Lazarevic v Victoria Police
[2014] VSC 497
•3 October 2014
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S CI 2014 02388
| STEVEN LAZAREVIC | Plaintiff |
| v | |
| VICTORIA POLICE | Defendant |
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JUDGE: | DERHAM AsJ |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 29 September 2014 |
DATE OF JUDGMENT: | 3 October 2014 |
CASE MAY BE CITED AS: | Lazarevic v Victoria Police |
MEDIUM NEUTRAL CITATION | [2014] VSC 497 |
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PRACTICE AND PROCEDURE – Judicial Review – Order 56 of the Supreme Court (General Civil Procedure) Rules2005 – Extension of time within which to commence proceeding – Special circumstances required – No special circumstances disclosed – No arguable case for judicial review – Application dismissed.
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APPEARANCES: | Counsel | Solicitors |
| The Plaintiff in person | ||
| For the Defendant | Mr Adrian Castle, Principal Solicitor, Office of Public Prosecutions |
HIS HONOUR:
Introduction
By Originating Motion filed on 16 May 2014, the plaintiff applies for relief in the nature of certiorari and prohibition quashing his conviction by a Judge of the County Court made on 11 November 2013. The application is made pursuant to Order 56 of the Supreme Court (General Civil Procedure) Rules 2005 (‘Rules’).
The plaintiff filed a Summons on 13 June 2014, as required by the Rules. That Summons merely repeated the relief sought in the Originating Motion. No formal application to extend the time was included.
By r 56.02 (1) of the Rules a proceeding under Order 56 must be commenced within 60 days after the date when the grounds for the grant of the relief or remedy claimed first arose.
By r 56.02(2) of the Rules it is provided that 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.
The Court has power under r 3.02(1) of the Rules to extend (or abridge) any time fixed by the Rules. By r 56.02(3) the Court must not extend the 60 day period fixed by paragraph (1) except in ‘special circumstances’.
Although the plaintiff’s Summons did not formally seek to extend the time, his affidavits made it plain that he sought to do so. On the first return of his Summons on 28 July 2014 the plaintiff was ordered to file any further affidavits in support of his application to extend time by 8 September 2014, as I relate in more detail below.
For the reasons set forth below I have reached the firm conclusion that the time for the plaintiff to commence the proceeding should not be extended and that, accordingly, the proceeding should be dismissed.
Background
The plaintiff was charged with driving a motor vehicle on a highway, namely Highett Street, Richmond, while the authorisation granted to him to do so was suspended (that is his driver’s licence was suspended) and with being the driver of a vehicle that was moving on a road, namely Coppin Street, Richmond who did use a mobile phone whilst not being exempt.[1]
[1]Affidavit of Adrian Mark Castle sworn 26 September 2014, exhibit OPP-1 (the ‘Castle affidavit’).
On 12 July 2013, the Magistrates’ Court at Melbourne convicted the plaintiff of the offences and the plaintiff was ordered to pay fines totalling $650.[2]
[2]The Castle affidavit exhibit OPP-2.
On 7 August 2013, the plaintiff filed a Notice of Appeal to the County Court against the convictions.[3] That appeal was under s 254 of the Criminal Procedure Act2009.[4] On 11 November 2013, the County Court at Melbourne constituted by his Honour Judge Bourke heard the appeal and found the charges proven and recorded convictions against the plaintiff (as had been by the Magistrates’ Court), ordering the plaintiff to pay fines totalling $650.[5]
[3]The appeal was allocated the number AP-13-1877.
[4]The appeal is an appeal by way of rehearing: s 256(1) Criminal Procedure Act 2009. On the hearing of the appeal the County Court must set aside the sentence of the Magistrates’ Court and may impose any sentence the Magistrates’ Court could have imposed and may exercise any power the Magistrates’ Court could have exercised: s 256(2) Criminal Procedure Act 2009.
[5]The Castle affidavit OPP-4.
The plaintiff appeared in person before the County Court along with his brother-in-law who addressed the Court as a ‘McKenzie Friend’. The Informant, Senior Constable Andrew Tanner, gave evidence which accorded with his statement in the Brief of Evidence for the charges and a s 84(1) certificate[6] was tendered and marked as Exhibit A at the hearing of the appeal.[7]
[6]Road Safety Act 1986, certificate under s 84(1), Castle affidavit OPP-7.
[7]The Castle affidavit paragraph [14]. The DVD of the hearing indicates that there were two s 84 certificates tendered, but nothing turns on this.
The Originating Motion
In his Originating Motion the plaintiff identified that he sought judicial review pursuant to Order 56 of the Rules in respect of the order made by the County Court Judge on 11 November 2013, in particular that the order be set aside and that the defendant (named in the Originating Motion as the Victoria Police) be directed to show what authority it has to prosecute the plaintiff for the relevant offences. The grounds stated in the Originating Motion were twofold –
(a) That the plaintiff was not afforded natural justice at the County Court hearing; and
(b) The defendant did not provide details of any authority it has to prosecute the plaintiff of the offences of which he has been charged and convicted.
In a handwritten addition to the Originating Motion the plaintiff stated ‘the Honour Judge MP Bourke was practicing law form [sic] the bench by guiding the police to answer question I put forward to him (the police member)’.
The defendant named in the Originating Motion is the Victoria Police, although the Informant is named as a defendant, without having been added as a defendant, in some subsequent documents filed. The County Court of Victoria is not named, as is required by r 56.01(2)(b) of the Rules. The defendant did not object to these infelicities and having regard to the decision I have reached nothing turns on them.
Affidavits in Support
In his first affidavit in support,[8] the plaintiff referred to the hearing of the appeal in the County Court and stated that:
[8]Affidavit of Steven Lazarevic sworn 16 May 2014.
(a) He was not afforded natural justice when the appeal was heard as the matter was not heard before a jury of his peers;
(b) The judge was biased against him and continually coached the prosecution during the hearing; and
(c) The defendant did not produce to the County Court any evidence or proof of its authority to charge and prosecute him for the offences alleged to have been committed.
In his second affidavit in support of the Originating Motion,[9] the plaintiff deposed –
[9]Affidavit of Steven Lazarevic sworn 13 June 2014.
(a) That in giving evidence in the County Court on 11 November 2013 the defendant (now named in the heading of the affidavit as Senior Constable Andrew Tanner rather than the Victoria Police) admitted that the Victoria Police force is a corporation;
(b) When questioned, Senior Constable Andrew Tanner did not, could not or refused to give any explanation or evidence to prove whether he had any legal authority to prosecute the plaintiff for the offence alleged, and, if so, what that authority was and where or how it was legally created in the first place;
(c) The presiding judge in the County Court did not afford the plaintiff a proper opportunity to present his case or to make out his defence and, despite the judge questioning Senior Constable Andrew Tanner and suggesting answers to him, Senior Constable Andrew Tanner failed to give any explanation as to what authority he possessed to prosecute the plaintiff for the alleged offence; and
(d) He sought leave to issue his proceeding out of time. The reason for failing to commence the proceeding within the required time limit was that he is acting for himself, cannot afford adequate legal representation, and, being a lay person, it has been difficult for him to familiarise himself with the legal process and the required procedures. He said he has been to the Court Registry on a number of occasions and has been advised and assisted by the Court staff on how to get his documentation in order. He was unaware of the strict time limits involved until his last visit to the Registry, when he was told that his material should include an explanation as to his tardiness.
On 28 July 2014 the matter came before another Associate Judge. The plaintiff then explained that he had documents that he wanted to put before the Court to support his application to extend the time for commencing his proceeding. He was told that he needed to file and serve any document with an affidavit. He was also told that in any application to extend time, he needed to establish that he had a prima facie case and that mere assertions that he was denied natural justice were not adequate.[10]
[10]Order of the Honourable Associate Justice Zammit made 28 July 2014, as noted in ‘Other Matters’.
Pursuant to that Order of the Associate Judge, the plaintiff was required to file and serve any further affidavits in support of his application to extend time by 8 September 2014. The defendant was required to file and serve any documents relied upon by 22 September 2014 and the application was adjourned to this day.
By affidavit filed on 24 September 2014, that is to say well out of time for the filing of any further affidavit as required by the Order, the plaintiff deposed that –
(a) He has listened to a recording of the hearing before the County Court Judge and ‘I respectfully believe that his Honour made some errors and failed to take some things into account during the conduct of the hearing and I have outlined these errors below’;
(b) In order to properly put forward his arguments to the Court he wanted firstly to establish the ownership of the road in which he was travelling, the identity of the Informant’s employer, whether that employer was a corporation, and whether the Informant or employer were transacting a business, trade or commerce with him at the time he was issued with the infringement notice the subject of the original prosecution in the Magistrates’ Court;
(c) During his cross-examination of the Informant, Senior Constable Andrew Tanner, the plaintiff pressed him as to whether, at the time of the alleged offences, the Informant or the corporation which employs him, was conducting business with the plaintiff. The plaintiff was attempting to lay the basis for an argument that the State of Victoria did not have the power or authority to impose penalties on him;
(d) The County Court Judge stated that he understood the line of questioning and he decided that he considered the plaintiff’s questions to be relevant, but his Honour was of the view that the witness was not qualified to answer the plaintiff’s questions notwithstanding that Counsel for the prosecution did not raise any objections to the questions;
(e) The County Court Judge on a number of occasions attempted to answer questions on behalf of the Informant;
(f) The prosecution did not call any other witness to give evidence. The County Court Judge proceeded to find in favour of the prosecution despite the fact that it failed to call a witness who was qualified to answer the questions that the Informant had been unable or unqualified to answer; and
(g) The County Court Judge proceeded to make his decision without any regard to the point the plaintiff had tried to make and without any evidence before him.
It is noteworthy that the plaintiff, in his affidavits in support of the Originating Motion and Summons, does not give any detail as to the nature of the offences with which he was charged nor any detail as to the conduct of the proceeding, save for material to which I have just referred that was included in his third and last affidavit.
Affidavit in Answer
The solicitor for the defendant (the Victoria Police), Mr Adrian Mark Castle, swore an affidavit opposing the grant of leave to extend the time. I have already referred to this affidavit in the ‘Background’ section of these reasons. Without his affidavit the Court would be at a loss to understand the significance of the proceedings leading to the convictions and orders in respect of which the plaintiff seeks to have a judicial review.
In that affidavit, Mr Castle refers to and produces –
(a) The charges preferred against the plaintiff by the Informant;
(b) The convictions and orders of the Magistrates’ Court of 12 July 2013;
(c) The Notice of Appeal to the County Court;
(d) The convictions and orders of the County Court Judge resulting from that appeal;
(e) A DVD recording of the hearing of the appeal before the County Court Judge, a copy of which was handed to the plaintiff on 28 July 2014;
(f) A copy of the statement made by the Informant in respect of the charges preferred against the plaintiff included in the Brief of Evidence;
(g) A s 84(1) certificate[11] which was tendered and marked as Exhibit A at the hearing of the County Court appeal. This certificate certified under that section that, amongst other things, the plaintiff’s driver’s licence was suspended for a period of three months from 21 February 2013. The certificate is, by virtue of the section, admissible in evidence and is proof of the matters stated in it in absence of proof to the contrary; and
[11]Road Safety Act 1986, certificate under s 84(1), Castle affidavit OPP-7.
(h) Two letters written by Mr Castle to the plaintiff on 8 and 23 July 2014. Relevantly these letters:
(i) pointed out that the Originating Motion had not been served on the defendant or the Informant, but that the Summons had been received;
(ii) attached a copy of Order 56 of the Rules and informed the plaintiff that his application was about five months out of time and that the time will only be extended in special circumstances;
(iii) informed that the Associate Judge has power to hear any application to extend the time; and
(iv) notified that the DPP had obtained a recording of the hearing in the County Court and a copy would be available at the hearing on 28 July 2014.
Mr Castle also swears that, after listening to the DVD of the hearing of the Appeal, the evidence given by the Informant at the Appeal accorded with the statement of the Informant in the Brief of Evidence.
The Informant’s statement of evidence includes the following:
(a) The Informant is a Senior Constable of Police stationed at the Yarra Highway Patrol;
(b) On Tuesday 19 March 2013 whilst on motorcycle patrol duties in the Yarra area at about 12.15pm, he observed a Holden sedan registered SBC-888 driving north on Coppin Street, Richmond, with a male driver holding a mobile phone in his left hand, held up to his left ear and the male was talking;
(c) He intercepted the driver in Highett Street, Richmond, and had a conversation with him;
(d) On the plaintiff producing his licence and the Informant checking it, it emerged that the licence had been suspended based upon demerit points incurred;
(e) In the course of the conversation the following exchanges between the plaintiff and the Informant occurred:
He said,[T]o be honest with you, not to give you a hard time, I’m just sick of the fucking useless government robbing people, and I’m sick of statute laws and I’m sick of the bullshit you know. In the laws eyes I’m wrong because I drive, yes but you give fucking licence to indians and somalians who have no fuckeing idea how to drive. I think I can drive a car talk on the phone and probably eat too. I’ve driven for 25 plus years, ive never had an issued now…[sic]
I said, You would just about be done for careless driving doing that.
He said,The statute laws are statute laws, you know. We tend to probably be at loggerheads where you believe they are right, I know they are wrong…
I said,Your licence is suspended from 21/02/2013.. so a month ago.. to 20/05/2013.. 3 months.
He said,Hell.. three months.
I said,What paperwork have you received from Vic roads in the mail.
He said,They probably gave me the option.. be a good boy for three months.
I said,A good boy for 12 months.
He said,I said I’d be a good boy for 12 months.. but I better take the 3 months probably a better option… I’m fuck anyway round. I’d probably take the 12 months, I need my day I court anyway. [sic]
I said,You on bail or anything.
He said,No.
I said, You been in court before though..
He said,Yeah.. course I have… I need to take on this statute law bullshit..ive got a good mate of mine who’s a good lawyer for this shit and he beat a whole bunch of fines… you know.. as they say.. need to get this shit sorted out. [sic]
I said,..well, you cant drive until the 20th of may, ok, that’s when your suspension finishes. [sic] I will be holding this [referring to the driver’s licence] and forwarding it to Vic roads, its an offence not to, not that im going to be charging you with it but I will be charging you with drive while suspended. [sic] Vic road have got your current address. Atherton road is all current. [sic]
…
I said, ok…Your reason for driving while suspended.
He said,It really doesn’t matter, I mean I don’t mean to give you a hard time but I just don’t care… really don’t care about this law. I don’t care about these by laws.
I said,well.. if your going to start taking them on. It will get worse before it gets better for you.
He said,I could tell you something, as I said I don’t mean to give you a hard time, I know a lot of people who beat these laws and there are all bullshit laws.
I said,Well that’s your opinion, doesn’t make it right.
He said,Can I ask you a question?
I said,Yes.
He said,Am I here present with you.
I said,Yes.
He said,Am I here as a physical person.
I said,Yes.
He said,So what are statute laws.
I said,Statute laws…they are made in parliament.
He said,How do they exist, what is the creation of a statute law.
I said,I told you that.
He said,Members of parliament start it that correct, but a statute law is designed for 2 things, the dead, and a corporation. [sic] you might want to have a look at that. [sic]
I said,I think you better get some slightly better legal advice… Alright. I’ll mail this out to you.
He said,What do you want me to do with this car.
I said,Parked it between those two cars.
This evidence of the exchanges between the plaintiff and the Informant discloses some of the grounds the plaintiff sought to advance in defence of the prosecutions and in support of his argument that he had an arguable case for judicial review.
Submissions
The plaintiff’s submissions in support of his application to extend the time within which to commence his proceeding made little sense. He submitted that:
(a) He had notes made by officers in the Registry at either the County Court or the Supreme Court (it was not clear) saying that there was no time limit on the commencement of his proceeding to review the decision of the County Court Judge. However, he was not able to find them and, notwithstanding the Orders made on 28 July 2014, nothing of this kind was proved by his affidavits beyond what I have already recorded;
(b) No one told him of the time limit;
(c) The whole system is corrupt, starting with the Victoria Police, a corporation;
(d) Money extorted by the Victoria Police is being sent to the Futures Market in the United States of America;
(e) He was willing to pay the fines that were imposed upon him but only to a charity of his choice;
(f) He does not recognise the authority of the laws made relating to, amongst other things, driving offences;
(g) The Victoria Police abuse the laws; and
(h) He confirms that his grounds include matters he identified in his conversation with the Informant at the time that he was apprehended, in particular that the whole basis of the legal system is corrupt and that the authority to deal with him has not been established.
In addition to these matters I take into account the material to which he swore in his affidavits, particularly the second affidavit, as to the reasons for his delay in commencing the proceeding.
Mr Castle, who appeared for the defendant (and should it be relevant, the Informant) submitted that:
(a) There was no identifiable denial of procedural fairness nor any error made by the County Court Judge on the face of the record, nor any other basis for judicial review;
(b) The plaintiff’s assertions that the legal system was corrupt and that there was no authority either for the Informant, the Victoria Police or the Courts to impose fines upon him was unsubstantiated by any evidence or any sensible legal argument. In the result, there was no prospect of the judicial review being successful; and
(c) The delay in the commencement of the proceeding was lengthy and there was no clear explanation for the delay, or reason why nothing was done within the 60 days from the conviction and fines imposed by the County Court Judge.[12]
[12]The information as to these matters was as set out in his affidavits to which reference is made above.
Extending Time – Special Circumstances
There is a considerable range of authorities on what needs to be shown in order to establish special circumstances under r 56.02(3) of the Rules.[13]
[13]They include Denysenko v Dessau, (1996) 2 VR 221, Beach J; Prencipe v Nisselle, [1999] VSC 137; Kay v Legal Profession Tribunal [2000] VSC 460, Beach J; Lednar v Magistrates’ Court, [2000] VSC 549, [122]-[150] per Gillard J; Carra v Hamilton, (2001) 3 VR 114; [2001] VSC 215; Mann v Medical Practitioners Board of Victoria [2004] VSCA 148; Somerville Retail Services Pty Ltd v Vi [2008] VSC 196; Goodman v Victorian Civil and Administrative Tribunal and Ors [2011] VSC 35, [28] and [29]; Somerville Retail Services Pty Ltd, [2008] VSC 196, [42]–[44].
The expression ‘special circumstances’ is by its very nature incapable of precise or exhaustive definition.[14] Whether circumstances are special depends upon the context in which they occur. This does not mean that the circumstances must be unique; but they must have a particular quality of unusualness that permits them to be described as special: Per Toohey J in Re Beadle and Director‑General of Social Security,[15] See also Mann v Medical Practitioners Board of Victoria (‘Mann’);[16] Lednar v Magistrates’ Court (‘Lednar’),[17] Carra v Hamilton (‘Carra’).[18]
[14]Re Beadle and Director‑General of Social Security (1984) 6 ALD 1, 3. An appeal from that decision was dismissed by the Full Court of the Federal Court of Australia (1985) 60 ALR 225 (Bowen CJ, Fisher and Lockhart JJ); see also Goodman v Victorian Civil and Administrative Tribunal and ors [2011] VSC 35, [28].
[15](1984) 6 ALD 1, 3.
[16][2004] VSCA 148.
[17][2000] VSC 549, [122]-[150] per Gillard J.
[18](2001) 3 VR 114; [2001] VSC 215, [24].
In Mann v Medical Practitioners Board of Victoria[19] at first instance, Osborne J expressed the view that it was not appropriate to seek to define the meaning of the phrase ‘special circumstances’. The phrase is deliberately flexible and designed to encompass cases that might not easily be anticipated by more prescriptive words. His decision was upheld on appeal and no error of principle in his reasoning was discerned.[20]
[19][2002] VSC 256, [18].
[20]Mann [2004] VSCA 148, [72] (Hansen AJA).
The requirement that the plaintiff show ‘special circumstances’ requires that he make out circumstances that are not ‘general in character’,[21] but something exceeding ‘that which is usual or common’.[22]
[21]Mann v Medical Practitioners Board of Victoria [2004] VSCA 148, [68] (Hansen AJA) (Chernov JA [5] and Nettle JA [8] agreed with Hansen AJA).
[22]Mann [2004] VSCA 148, [70] (Hansen AJA).
It is clear from the wording of the sub-rule (and the authorities) that the special circumstances are not confined to the failure to commence the proceeding within the prescribed period of 60 days.[23] The terms of the rule may be contrasted with other provisions requiring particular reasons for an extension of time. For example, s 109(5) of the Magistrates’ Court Act 1989 provides for an extension of time to appeal, but only if the failure to institute the appeal within the period referred to in sub-section (2)(a) was due to exceptional circumstances. The sub-section was considered by McDonald J in Schwerin v Equal Opportunity Board and Ors[24] and his Honour held that it was necessary for an appellant to establish that a failure to institute an appeal within time was due to exceptional circumstances and it was not sufficient to establish exceptional circumstances generally with respect to the appeal.[25]
[23]Mann v Medical Practitioners Board of Victoria [2004] VSCA 148, [57] and [72] (Hansen AJA); Lednar v The Magistrates’ Court [2000] VSC 549, [140]-[143] (Gillard J) not following Denysenko v Dessau [1996] 2 VR 221, 224 (Beach J).
[24](1994) 2 VR 279.
[25]Cited in Lednar at [139] per Gillard J.
The language of the requirement in r 56.02(3) is significantly different. It is general language precluding the Court extending time ‘except in special circumstances’. This expression has been said to be ‘discouraging rather than encouraging’ because of its negative expression.[26]
[26]Carra per Balmford J at [24].
The authorities establish that:
(a) The rule requires the Court to be objectively satisfied that special circumstances exist;[27]
[27]Mann v Medical Practitioners Board of Victoria [2002] VSC 256, [18], approved in Mann.
(b) The existence of special circumstances is to be determined by reference to all the circumstances of a case;[28]
[28]Mann v Medical Practitioners Board of Victoria [2002] VSC 256, [19], approved in Mann.
(c) The factors relevant to the exercise of the discretion under Rule 56.03(2) include, but are not limited to:
(v) the period of the delay;
(vi) the reason for the delay;
(vii) whether the plaintiff has an arguable case;[29]
[29]A manifest excess of jurisdiction might in some cases amount to special circumstances: Mann v Medical Practitioners Board of Victoria, [2002] VSC 256, [19], approved in Mann. Since the introduction of the Civil Procedure Act 2010, Part 4.4, it seems to me that this question should be cast in terms of whether the plaintiff has a real prospect of success.
(viii) the justice to both parties, including the prejudice to the parties; and
(ix) the public interest in the finality of litigation.[30]
[30]Mann [2004] VSCA 148, [57], [58] and [72] (Hansen AJA); Lednar v The Magistrates’ Court [2000] VSC 549, [137], [142] and [143] (Gillard J); Young v The County Court [2005] VSC 311, [17] (Osborn J); Goodman v Victorian Civil and Administrative Tribunal and ors [2011] VSC 35, [29].
It is important to be aware of the way in which an arguable case, or a case that is not arguable, may be taken into account. The fact that the plaintiff may demonstrate an error below, or other grounds for judicial review, does not automatically result in there being ‘special circumstances’, for if that were so there would be little practical point to the time limit contained in the Rule.[31] On the other hand, where it is clear that a plaintiff’s grounds are not arguable, or he has no real prospects of success, there will ordinarily be no point in extending the time and therefore no special circumstances exist.
[31]Mann v Medical Practitioners Board of Victoria, [2002] VSC 256, [19], approved in Mann.
The Nature of the Relief
The common law jurisdiction of this Court to review decisions of inferior courts is subject to the procedure set out in Order 56 of the Rules. The jurisdiction is supervisory and does not entitle this Court to canvass matters that it would on an appeal. In a judicial review the Court is concerned with the legality of what was done by the court or tribunal below, and is not concerned with the merits of the decision under review. This is to be contrasted with an appeal, where the question usually is whether the decision is right or wrong.[32]
[32]Lednar at [98]-[103] per Gillard J.
This is made clear in the decision of the High Court in Craig v South Australia[33] where the Court noted that:
[33](1994) 184 CLR 163, 175–6.
(a) Certiorari was a process by which a superior court, in the exercise of its original jurisdiction, supervises the acts of an inferior court or tribunal. It merely enables the quashing of an impugned order or decision upon one or more of a number of distinct grounds of which the most important are:
(x) jurisdictional error;
(xi) failure to observe some applicable requirement of procedural fairness;
(xii) fraud; and
(xiii) error of law on the face of the record;
(b) 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;
(c) 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; and
(d) 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.
Has the Plaintiff Any Prospects of Success?
I have set out above the grounds of the relief stated in the Originating Motion and expanded on in the affidavits of the plaintiff. There is nothing in the material advanced by the plaintiff that truly bears upon the merit of his application for judicial review. All of the material necessary for an assessment of that kind has been introduced in the affidavit of Mr Adrian Castle sworn on 26 September 2014.
Procedural Fairness (and Bias)
The first ground of review is a denial of natural justice, or procedural fairness, in the County Court hearing. This ground, as expanded on in the affidavits, involves the matter not being heard before a jury and the Judge being biased by continually coaching the prosecution during the hearing.
There is no scope for a jury in the prosecution of a traffic offence. In this case the offences were under s 30 of the Road Safety Act1986 (driving whilst disqualified, i.e. licence suspended), and rule 300 of the Road Safety Road Rules2009, being Rules made under s 95D of the Road Safety Act. These offences are summary offences and were dealt with in the Magistrates’ Court at Melbourne as summary offences under Part 3 of the Criminal Procedure Act2009. There is no right to a jury and moreover, having viewed the DVD of the hearing before the County Court Judge, there was no request for a jury.
The bias alleged against the Judge is set out in the second affidavit of the plaintiff referred to in paragraph 16 above. To the extent that these assertions constitute evidence of the way the hearing was conducted by the Judge, after viewing the DVD of the hearing, I am of the view that there is simply no basis for them. The Judge made it clear that in the cross-examination of the Informant, the plaintiff and his McKenzie Friend were limited to questions that were proper and relevant. There were none that were relevant to the charges laid. There was no contest as to the elements of the offences.
The questions asked by the plaintiff of the Informant in an attempt to establish:
(a) The ownership of the road on which he was travelling,[34] the identity of the Informant’s employer, whether that employer was a corporation, and whether the Informant or employer were transacting a business, trade or commerce with him at the time he was issued with the infringement notice the subject of the original prosecution in the Magistrates’ Court; and
(b) That at the time of the alleged offences, the Informant or the Victoria Police, which employs him, was conducting business with the plaintiff,
were directed to laying a basis for an argument that the State of Victoria did not have the power or authority to impose penalties on him. These questions were partly allowed, not wholly, by the learned Judge clearly because it was unclear to what point or defence those questions were leading.
[34]A matter that is patently irrelevant because of the definition of ‘road’ in the Road Safety Act1986 (s 3) and in the Road Safety Road Rules 2009 (rule 12). Putting aside special declarations, a road for the purpose of the charges in this case is an area that is open to or used by the public and is developed for, or has as one of its main uses, the driving or riding of motor vehicles.
It turned out that the questions related to the legal authority to prosecute and did not involve any challenge to the status of the Informant as a Police Officer or his authority under the applicable legislation to lay the Charges (as to which see s 77 of the Road Safety Act1986). The challenge concerned a muddled and misconceived submission that seemed to be based on s 92 of the Commonwealth Constitution to found the proposition that the Road Safety Act1986 (and the rules of the road made under it)—indeed all the laws made by or with the authority of the Parliament of Victoria relating to the right of citizens to freedom of movement on the roads—were in contravention of s 92 and, by virtue of s 109 of the Constitution, were invalid. The Judge dealt with the questions directed to this defence with tolerance and patience, giving the plaintiff the appropriate liberty to put the matter as a submission of law.
There was no occasion on which the Judge suggested answers to the Informant. He merely prevented irrelevant questions being put to him and recast those questions put by the plaintiff or his friend that might have called for an answer[35] in a sensible way, so as to make them clear.
[35]It seems to me that none of the questions were in any way relevant in any event.
Overall, the learned Judge was astute to ensure that the plaintiff had a fair hearing and he gave the plaintiff every opportunity to present a sensible defence to the charges.
There is no basis whatever in the ground of a denial of procedural fairness nor the ground, if it be a ground, that the Judge was biased.
Proof of Authority
This ground is not a ground of judicial review at all in the context of this case. There was no challenge to the status of the Informant, as I have said, nor as to his authority to lay the charges. The challenge was at a higher level and was misconceived. Were there anything raised by the plaintiff as to the authority of the Informant to bring the charges—and there was not—the answer was and is in the legislation, namely, s 77(2)(a) of the Road Safety Act1986. There was accordingly no error of law and no want of jurisdiction in the County Court to deal with the Appeal.
Delay
The delay in this case is substantial. To be within time, the proceeding must have been commenced by 28 January 2014.[36] It was not commenced until 16 May 2014, a delay of nearly four months.
[36]Rule 3.04 of the Rules: ‘process in vacation’—In calculating the time fixed by these Rules or by any order fixing, extending or abridging time, the period from 24 December to 9 January next following shall be excluded.
In this case, the explanation for the delay is, when properly analysed, ignorance of the fact that there is a time limit. That is, the plaintiff relies upon his inability to obtain any legal advice (without substantiating that inability otherwise than by assertion) and his reliance upon the registry staff for assistance in the procedural steps and requirements for launching an application for judicial review under Order 56.
I do not accept that this is an explanation for delay which supports the proposition that the circumstances are out of the common run of cases. They are not. The position of a litigant in person is commonly one of a lack of familiarity with the law and the procedure. This case exemplifies that position in all respects. There is nothing unusual or out of the general run of matters that litigants, whether represented or not, must undertake investigations and research in order to pursue their rights of review. There is nothing special in the fact that a lay person has a limited understanding of the procedural requirements for the launching of an application in this Court. It is the norm. In short, there is nothing special about the position in which the plaintiff found himself.
Moreover, in the circumstances of the lack of merit in the application, there is no good reason to extend the time within which he should have to commence proceedings. There needs to be finality to this litigation.
Conclusion
For the reasons given above, I conclude that there are no special circumstances warranting an extension of time for the plaintiff’s commencement of this proceeding.
I will therefore order that:
(a) The application to extend the time within which the plaintiff my commence this proceeding is refused;
(b) The proceeding is dismissed;
(c) The plaintiff shall pay the defendant’s costs.
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