Martin v Magistrates' Court of Victoria
[2019] VSC 493
•25 July 2019
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S ECI 2018 03011
| DETECTIVE SERGEANT SEAN VICTOR MARTIN | Plaintiff |
| v | |
| MAGISTRATES' COURT OF VICTORIA | First Defendant |
| and | |
| ANDREW MARCHANT | Second Defendant |
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JUDGE: | FORBES J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 7 June 2019 |
DATE OF JUDGMENT: | 25 July 2019 |
CASE MAY BE CITED AS: | Martin v Magistrates' Court of Victoria & Anor |
MEDIUM NEUTRAL CITATION: | [2019] VSC 493 |
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PRACTICE AND PROCEDURE – Application for extension of time to commence proceeding outside of 60 day period prescribed by O56.02(1) of the Supreme Court (General Civil Procedure) Rules 2015 – Whether special circumstances warrant the grant of extension of time – Special circumstances exist – Extension of time granted.
ADMINISTRATIVE LAW – Application for certiorari quashing orders of Magistrates’ Court imposing conviction and passing sentence beyond jurisdiction – Whether abuse of process or improper purpose bringing proceedings by way of Order 56 where appeal pursuant to s 272 of the Criminal Procedure Act 2009 (Vic) available – Discretionary – certiorari granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr L Brown with Mr C Tran | Victorian Government Solicitor’s Office |
| For the Second Defendant | Mr G Nash QC | Access Law |
HER HONOUR:
This is an application for judicial review under Order 56 of the Supreme Court (General Civil Procedure) Rules 2015.[1] The plaintiff seeks an extension of time pursuant to Order 56.02 and if granted, an order in the nature of certiorari quashing orders made by the Magistrates’ Court on 6 April 2016.
[1]All references to ‘Order 56’ and its subsections in this judgment relate to Order 56 of the Supreme Court (General Civil Procedure) Rules 2015.
The first defendant has formally entered an appearance and notified the Court that it does not intend to take an active part in the proceedings, and will abide by the outcome.[2]
[2]By letter dated 31 January 2018 and filed on 5 February 2019, in accordance with the principles set out in R v Australian Broadcasting Tribunal; Ex parte Hardiman (1980) 144 CLR 13.
Background
The facts underlying the application are not controversial. The plaintiff was the informant who brought criminal charges against the second defendant in the Magistrates’ Court of Victoria. The second defendant pleaded guilty to two offences against s 474.19(1)(a)(iii) of the Criminal Code Act 1995 (Cth) (‘the offences’). On 6 April 2016, a Magistrate at Frankston Magistrates’ Court sentenced the second defendant to a Community Corrections Order (‘CCO’) for a period of 24 months. The second defendant completed his CCO on 5 April 2018. The offences to which he pleaded guilty were Class 2 offences under the Sex Offenders Registration Act 2004 (Vic) (‘the SOR Act’) and as such he became a registerable offender under that Act. The SOR Act provided for a 15 year reporting period.[3] The Magistrate made a further order providing for registration.
[3]In relation to Class 2 offences an eight year period applies to a single offence (s 34(1)(a) of the SOR Act) and a fifteen year period applies to a conviction of two Class 2 offences (s 34(1)(b)(ii) of the SOR Act).
Offences under s 474.19 of the Criminal Code Act1995 (Cth) are indictable offences[4] which carry a maximum penalty of 15 years’ imprisonment. By operation of s 4J of the Crimes Act 1914 (Cth), certain indicatable offences can be heard and determined by a court of summary jurisdiction but this is limited to offences punishable by imprisonment for a period not exceeding 10 years. For indictable offences to be dealt with summarily the consent of the prosecutor and defendant is required. The plaintiff and second defendant before me take no issue that the recording of conviction and sentence by the first defendant for offences carrying a maximum penalty of 15 years was entirely without jurisdiction even though proceeding by consent.
[4]By operation of s 4G Crimes Act 1914 (Cth).
In May 2018 the Commonwealth Director of Public Prosecutions (‘CDPP’) was notified of a breach of the CCO by the second defendant that occurred during the currency of the CCO. As a result of this a prosecutor within the CDPP advised Victoria Police of his view that the Magistrates’ Court had no jurisdiction to convict and sentence the second defendant for the offences. As a result of that information the plaintiff seeks orders quashing the conviction and sentence.
Extension of time to bring the proceeding
A party had 60 days after the date of the Magistrates’ Court conviction and sentencing of the second defendant within which to bring an application for judicial review.[5] This time limit has well and truly expired, and accordingly the plaintiff also seeks an order pursuant to Order 56.02 that the Court grant an extension of time for the commencement of the proceeding. Order 56.02(3) provides:
The Court shall not extend the time fixed by paragraph (1) except in special circumstances.
[5]Order 56.02(1).
The phrase ‘special circumstances’ is deliberately flexible. What might constitute special circumstances was considered in Re Beadle and Director-General of Social Security, where Toohey J said as follows:
An expression such as “special circumstances” is by its very nature incapable of precise or exhaustive definition. The qualifying adjective looks to circumstances that are unusual, uncommon or exceptional. Whether the circumstances answer any of these descriptions must depend upon the context in which they occur. For it is the context which allows one to say that the circumstances in one case are markedly different from the usual run of cases. This is not to say that the circumstances must be unique but they must have a particular quality of unusualness that permits them to be described as special.[6]
[6](1984) 6 ALD1, 3.
As to the factors relevant to a consideration of whether special circumstances arise, Cavanough J in Kocak v Wingfoot Australia Partners Pty Ltd said as follows:
All relevant factors (positive and negative) need to be considered. It is conceivable that a single outstanding feature of a case may contribute enough to make the circumstances as a whole, on balance, special. However, the mere unusualness of a particular feature would not be relevant at all unless the feature tended to support an extension. On the other hand, it is not essential that there be some particular circumstance that is unusual. Circumstances can be combined. An unusually clear or heavy balance of favourable circumstances over unfavourable circumstances may be enough, even if none of the individual circumstances is uncommon or unusual in itself. [7]
[7][2011] VSC 285, [36].
The plaintiff relies on the chronology of events set out in the affidavit of Laura Celeste D’Amico affirmed 21 December 2018. The plaintiff submits that the factors demonstrating special circumstances in this case are as follows:
(a)a strong ground of review that is arguably bound to succeed and accepted by the second defendant at hearing as bound to succeed;
(b)that this Court should not lightly countenance an inferior court exercising jurisdiction in a criminal matter that it did not have authority to exercise;
(c)the reason for delay being that the want of jurisdiction was only brought to the attention of the Victoria Police by the CDPP in August 2018;
(d)the plaintiff accepts that the period of time is lengthy and that having completed a CCO, the second defendant faces a risk of potential prejudice by being exposed to prosecution again in relation to the charges and being registered pursuant to the SOR Act for a further period.
The second defendant swore an affidavit on 29 May 2019 expressing distress by the present proceeding and worry about any future criminal proceeding regarding the charges. He opposes the extension of time on the basis that:
(a)the delay is inordinate and unsatisfactorily explained;
(b)the circumstances arise because of the plaintiff’s failure to list the charges for a committal proceeding;
(c)the second defendant has completed his sentence and is potentially prejudiced by the re-enlivening of the charges against him;
(d)if convicted in the County Court, he will be subject to reporting obligations under the SOR Act for 15 years from the date of that conviction without provision to backdate or take account otherwise of the period of time that he has already been on that register since April 2016.
I consider a number of features of this case are relevant to the exercise of discretion to extend time, and the combination of them do amount to special circumstances. First, both parties and the Magistrate all overlooked the lack of jurisdiction to proceed summarily. Second, the lack of jurisdiction was only brought to the attention of Victoria Police in August 2018 by a third party in response to a potential breach of the sentence by the second defendant. Third, upon obtaining that information, it was communicated to the second defendant by letter dated 23 October 2018 that Victoria Police intended to take steps to remedy the defects in the conviction that was recorded and that it would seek to commit the second defendant for trial in the County Court. This in my view satisfactorily explains the reason for the delay. Fourth, as at April 2019 when the written submissions of the plaintiff were filed in this proceeding, the second defendant had not made his views known to the plaintiff nor to this Court and had not participated in the process despite having been advised of the defect in October 2018 and later served with the Originating Process. Indeed he only participated in this proceeding from 29 May 2019 seeking to preserve orders that are in fact void due to the lack of jurisdiction. Fifth, the plaintiff’s case is more than strongly arguable; it is conceded by the second defendant that the conviction and sentence was without jurisdiction. Sixth, there is a public interest in ensuring that Courts act only within jurisdiction. Whilst there is also a public interest in the finality of litigation, the proper exercise of power by the Court is fundamental to any finality. It is not in the public interest to permit a conviction to stand once it has been brought to the attention of the parties and this Court that it was imposed without any authority to do so.
Therefore I am persuaded to extend time for the making of this application. I do so notwithstanding the fact that granting an extension of time does have the potential to expose the second defendant to some risk of prejudice. I note also that the lack of jurisdiction to impose the sentence also meant that the identified breach of the CCO was not dealt with. Fundamentally however, any potential prejudice flows from the fact that the orders of the Magistrates’ Court lack any force, rather than from any orders made by this Court to quash them.
Should certiorari be granted?
The remedy of certiorari to quash the orders is discretionary. In considering whether to grant certiorari, the utility of the relief sought, the conduct of the plaintiff and the public interest in finality of litigation are relevant matters.[8]
[8]Mann v Medical Practitioners’ Board of Victoria [2004] VSCA 148, [17] (Nettle JA).
The second defendant raises an argument that there is either an abuse of process or an improper purpose by the plaintiff bringing proceedings by way of Order 56 with the result that I should not exercise my discretion. The improper purpose is said to be to secure a further period of the second defendant’s registration as a sex offender. The abuse of process is said to be an attempt to avoid the avenue of appeal provided by statute as set out in s 272 of the Criminal Procedure Act 2009 (Vic) (the ‘Criminal Procedure Act’).
As to abuse of process the second defendant submits that an appeal pursuant to that section has a requirement that, if out of time, the appellant must establish delay due to exceptional circumstances and, further, that any such appeal may only be brought by the Director of Public Prosecutions on behalf of the plaintiff. Secondly, he argues that the purpose of bringing this proceeding is to make the second defendant subject to reporting obligations for a further period of 15 years.
I do not accept the second defendant’s submissions as to an abuse of process or improper purpose in bringing the proceeding by way of Order 56 review. The avenue of an appeal pursuant to s 272 of the Criminal Procedure Act and review by way of Order 56 are both available to a party aggrieved by a decision. The second defendant relies on Tooth & Co Ltd v The Council of the City of Parramatta[9] (‘Tooth & Co’) to argue that discretionary relief should generally not be granted where the legislature has provided a remedy that it appropriate and adequate. In Tooth & Co, mandamus was sought compelling the Council to reconsider the application. This was refused because an appeal lay (and was being prosecuted) seeking reconsideration of the application which was a more appropriate or suitable remedy. Chief Justice Dixon said in refusing to grant mandamus directing the Land and Valuation Court to approve plans:
In the present case the appellant who sought the mandamus was in a position to pursue other remedies which might or might not have resulted in the refusal of the respondent council being overruled. The refusal of the mandamus meant no more than that the particular remedy was denied. It meant that an immediate order was not made commanding the council to reconsider the application. I say "commanding it to reconsider the application" because, having regard to the nature of the case, the alternative relief sought, a writ commanding it forthwith to grant its approval to the applications and its consent to the erection of the building, seems to me to be out of question. But, even if it were possible, it would still mean no more than that there had been a denial of an immediate remedy requiring consent to the building and approval of plans. It is the order which must be considered and the order does not prejudice whatever right the appellants may have or the remedies appointed by statute which remain available.[10]
[9](1955) 97 CLR 492, 498, (‘Tooth & Co’).
[10]Ibid 496–497.
In Tooth & Co, it was considered relevant that an appeal under the statutory provisions was also on foot and proceeding by way of an appeal and was ‘an equally convenient, beneficial, effective and appropriate remedy’. In cases that have applied this principle such as Goodman v Victorian Civil and Administrative Tribunal,[11] the commencement of an appeal prior to the institution of an Order for Review was a relevant factor giving rise to the potential for an abuse of process and the refusal to exercise the discretion. There is no such duplication of proceedings here. Where the complaint is not one going to error in the exercise of jurisdiction but the absence of jurisdiction it is appropriate that a proceeding be commenced by Order to Review rather than by an appeal on a question of law, notwithstanding that an appeal might also be an available avenue.
[11][2011] VSC 35.
There is a proper purpose in quashing a conviction and sentence imposed by a court that lacked jurisdiction to do so. The purported orders of the Magistrates’ Court are in fact no orders at all. This is not a situation where the Court was bound to observe certain matters in the exercise of its jurisdiction and, if it failed to do so, its decision is attended by error and could be set aside as wrong by review or appeal. As Latham CJ said in Parisienne Basket Shoes Pty Ltd v Whyte:
An order made without jurisdiction – as if a court of petty sessions purported to make a decree of divorce – is not an order at all. It is completely void and has no force or effect.…But an order is not rendered void ab initio when it is set aside on appeal as erroneous. The fact that it was erroneous does not show or even suggest that it was made without jurisdiction. Jurisdiction is not merely jurisdiction to decide a question rightly. [12]
[12]59 CLR 369, 375, (‘Parisienne’).
If indeed the orders of the Magistrates’ Court are void ab initio, then, the second defendant is vulnerable to prosecution on the charges not withdrawn. This is not because of any order made by this Court but by the lack of force of the orders of conviction and sentence. There is a public interest in formally recognising the lack of force in the orders to regularise the administration of justice and remove any doubt if and when the County Court deals with the charges.
I do not accept the submission that the Order 56 review constitutes an abuse of process or is brought for an improper purpose.
The plaintiff submits that the avenue of appeal pursuant to s 272 of the Criminal Procedure Act and its availability goes only to the exercise of my discretion and is not a bar to bringing proceedings under Order 56. The second defendant agrees with this analysis.
In Director of Public Prosecutions v Verigos,[13] Nettle J held that a magistrate erred in deciding he had jurisdiction to deal summarily with the charge of aggravated burglary that was before him. It was contended that certiorari should nevertheless be refused because the appellant prosecutor could have appealed pursuant to s 92 of the Magistrates’ Court Act 1989. His Honour rejected this submission on three grounds. First he was not persuaded that there was a right of appeal under s 92 noting that ‘because the Magistrate lacked jurisdiction to proceed with a summary determination of the charges, what he purported to do was a nullity’.[14] Secondly, he was not persuaded that the plaintiff sought to escape appeal time limits by the ‘unmeritorious device of attempting to characterise as application for prerogative relief for jurisdictional error a question of law which should properly be agitated by way of appeal’. [15] Thirdly, the application was concerned only with a question of fundamental jurisdictional error.
[13][2004] VSC 97.
[14]Ibid [38].
[15]Ibid [39].
Here also the single ground of review is one of fundamental jurisdictional error rather than error of law and it is appropriate to seek relief by way of judicial review.
The second defendant argues that the only utility in quashing the decision, even assuming no additional sentence is imposed as a result of the charges being dealt with properly, is the ‘inescapable fact’ that the 15 year minimum period of registration on the SOR Act would begin again. The plaintiff submits that the reporting obligations under SOR Act continue unless the sentence is quashed. In that respect the plaintiff submits that the fact of the sentence regardless of its validity imposes the requirement of registration. The plaintiff relies on WBM v Chief Commissioner of Police[16] (‘WBM’) in support of this argument. WBM was not concerned with the validity of the sentence imposed. The recording of a conviction and sentence made by an inferior court without jurisdiction is a nullity.[17] In those circumstances it is arguable that it does not give rise to a person becoming a registerable offender. In any event, any risk of prejudice to the second defendant that he be on the register pursuant to the SOR Act for longer than otherwise might be required because of any subsequent conviction is a risk, but one that comes from the status of the orders made without jurisdiction rather than one enlivened by the granting of discretionary relief by this court.
[16](2010) 27 VR 469 [487], (‘WBM’).
[17]Parisienne (n 12), 375. However in a superior court of record judicial orders are valid until set aside New South Wales v Kable (2013) 252 CLR 118.
Conclusion
Accordingly, I do grant certiorari to quash the orders of the Magistrates’ Court made on 6 April 2016 which are the subject of this application and remit the matter to the Magistrates’ Court to be dealt with in accordance with law. I will hear the parties on the question of costs.
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