Makrogiannis v Magistrates' Court of Victoria (No 2)
[2021] VSC 302
•26 May 2021
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2021 0006
| KON MAKROGIANNIS | Appellant |
| v | |
| THE MAGISTRATES’ COURT OF VICTORIA AT MELBOURNE | First Respondent |
| and | |
| WINNIE SARPONG | Second Respondent |
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JUDGE: | Incerti J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 22 April 2021 and on the papers |
DATE OF RULING: | 26 May 2021 |
CASE MAY BE CITED AS: | Makrogiannis v Magistrates’ Court of Victoria & Anor (No 2) |
MEDIUM NEUTRAL CITATION: | [2021] VSC 302 |
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COSTS – Appeal from an order of the Magistrates’ Court of Victoria under s 272 of the Criminal Procedure Act 2009 (Vic) – Appeal successful – Costs order against inferior court – Principles – Whether Magistrates’ Court liable for costs – Criminal Procedure Act 2009 (Vic) – Magistrates’ Court at Heidelberg v Robinson (2000) 2 VR 233.
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APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Ms A Brennan with Mr M Reardon | Victoria Legal Aid |
| For the First Respondent | Ms K Clark | Magistrates’ Court of Victoria |
| For the Second Respondent | Ms M Isobel | Victorian Government Solicitor’s Office |
HER HONOUR:
On 22 April 2021, I set aside the orders of the Magistrate who had cancelled the treatment and supervision part of the appellant’s drug treatment order (‘DTO’) under s 18ZP(1) of the Sentencing Act (‘the Act’) and activated all of the remaining custodial component of the DTO under s 18ZP(2)(a) of the Act.
Further, I ordered that the days the appellant served in custody since 15 December 2020 to the day of my orders constituted the entirety of the custodial part of the DTO and discharged the appellant from the DTO.
The question of costs was raised briefly and was deferred to written submissions. I have since received written submissions on behalf of the first respondent dated 12 May 2021 and the second respondent dated 14 May 2021. The appellant did not file written submissions but relied upon oral submissions.
In summary, I concluded that the appellant had been denied procedural fairness by the Magistrate in relation to providing the appellant with the opportunity to make submissions in relation to s 18ZP(2) and that the Magistrate did not correctly apply the test for cancellation in s 18ZP(1)(d).
The appellant applies for costs and does not have a particular position as to any apportionment between the first or second respondents. The Magistrates’ Court of Victoria at Melbourne (‘the Magistrates’ Court) did not appear at the hearing which took place earlier on 24 March 2021 but has sought to be heard on the question of costs.
The Court’s jurisdiction to order costs is derived from s 408 of the Criminal Procedure Act 2009 (Vic) (‘CPA’) which provides the Court with a wide and unfettered discretion. Section 408 of the CPA does not qualify the discretion on an application such as the present one. There is no particular provision in the CPA which precludes the making of an order against an inferior court, including the Magistrates’ Court.
On the issue of costs there are two considerations by the Court:
1 Should the appellant have his costs?
2 If so, who should pay the costs?
This appeal arose out of a criminal proceeding in the Magistrates’ Court, however, this Court is exercising its civil jurisdiction. The applicant was forced to come to this Court to obtain an order setting aside the Magistrate’s order. He is the successful party. In civil proceedings, costs ordinarily follow the event and there can be little question that the appellant is prima facie entitled to his costs.[1] The difficult question is who should pay costs.
[1]Leigh Robinson v Patterson & Anor [1999] VSC 60, 24-26.
It is important to note that the second respondent, Winnie Sarpong, was the appellant’s case manager on behalf of Community Correctional Services Victoria. It was the second respondent that filed an application to the Drug Court to cancel the DTO on the grounds that the continuation of the treatment order was not likely to achieve one or more of the purposes to which it was made, pursuant to s 18ZP(1)(d) of the Act. The second respondent prepared the report dated 14 December 2020 in support of the application, which in summary recommended that the appellant’s DTO be cancelled.
On 15 December 2020, the application to cancel the DTO proceeded as a contested hearing before the Magistrates’ Court.
The grounds of appeal raised two issues, the first, one of statutory construction and, the second, whether the Magistrate failed to afford the appellant procedural fairness.
In my judgment I made no finding against the second respondent. The grounds of appeal did not attack any error of law or breach of natural justice by the second respondent. I agree with the second respondent’s submission that it cannot be said that the second respondent in any way contributed to the course adopted by the Magistrate. Further, I make no criticism of the second respondent’s participation and opposition to the appeal. The second respondent’s submissions provided the Court with a contradictory view to the appellant when no such view would otherwise have been provided. I consider it would be unfair and inappropriate to penalise the second respondent for her active role in circumstances when the Magistrates’ Court took no active role in the proceeding in accordance with the principles in R v Australian Broadcasting Tribunal; Ex parte Hardiman.[2]
[2](1980) 144 CLR 13.
Importantly, the second respondent did not suggest or encourage the course of action adopted by the Magistrate, particularly, his decision not to invite opposing counsel to cross-examine the appellant at the conclusion of his evidence or for not taking other steps in the way in which the hearing was conducted before the Magistrate. These were matters for the Magistrate. As I said, I find the second respondent was in no way responsible for the error of law made by the Magistrate. Further, there is no evidence that she contributed to the course adopted by the Magistrate.
As such, I make no order for costs against the second respondent.
That brings me to the question of whether the appellant’s costs should be paid for by the first respondent.
The relevant principles in relation to making an order for costs against the Magistrates’ Court are stated by Brooking J in the decision of Magistrates’ Court of Victoria at Heidelberg v Robinson (‘Robinson’).[3] His Honour stated:
In my view, the notion of serious misconduct or serious impropriety may be said to underlie the award of costs against inferior courts provided that it is understood that there may be misconduct or impropriety notwithstanding the absence of any knowing departure from elementary principles. By this I mean that the person or persons constituting the court may be said to be guilty of serious misconduct or serious impropriety if they failed to observe some fundamental principle of justice notwithstanding that they were ignorant of that principle. Some principles are so fundamental that it may be regarded as misconduct or impropriety in the necessary sense for an inferior court not to observe them notwithstanding that the court is unaware of them. There is, I think, here to be drawn a distinction between the rules of substantive law and the fundamental rules of natural justice. The superior court may be prepared to regard even “an astounding blunder” in a matter of substantive law as not exhibiting “gross ignorance” in a necessary sense and, in the absence of “perversity”, may decline to make an order for costs against the inferior court, although a stage might be reached at which the rule of substantive law that had, albeit through ignorance, not been applied was so fundamental as to require the case to be viewed as one of misconduct or impropriety and so as making an award of costs appropriate. But when one is concerned, not with some “ordinary” rule of substantive law, but with the fundamental principles concerning procedural fairness or natural justice, the inferior court may be held not to be excused by its own ignorance. … But in saying this I do not wish to suggest that a mere blunder should attract an award of costs: the approach should still be benign, or reasonably so, where a bona fide mistake has been made. … A settled practice has developed of not awarding costs against an inferior court merely because that court has made a mistake. The practice has been to require a clear case of serious misconduct - misconduct of such a nature as to justify an award of costs. Categories of such misconduct have come to be recognised. They are not exhaustive. What the courts have done is lay down principles or guidelines for the exercise of the discretion.[4]
[3]Magistrates’ Court of Victoria at Heidelberg v Robinson (2000) 2 VR 233 (‘Robinson’).
[4]Robinson, 237-241 (footnotes omitted).
His Honour noted that such orders are a rarity[5] and that they will only be made where there is either serious misconduct or where it can be concluded that the Magistrate has behaved perversely.[6]
“Perverse” is a word often found in the cases in New South Wales. The word is used to suggest something more than error, or manifest error, and conveys some such notion as obstinacy or persistence in error: Cummins v. Mackenzie. So in the early case of R. v. Smith Stephen, J. said of the magistrate, “I take it for granted that with this section before him couched in terms as plain as words could be, he refused to follow it.” In Ex parte Vincent the Full Court of New South Wales, faced with what it regarded as “an extraordinary and astounding blunder”, was not prepared to say that the magistrate had behaved perversely. The idea seems to be that a magistrate is not to be ordered to pay costs for acting on an erroneous view of the law, even though it is very plain that that view was wrong, unless the magistrate has really chosen to ignore the law.
[5]Robinson, 236 [5].
[6]Robinson, 237-238 [7].
His Honour then referred to what was said by Owen J in Ex parte Taylor; Re Butler:[7]
It is clear to my mind that the magistrate has not attempted to apply his mind to the facts or the law of the case. He obviously had come into Court with his mind made up, and without allowing the solicitor for the husband to be heard, said: ‘I have made up my mind, I won’t listen to you’. Is that justice? ... It is contrary to natural justice ... . Where a magistrate has made an honest mistake in attempting to carry out his duties the Court does not punish him by awarding costs against him. But in this case I am satisfied that the magistrate disregarded his judicial position, and his conduct ... is such as to justify the Court in awarding costs against him.
[7](1924) 41 WN (NSW) 81.
Brooking JA concluded:[8]
I think it may be said that where a magistrate acts “perversely”, in the sense in which the cases use that word, he is disregarding his judicial position, as Owen, J. put it.
[8]Robinson, 238 [7].
In the present case, the Magistrate erred in failing to apply the correct test under s 18ZP(1)(d) of the Act. The Magistrate was required to make a decision on a point of law which involved a difficult question of statutory construction. The fact that the Magistrate erred in law does not constitute exceptional circumstances inviting an award of costs against the first respondent.
However, that is not the end of the matter. In this case, the Court was not just concerned with some ‘ordinary’ rule of substantive law, but with the fundamental principles concerning procedural fairness or natural justice, and as such the inferior Court may be held not to be excused by its own ignorance.[9]
[9]Robinson, 239 [10].
As I have said, this was not a case in which it could be said the Magistrate was guilty of misconduct or impropriety. However, it is tolerably clear that having made the decision to cancel the treatment and supervision part of the DTO, the Magistrate made up his mind to activate the whole of the custodial part of the DTO without hearing submissions as to the penalty or consequences of cancelling the DTO.
The reactivation of the custodial part of the DTO resulted in the severest consequences possible for the appellant. The appellant’s liberty was at stake. The primary basis of the Drug Court regime is to reduce crime in the community by addressing drug addiction in a rehabilitative, therapeutically-oriented manner and is diminished once the punitive, custodial part of the DTO is activated. As I have said, the Magistrate imposed the harshest possible penalty allowed by the reactivation of the custodial part of a DTO directly after having heard evidence of the appellant’s breach of the DTO’s conditions. The appellant’s response to the Magistrate’s decision demonstrates his shock and dismay at the approach adopted. At the conclusion of the appellant’s evidence, the Magistrate made his decision to cancel the treatment and supervision part of the DTO, in less than 120 words. The Magistrate continued, in less than 40 words, to impose the harshest custodial activation available without inviting any submissions on that issue.
The imposition of such a harsh custodial activation is a last resort available to the Magistrate under the regime. The requirements of procedural fairness operate to impose safeguards to ensure the Magistrate has all the appropriate information to make such a decision. It was therefore essential and incumbent on the Magistrate to ensure that he received submissions from the parties as to the extent of the appellant’s compliance in addition to mitigating matters in general. It is only through such submissions that the Magistrate could have known whether all of the relevant information was before the Drug Court or whether or additional information or evidence needed to be adduced.
His Honour made a deliberate decision to deal with the question of penalty and the reactivation of the custodial sentence on the spot. It was imperative given that he was dealing with the appellant’s liberty in the context of the Drug Division of the Magistrates’ Court and imposing such a harsh custodial activation that the Magistrate exercise his judicial power fairly and properly. He failed to do so.
In dealing with the reactivation of the custodial part of the DTO in such a brief manner and in failing to give the appellant an opportunity to make submissions, the Magistrate did not exercise the caution necessary, in such critical circumstances.
This is not an instance of the Magistrate behaving in a rude and abrupt way. However, the Magistrate’s exercise of judicial power in this case extended to imposing the harshest possible penalty allowed by reactivation of the custodial part of the DTO and it denied the appellant the benefit of the treatment and supervision part of the DTO which is designed to treat the underlying drug addiction. The Magistrate proceeded hastily and without due process in deciding to reactivate the remaining custodial sentence in the circumstances.
There was no requirement for the Magistrate to determine the matter immediately. There was opportunity for the Magistrate to invite submissions and if necessary allow an adjournment for his Honour to reconsider the appellant’s position. Regrettably, the Magistrate persisted with the course and imposed the harshest custodial activation available.
I am satisfied that the Magistrate acted perversely (in a legal sense as explained in Robinson) and that an order for costs should be made against the first respondent.
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