Mitchell v Marshall

[2012] TASSC 4

[2012] TASSC 4

COURT:  SUPREME COURT OF TASMANIA

CITATION:              Mitchell v Marshall [2012] TASSC 4

PARTIES:  MITCHELL, Roderick Neil
  v
  MARSHALL, Sue (CONSTABLE) and Others

FILE NO/S:  LCA 728/2011
DELIVERED ON:  1 March 2012
DELIVERED AT:  Hobart
HEARING DATE:  14, 21 November, 9 December 2011
JUDGMENT OF:  Tennent J

CATCHWORDS:

Magistrates – Appeals and review – Tasmania – Motions to review – When remedy available – Review must relate to an "order" – Whether remarks by magistrate during course of directions hearing amount to an order capable of being reviewed.

Justices Act 1959 (Tas), ss3, 107(1), 116.
Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170; Wilson v McCormack [1968] Tas SR 55; Thow v Lowe [1988] TASSC 37; Norton v Lang [1976] Tas SR 40; Cowen v Estcourt [1976] Tas SR 113; Hessleman v Reid [1973] Tas SR 93; Adam Dez Phillips v Sergeant Roger Richardson [1997] TASSC 112, referred to.
Aust Dig Magistrates [270]

REPRESENTATION:

Counsel:
             Applicant:  T G Moloney
             Respondent:  S Nicholson, H Virs
Solicitors:
             Applicant:                     Kempson Lawyers
             Respondent:  Director of Public Prosecutions

Judgment Number:  [2012] TASSC 4
Number of paragraphs:  23

Serial No 4/2012
File No LCA 728/2011

RODERICK NEIL MITCHELL
v CONSTABLE SUE MARSHALL AND OTHERS

REASONS FOR JUDGMENT  TENNENT J

1 March 2012

1. The applicant has been charged on complaint with a number of offences, the majority of which relate to alleged contraventions of the Animal Welfare Act 1993. The complaints were initially laid in 2008. The hearing of the charges commenced before Magistrate Marron on 25 October 2010. His Honour heard evidence over six days in October 2010 and 11 days in November 2010. The hearing was then adjourned, and resumed on 28 March 2011. It continued for the rest of March and then into early April.

1. On 6 April 2011, before the taking of evidence in the matter had been completed, counsel for the applicant sought a ruling as to the nature of the mental element required to be proved by the State. On that day, the learned magistrate received written submissions on the issue from counsel for the applicant, and oral submissions from counsel for both parties. The substantive hearing was then adjourned, but resumed to continue with the taking of evidence. Ultimately on 14 July 2011, the taking of evidence was completed, and the learned magistrate reserved his decision in respect of the hearing generally. He also made directions as to the filing of written submissions. The matter was adjourned for decision to 21 October 2011.

1. On 11 August 2011, his Honour held a directions hearing, apparently at the request of one or both parties, principally about the timetable for the filing of written submissions. In the course of that directions hearing, his Honour said:

"What I would like to do at this point however is to announce a ruling that I've got in relation to the question of the matter in relation to the – well the submissions put to me by both of you about the matter of whether or not the offences under section 7, 8 and 9 of the Animal Welfare Act are strict liability or not. Now that was a matter that was agitated at an earlier time and I want to indicate at this stage that I'm prepared to advise you that I require – I've come to the view that they are a strict liability and the reasoning in relation to that will be part of my decision."

His Honour then adjourned the matter generally for the purpose of having a further directions hearing once closing submissions were filed.

1. On 17 August 2011, the applicant filed a notice to review. In that, he sought a review of "an order" made by his Honour on 11 August 2011, in relation to the various complaints alleging breaches of the Animal Welfare Act. He asserted that the order made by his Honour was that, "Such offences are strict liability offences" and, in making that order, "That the Magistrate erred in law in ruling that such alleged offences were strict liability of offences."

1. A preliminary point was raised by the State in relation to this notice to review which may dispose of it without the need for further hearing. The issue to be determined is whether what the learned magistrate said to the parties in the course of the directions hearing on 11 August 2011 is an order capable of review under the Justices Act 1959 ("the Act"), s107, or indeed otherwise. For the reasons which follow, I have formed the view that it is not.

1. Counsel for the applicant commenced his written submissions by saying that there were two sources of power which enabled this Court to review interlocutory determinations of magistrates. The first was what he said were the "clear provisions" of the Act, in conjunction with the Supreme Court Rules 2000. The second was what he described as the inherent power of this Court to review interlocutory findings and judgments that do not finally determine the rights of the parties. Counsel submitted that the remarks of the learned magistrate were a judgment for the purposes of s107, and therefore subject to review, and that they were also subject to review as an interlocutory finding pursuant to the inherent jurisdiction of this Court.

1. Dealing firstly with the Act, PtXI, deals with motions to review, appeals and similar proceedings. Division 1 deals with motions to review and hearings de novo. Section 107, which is contained in this division, deals with the summary mode of reviewing decisions of justices. Section 107(1) provides:

"A person who is aggrieved by an order of justices may, upon notice in accordance with this section, move the Supreme Court to review that order."

The applicant has filed a notice to review pursuant to this section.

1. The submissions of counsel for the applicant as to just how the words of the learned magistrate should be characterised are confusing. He used the words "order", "judgment", "decision", and "determination" almost interchangeably. It seemed from his submissions he did this to enable him to bring into his arguments various definitions, sections and authorities.

1. The starting point is clearly the words of s107. There, the power to review enables the review of "an order". The word "order" for the purpose of s107 is not defined in the Act. However, in Div 5 of PtXI headed "general provisions", s116 provides:

"In this Part, unless the contrary intention appears, 'order' includes conviction, dismissal of a complaint, determination, and adjudication."

1. Neither the word "decision" nor the word "judgment" appear in either s107 or s116. Counsel for the applicant made reference to the definition of the word "decision" as it appears in the Act, s3. I am unsure what was sought to be achieved by this reference save that it provides that "decision" includes an order or other determination. It seems that counsel for the applicant ultimately characterised what his Honour said as a determination which was, for the purpose of s107, an order, and therefore reviewable.

1. Counsel for the applicant referred to the circumstances in which the words of the learned magistrate were said. He described them as being that the learned magistrate had requested written submissions (it was not clear when this was done), there had been consistent requests from counsel for a determination of the issue, and his Honour's own characterisation of the determination. Counsel submitted these were all consistent with a formal determination of a vital element of the proceedings. He described that element as having greater significance and "being of a substantially different character to those determinations found, historically by this Court, not to move the Court to entertain an appeal of an interlocutory determination".  Counsel appeared in this submission to be confusing a description of the element of the offences being dealt with and the type of determination made.

1. Counsel submitted, relying on remarks of Murphy J in Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170 at 177, that the question of injustice flowing from an order sought to be appealed will generally be a relevant and necessary consideration when a court is considering whether to hear an appeal from an interlocutory order. He then went on to identify what he submitted were the factors relevant to what he said was injustice in this case. He commenced his submissions with a broad statement to the effect that a determination that offences of the type exemplified by the Animal Welfare Act, ss7 – 9, are of strict liability was sufficiently attendant with doubt as to warrant review. Initially, nothing was put to the Court to support this sweeping generalization. Counsel, however, subsequently sought in effect to re-argue the arguments put to the learned magistrate about the characterisation of the offences.

1. Counsel submitted that there was further injustice to the applicant as a consequence of the learned magistrate's remarks because:

·    the applicant was denied the right to have the Crown discharge its full and proper burden and demonstrate it had a case against the applicant;

·    because effectively his Honour's view was wrong, there would need to be, in the event of convictions, a "full appeal" after that. There was also a submission that somehow his Honour's preliminary remarks had the very real potential of preventing a full appeal were there to be findings against the applicant, although it was unclear what was meant by that;

·    there was delay occasioned by this process (which one was not identified); and

·    there would be further and magnified costs in addition to those which the applicant had already borne.

The nature of this application

1. The applicant has sought to review the remarks of the learned magistrate by reference to the Act, s107. For him to utilise that provision, he needs to satisfy the Court that the remarks constituted an order. By reference to s116, this could include a conviction, dismissal of a complaint, determination or adjudication. Quite clearly the remarks were not either a conviction or dismissal of a complaint. It is difficult to characterise them as an order as that term would generally be understood in court proceedings. The question is, did the remarks amount to a determination or adjudication?

1. The proceedings against the applicant have not been completed. At best, therefore, the remarks amount to an interlocutory determination of some description. Chambers J, in Wilson v McCormack [1968] Tas SR 55 at 58, said:

"I am of the opinion, that the definition of 'order' in s116 should be widely, rather than narrowly, construed, and I think it is wide enough to include orders of an interlocutory nature. I do not go so far as to say that it includes all interlocutory orders. The question must be decided on the circumstances of each particular case which arises."

Green CJ accepted that view in Thow v Lowe [1988] TASSC 37. In that case his Honour was dealing with a review of a finding that charges against an accused were found proved. He accepted that was an adjudication, and, as such, reviewable. Other interlocutory rulings have been found to be reviewable, for example, an order refusing or granting an adjournment (Norton v Lang [1976] Tas SR 40).

1. However, other interlocutory rulings have been found not to be reviewable. For example, in Cowen v Estcourt [1976] Tas SR 113, the court determined that a magistrate's ruling that an accused had no case to answer was not reviewable, and in Hessleman v Reid [1973] Tas SR 93, a ruling regarding the admissibility of evidence was found not to be reviewable. Crawford J (as he then was) formed the same view in Adam Dez Phillips v Sergeant Roger Richardson [1997] TASSC 112.

The present case

1. It is necessary to look at the circumstances in the present matter.

1. The hearing before the learned magistrate has occupied, to date, 24 days of evidence and a further day of legal argument. The learned magistrate reserved his decision on the hearing generally on 14 July 2011, with directions as to the filing of written submissions. Anticipating those submissions would be filed within the time frame set out, his Honour adjourned the matter for decision to 21 October 2011. On 11 August 2011, the matter was listed before the learned magistrate for a directions hearing to deal with alterations to the time table. Almost incidentally, his Honour made the remarks about the offences being ones of strict liability. He gave no reasons, and indicated that his reasons for forming that view would form part of his ultimate decision.  He then set out a fresh timetable for the filing of submissions. Had those submissions been filed, it must be assumed his Honour would have in due course delivered his reasons, and determined whether or not the charges against the applicant had been found proved. That process has been put on hold pending the outcome of this review.

1. Given his Honour's remarks, it is reasonable to assume that, had he been able to proceed to a final decision, he would have given reasons for his view about the mental element required for the relevant charges, and determined the case accordingly. If the result were adverse to the applicant, there can be no doubt that, having regard to the applicant's very entrenched position that the learned magistrate's views are wrong, the applicant would then have sought a review of the learned magistrate's decision. There can also be little doubt that one of the grounds of review would have been that the learned magistrate erred in law in finding that the offences were ones of strict liability.

1. What the magistrate appears to have done is formed a view about an issue, and given counsel advance warning of that view, saying that his reasons would form part of his ultimate decision.  No doubt he did so to assist counsel with the framing of their ultimate submissions. The effect of the learned magistrates remarks, given counsel for the applicant had already made significant submissions about the nature of the mental element in the offences, should have been to shorten the final closing submissions to be made. No further step beyond the final submissions would have been required before a final decision of the learned magistrate. Instead, what the applicant has embarked upon in this Court is an uncertain path which has involved three separate hearing dates, and further lengthy submissions. Had he been successful, the matter would have been remitted to the learned magistrate to complete the hearing, with directions as to the mental element to be considered. That process would still have required both parties to make final submissions. In short, the applicant has, rather than minimize the overall cost of these proceedings, magnified them and delayed the proceedings by some months.

1. Leaving aside the circumstances in this matter as I have outlined them, it is clear that counsel for the applicant did not have a thorough understanding of the review process he embarked upon. The Act, s3, has no application to PtXI of the Act. Further, having sought to invoke the jurisdiction of the Court by reference to the Act, s107, he then sought to suggest that the Court otherwise had some inherent power which it could exercise to override an interlocutory determination in a lower court. He made no attempt to explain by what authority he submitted such a power might be used to supplant the provisions of Part XI.

1. For these reasons, I am not satisfied that his Honour's remarks were an adjudication or determination, and, as such, an order capable of review. They were made after the evidence from both parties in the proceedings had been completed, and therefore cannot be said to have interfered with the manner in which the applicant ran his case. They did not finally determine the proceedings. At best, they may have shaped the closing submissions of the parties. The applicant is not precluded, in the event the ultimate decision of the learned magistrate is adverse to him, from seeking to review that decision.

Outcome

1. I have determined that the learned magistrate's remarks did not constitute an order capable of review by reference to the Act, s107. In those circumstances, the notice to review cannot succeed and it is dismissed. Counsel for the respondent has sought costs in the event of that outcome. I will hear from counsel for the applicant as to that application.