual link itself.
Sections 62 to 65 of the Civil Procedure Act provide as follows:
62 Defendant may apply for summary judgment in proceeding
A defendant in a civil proceeding may apply to the court for summary judgment in the proceeding on the ground that a plaintiff's claim or part of that claim has no real prospect of success.
63 Summary judgment if no real prospect of success
(1)Subject to section 64, a court may give summary judgment in any civil proceeding if satisfied that a claim, a defence or a counterclaim or part of the claim, defence or counterclaim, as the case requires, has no real prospect of success.
(2)A court may give summary judgment in any civil proceeding under subsection (1)—
(a) on the application of a plaintiff in a civil proceeding;
(b) on the application of a defendant in a civil proceeding;
(c)on the court's own motion, if satisfied that it is desirable to summarily dispose of the civil proceeding.
64 Court may allow a matter to proceed to trial
Despite anything to the contrary in this Part or any rules of court, a court may order that a civil proceeding proceed to trial if the court is satisfied that, despite there being no real prospect of success the civil proceeding should not be disposed of summarily because—
(a) it is not in the interests of justice to do so; or
(b)the dispute is of such a nature that only a full hearing on the merits is appropriate.
65 Interaction with rules of court
The powers of a court under this Part are in addition to, and do not derogate from, any powers a court has under rules of court in relation to summary disposal of any civil proceeding.
Relevant facts
The plaintiff appeared at the mention hearing by audio visual link because staff of Corrections Victoria did not comply with a gaol order to transport him to the Court.
At the commencement of the mention hearing, the following exchange took place between the magistrate and the plaintiff:
[Magistrate] Mr Kotzmann, as you’re aware, the … prosecution are seeking that Ms Ropa give evidence at the committal by way of video-link. What’s your response to that application?
[Plaintiff]Well, first and foremost Your Honour, I’ve got an application for this special mention and this application be adjourned. The basis of that is when I was made aware of this matter I wrote to the registrar and committals coordinator, Mr Barnes, and put my objection to appearing at this hearing via video-link on the record. I feel severely prejudiced appearing self-represented by video link. I feel as though I cannot actively participate in the proceedings as is my right. I just feel like the hearing is going to be unfair because of the prejudice of … having to appear [by] video link. So my application initially is to adjourn this special mention to a date next week where a gaol order can be issued and I can be present in court.
[Magistrate] All right. Well, let me deal with that application first. Obviously my understanding is that you were meant to be here today and a gaol order was done for you to be here today but, as you’re probably aware, there is somewhat of a crisis in the corrections system at the moment whereby people aren’t being brought to court when they’re meant to be. But, in relation to you being prejudiced by not being here and that you can’t actively participate I don’t actually understand the basis for that aspect of your application.
After the plaintiff explained why he felt that he was disadvantaged by appearing by audio visual link, the magistrate said the following:
I understand the points that you’re making in relation to that. No doubt if this was a committal hearing today or if this was a contested hearing or a trial by you today obviously there would be issues if you weren’t here in person. But, what we’re dealing with today is an application by the prosecution … to seek leave of the court for Ms Ropa to give evidence by way of video-link. I’ll listen to your submissions on that point and notwithstanding your issues about not being present in court you’re still going to get a fair hearing by me in relation to your opposition to the application if that’s what you’re actually doing, if you are opposing it.
After hearing the parties’ submissions on the informant’s application, the magistrate made the following ruling:
Mr Kotzmann’s committal hearing is scheduled to take place on 9 December this year over a period of five days. There are as many as 13 witnesses who have been requested to be available for cross-examination including Ms Ropa, his co-accused on a number of charges, who has made a statement implicating him in the offending.
The prosecution have made application for her to give video evidence via video-link from the Dame Phyllis Frost Centre where she is incarcerated due to a sentence of imprisonment in relation to her role in the Barbaro drug trafficking matter. The decision whether to grant or refuse the application by the prosecution in this matter is discretionary. For all intents and purposes the role is a [balancing] act between the alleged effect of giving evidence in person by her and the rights of Mr Kotzmann.
Mr Kotzmann initially made [an] application for the matter to be adjourned on the basis that he was [not] brought into the court in accordance with the gaol order due to the current corrections issues. I do not accept his submission that his absence (indistinct) on his ability to express his reasons for opposing the substantive application and therefore I refused the application to adjourn this matter.
In relation to the substantive application made by the prosecution I accept there is substance to the assertion that Ms Rosie Ropa would be fearful and intimidated by giving evidence in person in the presence of Mr Kotzmann having regard to their past association and relationship and allegations made by her against him. I also accept that Mr Kotzmann would experience forensic disadvantage by not being able to cross-examine Ms Ropa in person or through counsel concerning the circumstances of the alleged offending and on credit issues if she were giving evidence by a remote facility.
However, noting that this matter is a committal hearing and not a trial and she is only one, albeit an important one, of 13 witnesses to be cross-examined the interest[s] of justice do favour the application be granted and I will do so.
Parties’ submissions
The informant placed principal reliance on Potter. She submitted that in accordance with the principles in that case, this proceeding is incompetent and should be dismissed.
The informant also relied on the principle in Australian Broadcasting Tribunal v Bond[5] that judicial review remedies are generally not available in respect of procedural interlocutory decisions which do not finally determine the rights of the parties. The informant submitted that the Audio Visual Link Order is not final because it can be revoked, including by the magistrate who conducts the committal hearing.
[5](1990) 170 CLR 321 (‘Bond’).
For the same reasons as those set out at [17] above, the informant submitted, on the basis of the principles set out in Craig v South Australia,[6] that any errors that the magistrate may have made in relation to the Impugned Decisions were errors within jurisdiction rather than jurisdictional errors. Accordingly, so it was said, any such errors would not support prerogative relief.
[6](1995) 184 CLR 163 (‘Craig’).
The plaintiff sought to distinguish Potter on the basis that the legislative framework has changed since that decision was published. The plaintiff relied on the enactment of the Criminal Procedure Act 2009 and the Charter of Human Rights and Responsibilities Act 2006.
The plaintiff submitted that the Audio Visual Link Order is final because, until it is revoked, it will determine how Ms Ropa gives evidence. He informed the Court that he has filed an application for a revocation of the Audio Visual Link Order, which will be heard by the magistrate conducting the committal hearing.
The plaintiff contended that the magistrate did not act in accordance with the principles dealing with the assistance that a trial judge should provide to a self-represented litigant in a criminal proceeding, that were discussed in Tomasevic.[7] The plaintiff emphasised that, as a self-represented litigant, he was denied procedural fairness by not being able to be present in person at the mention hearing so that he could properly follow the submissions of the informant and have access to the documents upon which the informant relied. In particular, he stressed that he had not been given a copy of the relevant provisions of the 1958 Act to enable him to oppose the informant’s application on an informed basis.
[7](2007) 17 VR 100.
The plaintiff also submitted that he was denied procedural fairness because the audio visual link between the courtroom and the room in which he was located was faulty. According to the plaintiff, the link sometimes ceased altogether temporarily or the acoustics were such that he could not hear what was being said in the courtroom. The plaintiff also stated that he wanted to play a recording to the Court but was unable to do so.
Decision
In my opinion, the principles in Potter and Bond have the effect that the Impugned Decisions are not subject to an order in the nature of certiorari. Further, the plaintiff has not demonstrated that the magistrate made either a jurisdictional error or an error of law on the face of the record. Accordingly, the proceeding has no real prospects of success and should be disposed of summarily. Even if judicial review remedies had been available in respect of the Impugned Decisions, as a matter of discretion, no relief should be granted to the plaintiff because he has availed himself of the statutory right to apply to revoke the Audio Visual Link Order. My reasons for these conclusions are set out below.
Principles in Potter
Potter concerned two separate applications to review decisions by two magistrates to refuse leave to two accuseds to cross-examine certain witnesses at their committal hearings. The Court of Appeal decided that, as a magistrate’s decision whether to commit an accused for trial is not amenable to review by an order in the nature of certiorari, a preliminary decision or ruling on the way to making that decision likewise is not amenable to such review because ‘the greater comprehends the lesser.’[8]
[8]Potter (2000) 2 VR 612, 614 [3], 617–18 [20].
The Court held that the unavailability of certiorari in respect of a decision whether to commit an accused for trial had been confirmed by a long line of authority in Victoria. Those authorities relied on the fact that such a decision does not finally determine the rights of the accused but only ‘determines … the sufficiency, in the magistrate’s opinion, of the evidence to put the [accused] upon trial for an indictable offence.’[9] The Court noted that even if a magistrate decided not to commit an accused to trial, the Director of Public Prosecutions could proceed with a direct indictment.[10]
[9]Potter (2000) 2 VR 612, 614 [3], 617–18 [20].
[10]Potter (2000) 2 VR 612, 619–20 [22].
The Court rejected an argument from the two accuseds that the impugned decisions were amenable to certiorari because they finally determined the right to seek leave to cross-examine. The Court held that, while the refusal of an application for leave to cross-examine has effect in that there is no cross-examination, ‘no substantive right is affected’ and that ‘[a]t most a procedural privilege or power is not granted.’[11]
[11]Potter (2000) 2 VR 612, 619 [21].
In my opinion, the principles in Potter are directly applicable to the present case. The Impugned Decisions are merely preliminary decisions or rulings in the committal proceeding and no substantive right is affected. This is particularly so for two reasons. First, if a refusal of leave to cross-examine is not a reviewable decision then neither is a decision to permit cross-examination using an audio visual link rather than directly in the courtroom. Secondly, the Audio Visual Link Order is capable of being revoked at any time.
Further, the Impugned Decisions are not amenable to an order in the nature of mandamus. This is because they do not amount to an actual or constructive refusal to exercise the jurisdiction reposed in the magistrate.[12]
Principles in Bond
[12]Potter (2000) 2 VR 612, 621–2 [26].
In Bond, the High Court stated that an essential quality of a reviewable decision is that it be a substantive rather than a procedural determination and that generally it will not be reviewable unless it is final or operative and determinative in a practical sense of the issues falling for consideration.[13]
[13]Bond (1990) 170 CLR 321, 337. See also Potter (2000) 2 VR 612, 619–20 [21]–[22].
In my opinion, neither of the Impugned Decisions satisfies the above requirements. The Adjournment Decision is purely procedural.[14] The Audio Visual Link Order cannot be a final decision because s 42E(3) of the 1958 Act expressly provides that it can be revoked at any time. Moreover, as I have stated at [20] above, the plaintiff has applied to revoke the Audio Visual Link Order.
[14]Bond (1990) 170 CLR 321, 337.
Whether the alleged errors are jurisdictional errors
The errors that the plaintiff has alleged that the magistrate made, other than the alleged breach of the hearing rule of natural justice and the alleged failure by the magistrate to be satisfied of the technical requirements in s 42G of the 1958 Act, are not jurisdictional.
In Craig, the High Court stated:
Where the writ [of certiorari] 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 of procedural fairness, fraud and ‘error of law on the face of the record’ …
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 …
[J]urisdictional error will occur where an inferior court disregards or takes account of some matter in circumstances where the statute or other instrument establishing it and conferring its jurisdiction requires that that particular matter be taken into account or ignored as a pre-condition of the existence of any authority to make an order or decision in the circumstances of the particular case. Again, an inferior court will exceed its authority and fall into jurisdictional error if it misconstrues that statute or other instrument and thereby misconceives the nature of the function which it is performing or the extent of its powers in the circumstances of the particular case. In the last-mentioned category of case, the line between jurisdictional error and mere error in the exercise of jurisdiction may be particularly difficult to discern …
[T]he 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 had 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.[15]
[15]Craig (1995) 184 CLR 163, 175–80 (citations omitted).
In the present case, the magistrate had jurisdiction to decide whether to grant the plaintiff’s request for an adjournment and the informant’s application for an order under s 42E(1) of the 1958 Act. Further, the transcript of the mention hearing demonstrates that the magistrate did not misunderstand either the applicable legislation or the relevant legal principles. Accordingly if the magistrate erred in the exercise of his discretion, any such errors cannot be characterised as jurisdictional errors.
A breach of the hearing rule of natural justice can be a sufficient basis for the grant of prerogative relief. In the present case, however, the magistrate did not breach that rule.
I have some sympathy for the plaintiff’s complaint that he was labouring under a disadvantage in having to oppose an application remotely by audio visual link. He was not able to attend the Magistrates’ Court in person because the Executive was not able to provide the facilities to transport him to Court, notwithstanding that there was a binding judicial order requiring that he be brought before the Court. Non-compliance with a judicial order is clearly unacceptable. The difficulties that a self-represented litigant in a criminal proceeding ordinarily experiences should not be exacerbated by forcing him or her to participate at a hearing remotely when a judicial officer has determined that it is necessary for the litigant to appear in court in person.
I am also of the view that the magistrate should have enquired of the plaintiff whether he had been provided with a copy of the provisions of the 1958 Act upon which the informant relied in making her application and, if a copy of those provisions had not been provided, the magistrate should have arranged for a copy to be provided. This is because those provisions established the legal framework for the informant’s application. If it had not been possible to provide the plaintiff with a copy of the relevant provisions, the magistrate should have taken steps to read them to him.
In the circumstances of this case, although it appears that the plaintiff had not been provided with a copy of the relevant provisions of the 1958 Act, that does not mean that he was deprived of a fair hearing. This is because the transcript of the mention hearing indicates that the plaintiff was well aware of the nature and effect of the informant’s application and the factors that the magistrate would take into account in determining that application. He was given ample opportunity to deal with those matters and he availed himself of that opportunity by making detailed submissions.
Overall, whilst the circumstances prevailing at the mention hearing were not ideal from the plaintiff’s point of view, the magistrate took sufficient steps to assist the plaintiff in responding to the informant’s application and to ensure that the mention hearing was fair. Accordingly, there was no breach of the hearing rule of natural justice.
As the mention hearing was fair, the plaintiff did not suffer any real injustice from the refusal of his application for an adjournment.
In relation to the technical requirements set out in s 42G of the 1958 Act, it is true that neither the parties nor the magistrate referred to them. However, the technical requirements are such that the parties will often not be in a position to make any meaningful submissions in relation to them. It would have been preferable for the magistrate to have expressly stated in his ruling that he was satisfied that the requirements were met. However, the fact that he did not do so does not mean that he failed to be so satisfied. The magistrate knew that Ms Ropa was in custody at the Dame Phyllis Frost Centre. It can be inferred that the magistrate had sufficient knowledge of the audio visual link facilities that operated between that Centre and the Magistrates’ Court at Melbourne to enable him to be satisfied that the technical requirements were met. The context in which the Audio Visual Link Order was made — as disclosed by the transcript of the mention hearing — indicates that the magistrate would not have made that order if he had not been satisfied that the technical requirements were met.
There is no substance to the plaintiff’s allegations that the magistrate applied the wrong test in making the Adjournment Decision or that he lacked jurisdiction to make the Audio Visual Link Order.
Alleged errors of law on the face of the record
In accordance with s 10 of the Administrative Law Act 1978 the record of the mention hearing includes not only the Audio Visual Link Order but also the magistrate’s reasons for making that order. The transcript of the mention hearing can be considered insofar as it sets out reasons for the Impugned Decisions.
I have already discussed, and rejected, the alleged errors set out at [34] to [41] above.
There is no merit to the plaintiff’s allegation that the magistrate acquiesced in the Executive’s failure to comply with the gaol order. The transcript of the mention hearing does not support that allegation.
The allegations that the magistrate applied the wrong test in refusing the plaintiff’s request for an adjournment and in making the Audio Visual Link Order under s 42E of the 1958 Act are also without merit. In making the Audio Visual Link Order, the magistrate should have used the language of s 42E. He should have given a direction rather than granting leave and he should have stated that Ms Ropa is to give evidence by audio visual link from the Dame Phyllis Frost Centre rather than that she is to give evidence ‘by way of remote facility’. However, the context — as disclosed by the transcript of the mention hearing — shows that that is what the Audio Visual Link Order requires.
Section 42U of the 1958 Act states how documents are to be put to a witness giving evidence by audio visual link. The requirements of that section were discussed during the mention hearing and the fact that the magistrate made the Audio Visual Link Order indicates that he did not accept that those requirements would pose a difficulty. If a difficulty arises, the magistrate conducting the committal hearing can deal with it on its merits at the relevant time.
Discretionary considerations
As appears from [11] above, s 64 of the Civil Procedure Act provides that, notwithstanding that the court is satisfied that a proceeding has no real prospect of success, it may order that there be a trial if it is satisfied that it is not in the interests of justice for the proceeding to be disposed of summarily or that the dispute is of such a nature that only a full hearing on the merits is appropriate.
Although the plaintiff’s attention was not expressly directed to s 64 of the Civil Procedure Act, he made extensive submissions as to why it was in the interests of justice for this proceeding to proceed to a full hearing rather than being disposed of summarily. In addition to the grounds that I have already discussed, the plaintiff relied on the fair hearing provisions of ss 24 and 25 of the Charter, the absence of ‘equality of arms’ when an accused in a criminal proceeding is self-represented and the difficulties he was experiencing in preparing his defence to the criminal charges while he is in custody.
I am not persuaded either that it is not in the interests of justice to summarily dispose of the proceeding or that the dispute is of such a nature that only a full hearing on the merits is appropriate. This proceeding involves procedural orders made by the magistrate in the exercise of his discretion. The plaintiff has a statutory right to apply to revoke the Audio Visual Link Order and he has invoked that right. That application will be heard and determined on its merits.
For completeness, I note that, for the following reasons, even if I had concluded that the Impugned Decisions were vitiated by a reviewable error, I would have refused to grant any relief to the plaintiff.
First, any such error would be capable of being cured by an application of the type that the plaintiff has already made to revoke the Audio Visual Link Order.
Secondly, there is a public interest in avoiding fragmentation of committal proceedings.[16]
[16]Potter (2000) 2 VR 612, 633–4 [51]–[52].
Thirdly, granting the informant’s application for summary judgment is consistent with the overarching purpose in s 7 of the Civil Procedure Act, namely facilitating the just, efficient, timely and cost-effective resolution of the real issues in dispute. It would be futile and wasteful to allow the proceeding to go to a final hearing when the plaintiff has already availed himself of a superior statutory remedy and where the application for review has no real prospects of success.
Proposed order
For the above reasons, I will make an order that there be judgment for the defendants under s 63(1) of the Civil Procedure Act.
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