Marijancevic v Page
[2020] VSC 68
•28 February 2020
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S CI 2018 01828
| JOSEPH MARIJANCEVIC | Plaintiff |
| v | |
| KIRSTY PAGE, VICTORIA POLICE | First Defendant |
| and | |
| COUNTY COURT OF VICTORIA | Second Defendant |
| and | |
| ROADS CORPORATION | Third Defendant |
---
JUDGE: | Richards J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 31 January and 3 February 2020 |
DATE OF JUDGMENT: | 28 February 2020 |
CASE MAY BE CITED AS: | Marijancevic v Page |
MEDIUM NEUTRAL CITATION: | [2020] VSC 68 |
---
ADMINISTRATIVE LAW – Judicial review – Plaintiff convicted in Magistrates’ Court of offence of driving while driver licence suspended – Appeal to County Court from conviction and sentence – Appeal withdrawn after subpoena to Roads Corporation set aside – Whether appeal judge should have recused himself for apprehended bias – Whether appeal judge gave self-represented accused a reasonable opportunity to present his case – No error – Proceeding dismissed – Road Safety Act 1986 (Vic), s 84; Evidence Act 2008 (Vic), s 91.
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr DJ Carolan | Simon Legal |
| For the First Defendant | Mr BL Sonnet | Abbey Hogan, Solicitor for Public Prosecutions |
| For the Third Defendant | Mr MB Peckham | Minter Ellison |
HER HONOUR:
On 30 December 2016, Joseph Marijancevic was charged with two offences under the Road Safety Act 1986 (Vic). The informant for both charges was Senior Constable Kirsty Page. She alleged that, on 23 July 2016, Mr Marijancevic drove a motor vehicle on a highway while his driver licence was suspended, contrary to s 30(1) of the Road Safety Act. He was also charged, under s 59(2), with failing to produce his licence when requested, and stating a false name. The statement of alleged facts in the police brief read:
On Saturday 23rd July 2016, the accused was the driver of a motor vehicle when intercepted by Senior Constable PAGE at a random breath testing site in Churchill Avenue, Braybrook.
The accused was driving a grey Mitsubishi sedan, registration TYX628. Senior Constable PAGE spoke to the driver, who provided a false name, that of his brother, John William HENDERSON. The accused licence was suspended by Vicroads on 10th August 2014 due to a failure to re-sit a knowledge and drive test. The accused refused to speak to S/C PAGE when follow up enquiries were made at the accused’s residential address.
In October 2017, Magistrate Masood found Mr Marijancevic guilty of both charges. He was convicted and fined $400 as part of an aggregate order. There was also an order that he be suspended from driving in Victoria for seven months, effective from 24 October 2017. Mr Marijancevic immediately appealed to the County Court against these orders.
The appeal was listed for hearing on 19 March 2018. On 13 March 2018, Mr Marijancevic issued a subpoena addressed to the Director, Customer Service of the Roads Corporation of Victoria (VicRoads). On 16 March 2018, VicRoads applied for an order that the subpoena be set aside.
The hearing proceeded before Judge Murphy on 19 March 2018. Mr Marijancevic appeared for himself. At the commencement of the hearing, Mr Marijancevic applied for the judge to excuse himself from hearing the appeal on the ground of apprehended bias. After hearing argument, his Honour rejected that application. He then heard the application by VicRoads to set aside the subpoena, and determined that it should be set aside. On the basis of that ruling, Mr Marijancevic abandoned his appeal. His Honour made orders striking out the appeal and setting aside the subpoena. He also ordered Mr Marijancevic to pay costs of $1,500 to VicRoads.
In this proceeding, Mr Marijancevic seeks judicial review of the orders of the County Court made on 19 March 2018. He asks this Court to quash those orders and to reinstate his appeal to the County Court. The grounds relied upon in his originating motion are that the appeal judge:
(1) wrongly took into account an irrelevant unrelated civil Supreme Court judgment to set aside the subpoena;
(2) did not apply the correct test to set aside the subpoena, which required an assessment of whether it appeared ‘on the cards’ that the documents sought might assist Mr Marijancevic’s case and formed part of a legitimate forensic purpose;
(3) failed to consider that a certificate issued by an authorised officer under s 84 of the Road Safety Act is, in the absence of evidence to the contrary, proof of the matters stated in the certificate;
(4) unfairly hindered Mr Marijancevic, a self-represented and inexperienced litigant, in his attempts to investigate whether there was evidence that contradicted the matters stated in the s 84 certificate;
(5) erred in setting aside the subpoena, including because the Director had certified several s 84 certificates served upon Mr Marijancevic in the past; and
(6) erred in refusing Mr Marijancevic’s application to adjourn the hearing of VicRoads’ application to set aside the subpoena.
Mr Marijancevic also seeks a declaration that the appeal judge’s rejection of his apprehended bias application was invalid.
At the hearing, Mr Marijancevic maintained his argument that the judge should have recused himself for apprehended bias. His grounds for challenging the appeal judge’s decision to set aside the subpoena were consolidated into a single ground, that he did not receive a fair hearing. He argued that the appeal judge did not give him due assistance to overcome the disadvantages he faced as a self-represented litigant.
For the reasons that follow, neither ground is made out. The appeal judge was correct to reject Mr Marijancevic’s bias application. His Honour gave Mr Marijancevic a reasonable opportunity to advance his case as to why the subpoena should not be set aside, and was not obliged to alert Mr Marijancevic to an alternative argument that was not relevant to the application to set aside the subpoena.
Apprehended bias
Where a question arises as to the impartiality of a judge, the governing principle is that the judge is disqualified if ‘a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide’.[1] This is a robust test, which attributes to the fair-minded lay observer knowledge of the relevant circumstances and surrounding context.[2] Relevantly here, the fair minded lay observer is taken to understand that judges must make decisions in accordance with law, and have a duty to act with integrity and impartiality.[3]
[1]Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337, [6] (Gleeson CJ, McHugh, Gummow and Hayne JJ).
[2]Isbester v Knox City Council (2015) 255 CLR 135, [23] (Kiefel, Bell, Keane and Nettle JJ).
[3]Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70, 87–88 (Mason CJ and Brennan J); Helljay Investments Pty Ltd v Deputy Commissioner of Taxation (1999) 74 ALJR 68, [12]; Ronan v ANZ Banking Group Ltd (2000) 2 VR 531, [43] (Ormiston and Batt JJA).
Before the appeal judge, Mr Marijancevic explained the basis of his bias application as follows:
… a few months ago you have my brother before you. John William Henderson and ah I was here to assist him. There was an order placed by you in the court, ah prohibiting members of the public attending the hearing, and I wasn’t allowed in, and I made a complaint to a newly formed committee for hearing complaints against judges. So that’s the position. On that basis, I would ask Your Honour to excuse yourself from hearing this matter.
The judge responded that he was not aware of any complaint, and did not remember the case involving Mr Marijancevic’s brother. He asked for further information. Mr Marijancevic said that it was a shoplifting charge, and that the tipstaff had prevented him from coming into court. The appeal judge tried to frame the question for decision:
The test is whether a reasonably well-informed member of the public would form the view that justice would not be seen to be done. So there’d be a reasonable apprehension that I won’t give you a fair hearing on the basis of the fact that you’d made a complaint about an order that I made in relation to your brother, that I know nothing about, that’s never been brought to my attention. …
There was some discussion about what the order might have been that resulted in Mr Marijancevic being excluded from the courtroom. The judge suggested it might have been an order for witnesses out of court, and pointed out that such an order would not have been directed against Mr Marijancevic, but applied to all witnesses. Mr Marijancevic maintained that the order was for a closed court, a general prohibition on all members of the public. He said that he was confronted with the facts that he was known to be Mr Henderson’s brother and was there to support him. The appeal judge again framed the question for decision:
You’re confronted with these facts, but the question is whether a well-informed member of the community, a fly on the wall, looking at the facts, looking at the situation where — where there’s a case to be heard, and whether that member of the public would think you’re not going to get a fair hearing, on the basis of those matters that you have made a complaint to presumably the judicial complaints commission … who never referred it to me. That I didn’t know about it until you told me. That therefore, that would give rise to a situation where that would mean that I can’t — that the public would think that I can’t give you a fair crack.
Mr Marijancevic queried whether the test was a well-informed member of the public. The appeal judge responded:
Well, it is. It is, he’s not over-suspicious, he’s not under-suspicious. He’s well-informed, he’s informed or she, is informed that the public — that judges, professional judges, they deal with cases on the merits and they try and avoid pre-judging cases and a general order made that witnesses be out of court for whatever reason, that applies to everyone, might sweep up the relatives or brothers of an accused in that particular case.
As it happened, the prosecutor had also appeared in the earlier matter involving Mr Marijancevic’s brother. He advised that the hearing was on 28 June 2017, that there was an order for witnesses out of court, and that the court was not closed. The judge noted that a possible explanation for the lack of response to the complaint was that the Judicial Commission of Victoria did not commence until 1 July 2017. The prosecutor then submitted that the bias application was ‘absolutely groundless, there’s no basis’.
The appeal judge rejected the application, and gave brief oral reasons for that decision:
Yes, well look, I’m against it, Mr Marijancevic, there’s plenty of High Court cases to say that … apprehended bias has got to be looked at very carefully and in the circumstances where … it was a witness out of court order made on [the prosecutor’s] request, and they’re made routinely, that picked you up and that you were refused entry to the court, I don’t accept that a reasonably well-informed community [member] knowing all those circumstances and knowing that you made a complaint to a body that didn’t have any jurisdiction over that particular event because it had occurred before its power came into effect would not form the view that there’s a reasonable apprehension of prejudgment on my part, so on that basis … I reject your application.
Before me, Mr Marijancevic argued that the appeal judge was wrong not to recuse himself in these circumstances. He said it was not to the point that the judge had not previously been aware of the complaint. He submitted that a reasonable apprehension of bias arose in circumstances where a self-represented litigant tells a judge, ‘I’ve had a problem with you on a previous occasion and I considered your conduct to be unsatisfactory’.
I understand the factual basis for Mr Marijancevic’s bias application to have been that, on 28 June 2017, the appeal judge heard a matter involving a charge of shoplifting against Mr Marijancevic’s brother, John Henderson. Mr Marijancevic attended court to support his brother. The tipstaff denied him entry to the court room, because of an order for witnesses out of court. It is not clear why Mr Marijancevic was prevented from entering the court — perhaps there was a misunderstanding about whether he might have been a witness. Mr Henderson did not pursue the matter, but Mr Marijancevic made a complaint to the Judicial Commission of Victoria. The judge was not aware of the complaint until Mr Marijancevic informed him of it at the hearing on 19 March 2018, in the course of making his bias application.
I do not consider that these circumstances could have created a reasonable apprehension of bias in the mind of an informed, fair-minded lay observer. Whether there is a reasonable apprehension of bias is to be assessed, not from Mr Marijancevic’s point of view, but from that of the fair-minded lay observer. That person is taken to know the relevant facts, and to be aware of the judge’s obligation to ‘do equal justice to all persons, and to discharge the duties of office according to law’, to the best of his knowledge and ability, ‘without fear, favour or affection’.[4]
[4]As a judge of the County Court promises to do when taking the oath or affirmation of office.
The judge’s conduct of the hearing involving Mr Henderson on 28 June 2017 was not directed at Mr Marijancevic, and there is nothing to suggest that his Honour was aware that Mr Marijancevic was prevented from entering the courtroom on that day. The judge did not know that Mr Marijancevic had made a complaint, which appears to have been misconceived in any event. The fact that Mr Marijancevic informed the judge that he had made a complaint about him was not, in the circumstances here, enough to give rise to a reasonable apprehension of bias. As mentioned, the test is a robust one. In this case, the fair-minded lay observer can be taken to understand that judges are often confronted by dissatisfied parties, and are not easily offended or angered by them.
The appeal judge was right to reject the application to recuse himself for apprehended bias. This ground is not made out.
Fair hearing
A judge is obliged to ensure a fair hearing for all parties in every case. The fair hearing of a proceeding, whether civil or criminal, is a basic common law right that is now also protected by s 24 of the Charter of Human Rights and Responsibilities Act 2006 (Vic). Different measures may be necessary to give practical effect to that right, depending on the particular circumstances of the case.[5] Where a party is self-represented, a judge must do what is required ‘to give the unrepresented person a reasonable opportunity to advance his/her own case and to be informed of and respond to the opposing case’.[6]
[5]Roberts v Harkness (2018) 57 VR 334, [46]–[47].
[6]Roberts v Harkness, [53].
In determining what is required to provide that opportunity in a given case, the judge will have to assess ‘the capability of the unrepresented person to formulate, and communicate, the case which he/she wishes to present’:[7]
The assessment of capability will typically be based on any written documentation which the litigant has filed and, where there is an oral hearing, on the quality of the litigant’s verbal communication with the Court. Very often, the judicial officer will be able to assess relatively quickly whether, and to what extent, the litigant will need assistance, either from the Court or from a third party, in order for the Court to be able to understand the litigant’s case.
A critical fair hearing question for the judicial officer is whether there is, or may be, an arguable legal point underlying the unrepresented litigant’s arguments but which he/she has not been able to articulate. In those circumstances, in our view, the duty to afford a fair hearing may require the judicial officer to seek to elicit and elucidate the legal point, through exchanges with the litigant.
[7]Roberts v Harkness, [54], [55]–[56].
Mr Marijancevic submitted that, when representing himself at the hearing of the appeal, he was at a ‘grave disadvantage’, because he ‘lacked two critical qualities possessed by competent lawyers: professional skill and ability, and objectivity’.[8] He argued that the appeal judge should have assisted him by identifying, and helping him to articulate, an argument that was available to him in relation to VicRoads’ application to set aside the subpoena. At this point, it is necessary to give some background about earlier litigation between Mr Marijancevic and VicRoads, the subpoena issued by Mr Marijancevic, and VicRoads’ application to set it aside.
[8]Tomasevic v Travaglini (2007) 17 VR 100, [79]. See further [81]–[82].
In 2014, Mr Marijancevic brought two judicial review proceedings in this Court, concerning decisions made by VicRoads in relation to his driver licence. Mr Marijancevic represented himself in both proceedings. The first proceeding, which concerned the validity of a points notice issued by VicRoads, was resolved in Mr Marijancevic’s favour.
The second proceeding arose from VicRoads’ decision of 3 June 2014, to require Mr Marijancevic to undertake and pass a road law knowledge test and practical drive test by 1 July 2014. He did not take either test and, on 6 August 2014, VicRoads suspended his driver licence. Mr Marijancevic challenged the validity of both the tests decision and the suspension decision. One of his grounds of review was that the records kept by VicRoads in relation to his driving and licence history were incorrect.
Ginnane J dismissed the second proceeding.[9] His Honour’s judgment explained the factual dispute behind Mr Marijancevic’s challenge to the tests decision:[10]
The basis of the tests decision was the application of a business [rule] adopted by VicRoads, which was that if a person has not held a licence for a period of 5 years they must pass the tests before a new licence is issued to them.
In this case, a licence was reissued to Mr Marijancevic in February 2014. The Roads Corporation case is that, soon after it was reissued, VicRoads realised that this had been done in error and that Mr Marijancevic should have been required to undertake a driving test. Mr Marijancevic contended that the records kept by VicRoads in respect of his driving history and the issue of a licence are incorrect. He asserts that he obtained a licence in 2012 and also obtained a licence in 2014. VicRoads disputed those assertions and said that no licence was issued in 2012 and that there is no evidence of one being obtained. It said that the issuing of a licence to him in February 2014 was a mistake.
[9]Marijancevic v Roads Corporation of Victoria (2015) 71 MVR 356 (Marijancevic v VicRoads).
[10]Marijancevic v VicRoads, [20]–[21].
That dispute was determined as follows:
I am not persuaded that any evidence establishes that Mr Marijancevic had a licence at any time in at least the 5-year period prior to the mistaken issue of a licence to him, in February 2014. In those circumstances, I am not satisfied that Mr Marijancevic has made out his case.
The document of 27 February 2014 appears to have been in error in a number of respects. I am not persuaded that Mr Marijancevic obtained a licence in 2012 and no copy of any such licence was produced. VicRoads was entitled to require him to undertake the tests under s 27 of the Act.
Ginnane J’s judgment was given on 30 June 2015. Mr Marijancevic’s appeal to the Court of Appeal was dismissed,[11] as was his application for special leave to appeal to the High Court.[12]
[11]Marijancevic v Roads Corporation (Vic) (2016) 77 MVR 109.
[12]Marijancevic v Roads Corporation of Victoria [2016] HCASL 341.
On the hearing of the appeal to the County Court in this case, the prosecution proposed to tender a certificate produced by VicRoads under s 84(1) of the Road Safety Act. Section 84 facilitates proof of the contents of VicRoads’ records, by permitting evidence of those records to be given in the form of a printed document.[13] A s 84 certificate is proof of the matters stated in the certificate, in the absence of evidence to the contrary.
[13]Marijancevic v Ridsdale (2008) 183 A Crim R 574, [31].
The s 84 certificate in this case provided a good deal of information about the status of Mr Marijancevic’s driver licence:
The following matters appear in or can be calculated from the records kept by the Roads Corporation:
Licence cancellation in 2005
1.On 7 September 2005, Joseph Marijancevic’s driver licence (32036635) was cancelled pursuant to an order of the Sunshine Magistrates’ Court. Attachment 1 is a copy of the Magistrates’ Court Order dated 7 September 2005.
2.On appeal, on 18 November 2005 the County Court made a further order that Mr Marijancevic’s driver licence be cancelled. Attachment 2 is a copy of the County Court Order dated 18 November 2005.
Attendance at VicRoads’ Customer Service Centre in 2012
3.On 13 July 2012, Mr Marijancevic attended the VicRoads Customer Service Centre in Sunshine. VicRoads records include a copy of an application form for a licence or learner permit (Licence Application) dated 13 July 2012, signed by Mr Marijancevic and received at Sunshine. The copy of the Licence Application in VicRoads’ records has the word ‘deleted’ written in large letters across the first page. Attachment 3 is a copy of the Licence Application.
4.Also on 13 July 2012, a note entered by a VicRoads staff member on the VicRoads Driver Licensing System (DLS) database in respect of Mr Marijancevic’s licence number (32036635), reads ‘Unlicence for more than 5 years, must undergo for l/drive test.’ Attachment 4 is a screenshot showing that note.
5.At the relevant time, VicRoads had a business rule which stated:
A person who has not held a valid licence within the previous five years due to a ban is required to undergo a knowledge and drive test prior to the re-issue of a Victorian driver licence. There is no requirement for the learner permit card to be issued unless the person wishes to practice driving.
Attachment 5 is a copy of VicRoads’ business rule dated 6 November 2009.
6. Mr Marijancevic was not issued a driver licence in 2012. Rather, VicRoads’ records show that he attended and was turned away because he had not undergone the required tests.
7.Attachment 6 is an extract of the transactions on the DLS database concerning Mr Marijancevic’s driver licence (32036635) between 28 May 2012 and 27 February 2014. The transactions are recorded automatically by the DLS database. The entry on 13 July 2012 reads ‘Reissue Licence/Permit’ – this indicates that an operator has selected the option which commences the process of re-issuing a licence, but does not indicate that a licence has actually been issued. Where a licence is issued, it will be recorded on the DLS database as having been ‘validated’ – see paragraph 8 below.
New licence and suspension in 2014
8.On 27 February 2014, Mr Marijancevic applied for and was issued a driver licence at the VicRoads Customer Service Centre in Sunshine, without having undertaken a further road law knowledge test or a practical drive test. Attachment 6 includes the following entries on that date:
a. at 10:44:29 – ‘Reissue Licence/Permit’ – this commences the process of issuing a licence;
b. at 10:48:10 – ‘Validate Licence/Permit’ – this indicates that the process is complete, and a licence has been issued.
9.On 3 June 2014, VicRoads issued a letter to Mr Marijancevic stating that his driver licence had been reissued, without requiring the tests to be undertaken, as the result of an error, and requiring that he undertake a practical drive test and a road law knowledge test (the Tests Decision) by 1 July 2014. Attachment 7 is a copy of VicRoads’ letter dated 3 June 2014.
10.On 6 August 2014, VicRoads issued a letter to Mr Marijancevic stating that his driver licence (32036635) would be suspended from 10 August 2014, on the basis that he had failed or refused to undertake the road law knowledge test and practical drive test as required (the Suspension Decision). Attachment 8 is a copy of VicRoads’ letter dated 6 August 2014.
11.Mr Marijancevic brought a judicial review proceeding in the Supreme Court to challenge, among other things, the Tests Decision and the Suspension Decision. In the course of that proceeding, Mr Marijancevic argued that he was issued a licence in 2012, and the Test Decision and the Suspension Decision were unlawful.
12.On 30 June 2015, the Supreme Court of Victoria gave judgment in Marijancevic v Roads Corporation [2015] VSC 240.
13.At paragraph [51] of his judgment, Ginnane J dismissed Mr Marijancevic’s challenge to the lawfulness of the Test Decision and the Suspension Decision. Further, Ginnane J stated at [45] and [46]:
45 I am not persuaded that any of the evidence establishes that Mr Marijancevic had a licence at any time in at least the five year period prior to the mistaken issue of a licence to him, in February 2014. In those circumstances, I am not satisfied that Mr Marijancevic has made out his case.
46 The document of 27 February 2014 appears to have been in error in a number of respects. I am not persuaded that Mr Marijancevic obtained a licence in 2012 and no copy of any such licence was produced.
14.Mr Marijancevic subsequently appealed Ginnane J’s decision to the Court of Appeal, again seeking to challenge the validity of the Tests Decision and the Suspension Decision. On 29 July 2016, the Court of Appeal gave judgment in Marijancevic v Roads Corporation [2016] VSCA 181, dismissing Mr Marijancevic’s appeal.
15.Mr Marijancevic applied to the High Court for special leave to appeal, which was refused on 14 December 2016: Marijancevic v Roads Corporation of Victoria [2016] HCASL 341.
Current licence status
16.The only period since 18 November 2005 in which Mr Marijancevic has held a valid driver licence is between 27 February 2014 (when he obtained a new licence) and 10 August 2014 (the date of the Suspension Decision). As noted above, Ginnane J rejected Mr Marijancevic’s claim that he had been granted a licence in 2012.
17. Mr Marijancevic’s driver licence was purportedly subject to a demerit points suspension between 10 April and 9 August 2014, but the demerit points suspension was quashed by the Supreme Court on 30 June 2015.
18. Between 10 August 2014 and 16 June 2017, Mr Marijancevic’s licence remained suspended pursuant to the Suspension Decision, as he has never completed a road law knowledge test or a practical drive test as required by VicRoads pursuant to the Tests Decision. As noted above, his application for judicial review against the Tests Decision and the Suspension Decision was dismissed by the Supreme Court and the Court of Appeal, and leave to appeal was refused by the High Court.
19.Accordingly, Mr Marijancevic’s licence remained suspended on the relevant date of 23 July 2016.
20.On 16 June 2017, Mr Marijancevic’s licence was cancelled by an order of the Sunshine Magistrates’ Court and he was disqualified from obtaining any licence for a period of 16 months (that is, until 15 October 2018). Mr Marijancevic lodged a County Court appeal against the Sunshine Magistrates’ Court decision, which is due to be heard at Melbourne County Court on 12 April 2018.
The certificate also set out a number of other periods during which court orders had suspended Mr Marijancevic’s licence or disqualified him from obtaining a licence.
On 13 March 2018, Mr Marijancevic had a subpoena issued, addressed to G Madeira, Director Customer Service at VicRoads. The subpoena required the Director’s attendance to give evidence on 20 March 2018, and sought production of all documents kept by VicRoads with respect to Mr Marijancevic since 1 January 2004.
VicRoads emailed Mr Marijancevic on 14 March 2018, inviting him to identify the specific documents he sought, and warning him that it would file an application to set aside the subpoena. He did not respond and, on 16 March 2018, VicRoads filed an application to set aside the subpoena on the grounds that it was an abuse of process, was oppressive, and had no legitimate forensic purpose. It served the application on Mr Marijancevic by email on Friday 16 March 2018.
On 19 March 2018, after dealing with the bias application, the judge moved to the hearing of the appeal. The prosecutor advised that the prosecution case was ready, and would rely on oral evidence of the informant and the s 84 certificate. The judge then heard counsel for VicRoads in relation to its application to set aside the subpoena. VicRoads’ primary submission was that the subpoena had no legitimate forensic purpose, because the status of Mr Marijancevic’s licence as at 23 July 2016 had been determined in his 2014 proceedings against VicRoads. VicRoads submitted that Mr Marijancevic was simply seeking to relitigate that issue on the appeal. Counsel handed up copies of Ginnane J’s decision in Marijancevic v VicRoads,[14] and the related decisions of the Court of Appeal and the High Court.
[14](2015) 71 MVR 356.
The appeal judge then asked Mr Marijancevic for his response. He initially sought an adjournment, on the basis that he had only received the application and supporting documents on the previous Thursday and Friday. He submitted that he was self-represented, had not had an opportunity to seek legal advice, and wished to research and argue the merits of the application. He explained that his appeal was based on his arguments that he had a licence, and his alternative defence was honest and reasonable mistake. He said that neither issue could be properly litigated without the subpoenaed documents.
The judge did not adjourn the hearing of the appeal. He explained his reasons:
Well, you didn’t give them much of a chance. You only issued the subpoena itself on the 13th, which is last Tuesday. So they did work pretty fast to put up an application to set it aside, which they served on you on Friday and … so you can’t — if you have subpoenaed a very wide range of material four days before a hearing, you can’t really complain when the receiver of the subpoena does the best they can to respond to it …
On resuming after lunch, his Honour asked Mr Marijancevic why he had subpoenaed the documents from VicRoads:
HIS HONOUR: Mr Marijancevic, what do you think these documents will give you?
MR MARIJANCEVIC: They will provide a series of errors that — about VicRoads keeping of my records and the — it would include documents that will, that would state that I had a license at a particular time when they said I did not.
HIS HONOUR: Which particular time?
MR MARIJANCEVIC: Well I haven’t got the document here, Your Honour, but — what — during the — that’s why I forwarded it. I mean Your Honour could even take a — draw an inference that the very fact that I went to the Supreme Court and the High Court is because I believed I had a license.
HIS HONOUR: That’s right but the trouble is the three judges in three courts who have dealt with it — well certainly Justice — he was a judge, Ginnane then the Court of Appeal they knocked you out. They said that the requirement to — that you have a test before you be relicensed was a valid requirement. So by definition — and also that you didn’t have a license, so it was properly made which meant the base of which it would be made was you didn’t have a license for the previous five years. So therefore all that’s been held against you.
MR MARIJANCEVIC: Yes but I show you, Your Honour, that I did.
After some further discussion, the appeal judge gave his reasons for setting aside the subpoena:
HIS HONOUR: Look, it’s a matter of fact as to whether or not you had a license at a particular time because they’re a licensing body. That’s their role under the Road Safety Act, to give a license. That’s why under s.84 they can give a certificate as to what your license status is.
Then in relation to the previous proceedings the issue was whether or not they were — they had a right to ask you to do a test. That right was premised on whether or not you had a license in the previous five years. The Court of — Justice Ginnane and then the Court of Appeal again has held that that requirement that you do a test before you could continue to drive was a valid requirement.
So they’ve made the finding that you didn't have a license for the previous five years. Therefore on that basis the s.27 requirement that you have a test was held to be valid. So I’m going to set aside the subpoena on the basis that it’s too wide, it’s fishing and it’s of no forensic purpose. So the subpoena is set aside.
MR MARIJANCEVIC: And what about the witness that I called for?
HIS HONOUR: The same. I’m setting aside the witness, the subpoenas both to call the document and to give evidence on the basis of — he’s sworn or the woman’s sworn that he’s of no assistance and it can have no forensic purpose given the findings of the Court of Appeal and the Supreme Court that the s.27 requirement was valid which is prefaced on the previous — on not having a license.
So you’re seeking to, as counsel says, you’re seeking to re-agitate the matters that you’ve run in the Court of Appeal, run before Justice Ginnane [and] in the Court of Appeal. That’s an abuse of process in any event.
MR MARIJANCEVIC: Well in my submission. Your Honour, I’m not seeking to re-litigate.
HIS HONOUR: Well you are seeking to re-litigate because that can be the only purpose upon which you would seek to subpoena that relevant person and subpoena the documents when it’s been held against you. So on that basis I’m setting it aside …
Both defendants accepted that Mr Marijancevic was at a disadvantage during the County Court hearing because he was self-represented. They submitted, however, that while he lacked legal skill and ability, and objectivity, he was an experienced advocate who had represented himself in many proceedings in many courts. They argued that he was able, on this occasion, to formulate and articulate the argument he wished to put in relation to the subpoena. He was able to formulate other fairly sophisticated arguments, including in relation to the bias application.
I accept that submission. Mr Marijancevic was able to identify clearly the forensic purpose for which he had issued the subpoena. He wished to demonstrate, by reference to VicRoads’ records, that he in fact had a valid licence in July 2016. He also wished to argue, in the alternative, a defence of honest and reasonable mistake as to whether he had a valid licence.
More specifically, counsel for Mr Marijancevic submitted that the judge should have assisted Mr Marijancevic by alerting him to the argument that the judgment in Marijancevic v VicRoads, a civil proceeding, was not admissible to prove a fact in issue in the criminal proceeding. This argument was based on s 91 of the Evidence Act 2008 (Vic), which provides that evidence of the decision, or of a finding of fact, in an Australian proceeding is not admissible to prove the existence of a fact that was in issue in that proceeding.
The difficulty with this argument is that there was no attempt by the prosecution to prove the fact in issue — that Mr Marijancevic’s driver licence was suspended on 23 July 2016 — by tendering Ginnane J’s judgment in Marijancevic v VicRoads. It proposed to prove that Mr Marijancevic’s licence was suspended on 23 July 2016 by tendering the s 84 certificate. In the event, Mr Marijancevic abandoned his appeal before the prosecution opened its case.
It was VicRoads — a subpoenaed third party — that sought to rely on the judgment in Marijancevic v VicRoads, in support of its application to have the subpoena set aside as lacking a legitimate forensic purpose, oppressive, and an abuse of process. It was, in my view, entirely appropriate in this context for VicRoads to bring the judgment to the appeal judge’s attention. Section 91 does not prevent reliance on a judgment for a purpose other than proving the existence of a fact in issue.[15]
[15]Ainsworth v Burden [2005] NSWCA 174, [109] (Hunt AJA, Handley and McColl JJA agreeing); Crawley v Vero Insurance Ltd (No 7) [2014] NSWSC 80, [20]–[21].
Mr Marijancevic had unsuccessfully challenged VicRoads’ decision to suspend his licence in this Court, in the Court of Appeal, and in the High Court. The issue had been finally determined in those proceedings. In those circumstances, it was oppressive and an abuse of process — as between Mr Marijancevic and VicRoads — to issue a very broad subpoena, with a view to reopening the issue on the hearing of the appeal.
A judge is only obliged to assist a self-represented person to identify and articulate an arguable legal point that may assist their case.[16] There is no obligation to assist a self-represented person to identify an argument that lacks merit, or is not relevant. In this case, no question of the application of s 91 of the Evidence Act arose in relation to VicRoads’ application to set aside the subpoena.
[16]Roberts v Harkness, [56] — extracted at [22] above.
For completeness, I note that the appeal judge did not have the benefit of any of the medical evidence that was before me in support of an application made by Mr Marijancevic to adjourn the trial.[17] I have carefully reviewed the transcript of the hearing on 19 March 2018, and can find no indication that Mr Marijancevic’s ability to represent himself during that hearing was affected by any medical condition. On the contrary, it is evident that he was able to identify the forensic purpose for which he had issued the subpoena, and relate it to the defences he intended to raise on the hearing of the appeal.
[17]The application was refused, for reasons given on transcript on 31 January 2020.
The fair hearing ground is not made out.
Disposition
The proceeding is dismissed. I will hear the parties on the question of costs.
12
0