Price v Yorkston
[1996] QSC 197
•21 October 1996
IN THE SUPREME COURT
OF QUEENSLAND
Brisbane No 5976 of 1996
Before the Honourable Justice White
[Price v. Yorkston & Anor]
BETWEEN:
RONALD JOHN PRICE
Applicant
AND:
A YORKSTON SM
First Respondent
AND:
MICHAEL FRANCIS BRENNAN
Second RespondentREASONS FOR JUDGMENT - WHITE J
Judgment delivered 21/10/1996
CATCHWORDS: JUDICIAL REVIEW ACT - decisions of Magistrate - reviewable - dismissal pursuant to s.48.
Counsel:Mr CJ Strofield for the second respondent
Mr RJ Price in person
Solicitors:Crown Solicitor for the second respondent
Hearing Date: 2 October 1996
IN THE SUPREME COURT
OF QUEENSLAND
Brisbane No 5976 of 1996
[Price v. Yorkston & Anor]
BETWEEN:
RONALD JOHN PRICE
Applicant
AND:
A YORKSTON SM
First Respondent
AND:
MICHAEL FRANCIS BRENNAN
Second RespondentREASONS FOR JUDGMENT - WHITE J
Judgment delivered 21/10/1996
The applicant, Ronald John Price, has applied for a statutory order of review of certain interlocutory decisions of a magistrate (the first respondent) sitting at Gatton on 25 June 1996. The second respondent has brought a notice of motion that the application be dismissed pursuant to ss.12(b), 13(b) and/or s.48 of the Judicial Review Act 1991.
In essence Mr Price complains that the magistrate concluded that adequate particulars of a charge had been given to him without giving him an opportunity to be heard and decided that the complaint would be heard on 29 August 1996 irrespective of whether Mr Price had obtained all of the documents which he was then seeking on an application made under the Freedom of Information Act 1992.
It is plain that the challenged decision not to order further and better particulars of the charge is not "a decision of an administrative character" and is not "a decision to which this Act applies" within the meaning of ss. 4 and 20 of the Judicial Review Act. It is also unlikely that the further decision to set the matter down for hearing partakes of that character.
Although the prerogative writs of mandamus, prohibition or certiorari are, by s.41(1) of the Judicial Review Act no longer to be issued by the court, nonetheless, the court retains the power to grant relief with the same effect. The process is to be implemented by way of an application for review. If it be appropriate to grant Mr Price relief then it is no impediment that he has applied pursuant to s.20 rather than s.41.
Background
On 2 January 1996 the second defendant, a police sergeant stationed at Gatton swore a complaint before a Justice of the Peace that on 24 October 1995 "Ronald John Price did drive a motor vehicle namely a Chrysler Sedan upon a road namely Left Hand Branch Road Mt Sylvia without reasonable consideration for other persons using that road" contrary to s.17 of the Traffic Act 1949. The appearance date on the summons was extended to 23 April 1996 and the summons was served on Mr Price on 7 April 1996. Mr Price allegedly asked the second respondent for particulars of the complaint that day but he declined to provide them. The following day Mr Price applied under the Freedom of Information Act for documents in the possession of the Queensland Police Service in respect of the incident.
It is, I think, necessary to mention that relations between Mr Price and some of his rural neighbours were and are very strained with complaints to the authorities of attempted murder, assault, threats with gunshots, trespass and perjury. The alleged breach of s.17 occurred on local road and the complainants were the neighbours with whom Mr Price was in conflict, although the complainants' names were not in the summons and there is no suggestion that Mr Price knew that they were the complainants initially. Mr Price maintains that he has been the subject of continuous harassment by the local police since he complained of official corruption in Gatton to the CJC.
Mention on 23 April 1996
The complaint was mentioned before the first respondent at Gatton on 23 April 1996. Mr Price sought particulars. The first respondent indicated that particulars would not be ordered "at this stage" and that a request should be made of the prosecutor. The matter was adjourned for further mention to 28 May 1996. The police prosecutor, Senior Constable Perkins, by letter dated 29 April 1996 responded to Mr Price's request for particulars having indicated orally that he would provide them:"Subsequent to our telephone conversation on 29 April, I have since been advised by the Officer in Charge of Police Prosecutions that it is the policy of this office not to supply written particulars until a full brief of evidence has been received.
A full brief of the evidence is not supplied to this office until the matter is set for trial.
It has been indicated that the matter in which you requested the particulars has been set down for mention on 28 May 1996.
Verbal allegations in relation to this matter can be supplied to your solicitor prior to the next Court date however written particulars can not be supplied until the matter is set for trial."
Mention on 28 May 1996
On 28 May 1996 the matter was mentioned before a different magistrate who ordered that the prosecution provide particulars of the charge and the file was so endorsed. The prosecutor undertook to the court to do so "towards the end of the week". The matter was adjourned for mention on 25 June 1996. By letter dated 31 May 1996 Senior Constable Perkins provided particulars as follows:
"The particulars you requested are as follows:
STATUTE:The Traffic Act
SECTION:17
TIME:At about 2.55pm
DATE:24th October 1996.
It will be alleged that at the above time and date you were driving a motor vehicle, a grey Valiant Charger along the Left Hand Branch Road Mt Sylvia.
It will also be alleged that two other vehicles were driving in the opposite direction to you on this road.
It will be alleged that your vehicle drove directly towards the other two vehicles forcing the drivers to take evasive action to avoid colliding with your vehicle.
It will be alleged that you were driving without due consideration for other road users."
Mention on 25 June 1996
At the mention on 25 June before the first respondent Mr Price complained that he still did not have adequate particulars as ordered on 28 May 1996. He sought to rely on the decision of Hassett v. Pauls Ice Cream and Milk Limited [1966] QD. R. 173. The first respondent indicated that he proposed to set the matter down for hearing and "that will overcome any problems that - administrative problems there are within the Prosecution Corps". The first respondent repeated that he would set the matter down for trial "then you can reapply to the Prosecution Corps for particulars. If they are not supplied well then you can make an application at that point in time". Mr Price read out the letter of 31 May 1996 from Constable Perkins whereupon the first respondent stated that Mr Price had been supplied with particulars. He set a hearing date for 29 August 1996 declining to wait for Mr Price's receipt of documents pursuant to his Freedom of Information Act application but indicated that Mr Price had the ensuing two months to complete those enquiries.
Mr Price complains that the first respondent did not give him a proper opportunity to address the court on the authorities concerning the entitlement of a defendant to a charge to proper particulars, after the first respondent had indicated that he was familiar with all the cases. No argument was invited from the second respondent prosecutor that the particulars already supplied were adequate and Mr Price's attempt to argue the point was brushed aside.
Order of Helman J of 23 August 1996
The application for review was filed on 18 July 1996. On 23 August 1996, by consent, Helman J ordered that further proceedings in the Magistrates Court at Gatton in respect of the complaint against Mr Price which was to be heard on 29 August 1996 be stayed until the application for review was determined or until further order. It was further ordered by consent that the second respondent file and serve the notice of motion to strike out the application if it was going to do so by 20 September 1996.
Appearance in Magistrates Court on 29 August 1996
Unfortunately, neither the Magistrates Court at Gatton nor the police prosecutor was informed that the further hearing of the complaint has been stayed pending resolution of the application for review. The magistrate who had earlier made the order for further and better particulars on 28 May 1996 was ready to hear the complaint on 29 August and the police prosecutor, Senior Constable Eather, was ready to proceed. A discussion concerning better particulars took place before the magistrate. The prosecutor offered to and did copy his brief and gave the statements upon which he proposed to rely to Mr Price. Mr Price maintained before the magistrate that he was entitled to written particulars supporting the complaint and if not proved he would be entitled to have the complaint dismissed. The prosecutor read into the record particulars of the complaint, namely,
"It would be alleged that Mr Price's vehicle drove directly towards the other two vehicles causing the drivers to take evasive action to avoid colliding with his vehicle."
The matter was adjourned to 23 October 1996 for mention.
Entitlement to Particulars
The complaint of driving without due consideration for other road users clearly required particulars to be given if the defendant was to be able to respond to the charge short of an alibi. The unlawful conduct was said to have occurred on 24 October 1995, some five months previously, on the defendant's local road. Mr Price was entitled to adequate particulars when he asked for them on 7 April 1996. The second defendant could not with propriety have sworn out the complaint without evidence to support it. The statements of the principal complainants are dated 24 and 25 October 1995 respectively. The letter from Senior Constable Perkins of 29 April 1996 constituted a refusal to provide particulars. The request was not for the police brief but for particulars of the complaint.
Mr Price relies much upon Hassett v. Pauls Ice Cream and Milk Limited, supra. In that case the applicant defendant sought an order to review a decision of a magistrate in which an amendment of a complaint under the Justices Act 1886 was allowed and in which the magistrate refused to make an order that particulars of certain matters raised in the complaint be delivered. The substance of the complaint was that the applicant despatched for sale adulterated milk contrary to the provisions of the Health Acts 1937. The complainant proposed to rely on s.139 of the Health Acts which provided that it was immaterial if the offence was committed by an agent or employee without authority or contrary to instructions. Douglas J, with whom Wanstall and Gibbs JJ agreed, described s.139 as a harsh section and that the prosecuting authority ought to provide the utmost particularity since the defendant would be unlikely to know anything of the subject matter of the complaint. Expressions such as "utmost particularity" found in Hassett and to which Mr Price appeals must be understood in the light of the reliance upon s.139 of the Health Acts. That Hassett was a "special" case was adverted to by Hart J in Pointing v. Williams [1970] QWN 1 with whom Hanger and Matthews JJ agreed.
Mr Price was entitled to particulars which would appraise him of the case he had to meet. In an ordinary case he would have had adequate particulars from the receipt of the letter dated 31 May 1996. In light of the special circumstances of the past relationship with the complainants he was entitled to know who they were. His approach to his defence would be quite different if the complainants were strangers. The prosecutor it can be inferred from the material would have been aware of the background. Mr Price had all necessary particulars on 29 August 1996 when the prosecutor read the particulars into the record and gave Mr Price the statements in his brief.
Breach of Natural Justice on 25 June 1996
There are many occasions when the efficient but fair dispatch of a court's business cannot permit litigants either in person or represented by a lawyer to take up time with lengthy or irrelevant submissions. Magistrates Courts process a great many matters each day. However, nothing in the transcript before the first respondent on 23 April or 25 June could lead to a conclusion that Mr Price was or was likely to be lengthy, irrelevant or inappropriate in the submissions that he wished to make. On 25 June 1996 once the first respondent became aware of the contents of the letter of 31 May setting out the particulars and was aware that Mr Price wished to make submissions as to their adequacy he ought to have given him an opportunity to be heard. He was denied an opportunity to be heard.
Entitlement to "Discovery"
The other decision of which complaint is made is the alleged failure by the first respondent to adjourn the hearing of the complaint until Mr Price had been provided with documents sought under the Freedom of Information Act. Although he now has the prosecution brief, Mr Price desires access to all material concerning the complaint. The guideline issued by the Director of Public Prosecutions to, inter alia, police prosecutors on 7 November 1995 pursuant to s.11 of the Director of Public Prosecutions Act 1984 provides that
"Where a defendant charged with a criminal or quasi-criminal offence, or his or her solicitor, makes a request that witness statements taken from witnesses or are to be called by the prosecution on the summary hearing before a magistrate be provided to the defence, before the hearing date, that request should be complied with without delay."
It has been alleged that at no time did Mr Price make an application for the police brief and that would appear to be the case as Mr Price does not traverse that allegation although as a lay person he was unlikely to have been aware of that entitlement. Mr Price relies upon the decision of the Full Court of the Victorian Supreme Court in Sobh v. Police Force of Victoria [1994] VR 41 as entitling him to discovery of documents relating to the complaint prior to the hearing. That case concerned the entitlement of the accused to access to documents pursuant to the Victorian Freedom of Information Act held by the police in respect of a criminal charge which had been preferred against him. The court held that there was no exemption from disclosure under the Act in that disclosure would "prejudice the ... proper administration of the law" which would prevent his access to those documents. There is no opposition in this case to Mr Price's receipt of documents sought by him and it is unnecessary to canvass further the issues considered by the Full Court in Sobh.
Should a defendant make an application under the Freedom of Information Act in respect of documents which are relevant to a charge some reasonable opportunity ought to be afforded for the production of the documents in setting a time for the hearing. Mr Price made his application promptly when served with the summons in April 1996. It is not unusual for a court to express firmness when seeking to set a matter down for hearing and particularly when there have been several adjournments. The first respondent made it clear that Mr Price had two months to get any material ready before the hearing. That was not unreasonable and did not deny him any relevant rights which he had. Were it the case that the Police Service was unable to produce certain documents relevant to this complaint prior to the hearing date Mr Price could bring an application for an adjournment on those grounds. A magistrate is required to grant or refuse an application for an adjournment judicially, Kisby v. Jenkins (1898) 23 VLR 648. I would not find that the first respondent's decision or conduct in setting a hearing date involved any relevant error.
Ought the Application for Review be Dismissed
The Justices Act 1886 contains a regime for appeals from decisions of justices. Section 222 can be put to one side, applying as it does to appeals from an order disposing of a complaint, Schneider v. Curtis [1967] Qd. R. 300; Owen v. Cannavan CA 199 of 1994 judgment delivered 4 August 1995 (CA 95/324). As was observed in each of those cases at pp. 306 and 4 respectively s.209 is of wider application. Under that section an applicant for an order to review is required to show either a prima facie case of error or mistake in law or fact or lack of jurisdiction, Bick v. Morelli [1969] QD. R. 94 at p. 99. Section 4 of the Justices Act defines "order" widely to include
"... any order, adjudication, grant or refusal of any application, and any determination of whatsoever kind ... and any refusal ... to entertain any application made to it ..."
This has been held to include orders that are interlocutory in character or relate only to matters of procedure, Burnham v. Solomon [1946] VLR 431 at p. 437. There was no doubt in Hassett's case that the Full Court could review a decision of a magistrate in which he refused to make an order that particulars of certain matters raised in the complaint be delivered. So too in Pointing v. Williams, supra; and see also Schneider v. Curtis, supra, per Gibbs J at p. 304. However in this case the complaint is not a refusal to order particulars but to hear the submissions.
A refusal to hear the other side is an error of law and reviewable. The first respondent made no clear statement that he would not hear submissions or argument by Mr Price but he expressed himself in a forthright way which conveyed the impression that he would not hear further argument on the sufficiency of the particulars supplied.
Section 12 of the Judicial Review Act provides that the court may dismiss an application brought under ss. 20-22 or 43 if adequate provision is made by a law other than the Judicial Review Act pursuant to which the applicant is entitled to seek a review of the matter. Apart from the question whether the decisions in question would fall within the ambit of s.209 of the Justices Act there appears to be no limitation upon the right of Mr Price to bring an order for review pursuant to that Act. In Schneider v. Curtis, supra, Gibbs J observed at p. 304 that in general, the proper course for a magistrate would be to refuse any adjournment sought for the purpose of reviewing a decision on an application made during the course of a hearing of a complaint in a criminal case and before the complaint itself had been fully heard and determined. However these challenged decisions did not occur in the course of a complaint being heard but were purely interlocutory in nature. Section 13 does not appear to be relevant since it allows the court to dismiss an application if the applicant is entitled to seek review of the matter by another court, tribunal, authority or person. The order to review pursuant to s.209 is returnable before the Court of Appeal, a part of the Supreme Court, the Supreme Court of Queensland Act 1991. There are clearly advantages in proceeding pursuant to the Judicial Review Act in many circumstances. If the point is short it may be disposed of in chambers. This is considerably speedier than proceeding to the Court of Appeal and it would more than likely be cheaper.
Section 48 of the Judicial Review Act provides that the court may stay or dismiss an application if the court considers that it would be inappropriate for proceedings to be continued.
It is not necessary for me to decide whether it would be appropriate to dismiss the application pursuant to s.12(b) on the ground that Mr Price could have proceeded according to s.209 because I am of the view that it is appropriate to dismiss the application pursuant to s.48(1). I have concluded that there was no discernible error on the part of the first respondent in setting the matter down for hearing on 29 August 1996. No application for adjournment was made and no basis for it was advanced. It was not put to the magistrate that there was a communication from the Police Service that it could not provide the balance of the documents within time. As to the question of particulars, at least by 29 August 1996 adequate particulars had been supplied to Mr Price. He had a copy of the prosecution's brief of evidence and if his complaint is that there are other documents which may impact upon the hearing of the complaint he has exercised his entitlements under the Freedom of Information Act.
Accordingly the application for review ought to be dismissed.
Costs
The applicant for dismissal seeks costs on the basis that having been supplied with the prosecution's entire brief of evidence he was invited by letter dated 18 September 1996 from the Acting Crown Solicitor to withdraw his application for a statutory order of review. Mr Price declined to do so and has been unsuccessful in maintaining the application. Nonetheless the conduct of the second respondent in refusing to provide particulars and the conduct of the first respondent in not hearing his application in respect of the adequacy of the particulars justified him seeking some relief. It is because the particulars have now been provided together with the statements of the witnesses that the need for the application has been exhausted. Mr Price misunderstood the effect of Sobh's case if he understood it to entitle him to all the documents concerning this complaint held by the Police Service under the guise of particulars. It was not in that circumstance reasonable of him to persist in the hearing on 2 October. I shall confine the costs to the costs incurred at the hearing on 2 October 1996 by the second respondent to be taxed.
The formal orders are:
The application for judicial review be dismissed.
The applicant Ronald John Price pay the second respondent's costs of the hearing on 2 October 1996 to be taxed.
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