Qube Holdings v Krikas - [2022] VMC 15

IN THE MAGISTRATES’ COURT OF VICTORIA
AT MELBOURNE

Case No. L12373942

QUBE HOLDINGS LIMITED (A.C.N. 149 723 053)	Plaintiff
v
TRENT KRIKAS	Defendant

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MAGISTRATE:	Magistrate J.P. Foster
WHERE HELD:	Melbourne Magistrates’ Court (Online)
DATE OF HEARING:	16 November 2021
DATE OF DECISION:	17 June 2022
CASE MAY BE CITED AS:	Qube Holdings v Krikas
MEDIUM NEUTRAL CITATION:	[2022] VMC 15

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REVIEW FROM DECISION OF JUDICIAL REGISTRAR – s 16K Magistrates Court Act 1989 – r 16 Magistrates’ Court (Judicial Registrars) Rules 2015 – process for an Application for Review.

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APPEARANCES:	COUNSEL	SOLICITORS
For the Plaintiff	Ms A. Mobrici	Wotton + Kearney
For the Defendant	Ms M. Tsikaris	Ligeti Partners

HIS HONOUR:

BACKGROUND

The Plaintiff, by its Amended Complaint, alleged that:
On or around 19 October 2018, the Plaintiff’s vehicle was travelling on or around the Westgate Freeway, Port Melbourne, when multiple chattels attached to the Defendant’s vehicle became dislodged and scattered across the road, causing the collision of three vehicles including the Plaintiff’s vehicle (‘the Collision’).
The particulars of negligence asserted that the Defendant failed to adequately and safely attach chattels to the Defendant’s vehicle and failing to keep chattels from infringing on road users.
The Defendant, by its Amended Defence, pleaded that:
the collision occurred on 18 October 2018. The Defendant admits chattels from the Defendant’s vehicle landed on the roadway but denies the presence of the chattels resulted in the collision. The Defendant states the circumstances of the collision were that the driver of the Plaintiff’s vehicle changed lanes when it was unsafe to do so and failed to allow a sufficient braking distance and collided with the rear of the vehicle immediately in front of the Plaintiff’s vehicle, shunting this vehicle forward and into the rear of the vehicle immediately in front of it.
The Defendant further pleaded that:
The Defendant states the Defendant took all reasonable steps to safely secure the chattels to the Defendant’s vehicle. The Defendant states further if there was any negligence on the part of the Defendant (allegations of which are explicitly denied), the Defendant states it was not a cause of the collision in any event and states the collision was caused by the negligence of the driver of the Plaintiff’s vehicle, Robert McGee.
The relevant particulars of negligence (alleged by the Defendant against the Plaintiff) were that the driver of the Plaintiff’s vehicle:
a.performed a lane change when it was unsafe to do so;
b.failed to maintain a safe braking distance;
c.failed to maintain and exercise reasonable care or any adequate control over the plaintiff's vehicle to avoid a collision;
d.failed to break with due care;
e.failed to heed the presence and proximity of the vehicle immediately in front of the plaintiff's vehicle; and
f.failed to comply with the provisions of the Australia Road Rules and/or regulations made thereunder.
On 29 June 2021, the matter proceeded by way of hearing in the Online Magistrates’ Court at Melbourne before Judicial Registrar Paton, on the sole issue of liability, quantum having been agreed.
Mr Nigel Turner of counsel appeared for the Plaintiff and Mr Howard Friedman of counsel appeared for the Defendant.
The Plaintiff's driver, Mr Robert McGee, gave evidence. So too did Mr Pandzic, the driver of the vehicle immediately in front of Mr McGee which was struck by Mr McGee’s vehicle. The Defendant also gave evidence.
The Judicial Registrar viewed ‘dash-cam’ footage of the circumstances leading up to the collision.
The Judicial Registrar was satisfied from the evidence before her that:-
a.the Defendant was negligent as his load came loose and this caused a hazard to other vehicles on the freeway and an emergency situation behind him;
b.the Defendant created an emergency situation, which she held was clear from the video footage;
c.both the vehicles (a Falcon and a Mercedes) which were in the lane ahead of the Plaintiff were able to brake quickly and come to an immediate stop without hitting other vehicles;
d.Mr McGee said in cross examination that he should have driven at a greater distance behind the Mercedes to be able to avoid colliding with that vehicle in an emergency situation;
e.after viewing the dash cam footage, Mr McGee was disadvantaged in his position on the road as the truck beside him obscured his vision of the items coming across the road until they were in front of him; and
f.the vehicles that were in front of Mr. McGee would have seen the items at an earlier point however he should still have been travelling at a distance that would have allowed him to stop safely in an emergency and on seeing the brake lights of the cars in front of him.
Given these findings, the Judicial Registrar was satisfied that:
a.the Defendant's negligence caused the collision;
b.the Plaintiff’s driver contributed to the collision by not remaining at a sufficiently safe distance behind the vehicles in front of him; and
c.the Plaintiff’s claim ought to be reduced by 30%, being the proportion by which she found that the Plaintiff driver had contributed to the collision.
The Court order reveals that the Defendant was ordered to pay the Plaintiff the sum of:
a.$12,813.47 on the claim;
b.$936.48 interest; and
c.$7,336.40 costs.
By an Application for Review filed on 9 July 2021, supported by an affidavit sworn on 9 July 2021 by the Defendant’s solicitor, the Defendant has sought review pursuant to s 16K of the Magistrates’ Court Act 1989 (‘the Act’).
In short compass, the Defendant is aggrieved that it has been found 70% responsible for an accident which, the Defendant contends, could have been fully avoided by the Plaintiff (as had the two vehicles travelling in front of the Plaintiff).
The grounds upon which the review is sought are as follows:
a.firstly, there was a lack of evidence as to how the Defendant has been negligent;
b.secondly, the Judicial Registrar failed to undertake an analysis, or make a finding, with respect to causation;
c.thirdly, the Plaintiff failed to plead res ipsa loquitur;
d.fourthly, the Judicial Registrar did not give sufficient weight to the failure of the Plaintiff’s driver to keep an appropriate distance behind the car in front;
e.fifthly, the Judicial Registrar did not give sufficient weight to the dash cam footage which showed the vehicle in front of the Plaintiff’s vehicle able to safely stop, prior to being hit in the rear by the plaintiff’s vehicle; and
f.sixthly, the Judicial Registrar did not give sufficient weight to the failure of Mr. McGee to keep a proper look out.
KEY ISSUES
The issues that fall for determination in this application are as follows.
Firstly, what is the process applicable in an Application for Review from a Judicial Registrar to a Magistrate pursuant to s 16K of the Act?
Secondly, what is required of a Magistrate under r 16(4)(a) of the Magistrates’ Court (Judicial Registrars) Rules 2015 (‘the JR Rules’)?
Thirdly, what is to happen if a Magistrate determines to grant leave to review pursuant to r 16(4) of the JR Rules?
Fourthly, having regard to the determination of the first three matters, what are the appropriate orders to dispose of this review application?
FINDINGS
What is the process applicable in an Application for Review from a Judicial Registrar to a Magistrate pursuant to s 16K of the Act?
Section 16K of the Act reads as follows:
16KAppeal from or review of determination of Court constituted by judicial registrar
(1)     The rules may provide for appeals from or reviews of a determination of the Court constituted by a judicial registrar—
(a)whether in respect of—
(i)the hearing and determination of any proceeding (whether criminal or civil); or
(ii)any interlocutory application; and
(b)whether in respect of specified kinds of application or proceeding or generally; and
(c)by specifying whether the procedure is by way of appeal or review or both; and
(d)by specifying the way in which the Court may be constituted for those appeals or reviews.
(2) The powers in subsection (1) are in addition to and do not limit any power to make rules under section 16I.
(3)     Unless the rules otherwise provide, a determination of the Court constituted by a judicial registrar may be appealed from or reviewed—
(a)on application of a party to the proceeding; or
(b)on the Court's own motion.
(4)     If the rules do not provide for an appeal from or a review of a determination of the Court constituted by a judicial registrar, the determination is to be subject to a review or an appeal conducted—
(a)by way of hearing de novo by the Court constituted by a magistrate; and
(b)otherwise in accordance with the rules, if any.
Section 16I of the Act provides that the Chief Magistrate together with two or more Deputy Chief Magistrates may jointly make rules of court for or with respect to:-
a.the prescription of the proceedings which may be dealt with by the Court constituted by a Judicial Registrar;
b.delegation to the judicial registrars all or any of the powers of the Court except certain defined powers; and
c.reviews of, and appeals from, the court constituted by a judicial registrar.
Rule 16 of the JR Rules supplements the operation of s 16K of the Act. It reads as follows:
16Review of determination of Court constituted by judicial registrar
(1) An application under section 16K(3)(a) of the Act for review of a determination of the Court constituted by a judicial registrar must be—
(a)in Form 1; and
(b)accompanied by an affidavit that must state the reasons for the application.
(2)     The application and the affidavit must be filed within 14 days after the day on which the determination was made.
(3)     The Court may extend time under paragraph (2) before or after the time expires, whether or not an application is made before the time expires.
(4)     The application for the review must be determined by the Court—
(a)after consideration of the application and the accompanying affidavit; and
(b)unless the Court otherwise directs, without notice to any person.
The terms of s 16K(4) of the Act articulate the process applicable in the absence of any rules articulating the procedure to be followed.
Therefore, but for the existence of r 16 of the JR Rules, all applications for appeal or review of a decision of a Judicial Registrar would proceed directly to be determined by a Magistrate by way of a de novo hearing.
The purpose of the JR Rules is defined in r 1 is as follows:
Object
The object of these Rules is—
(a)to prescribe proceedings that may be dealt with by the Court constituted by a judicial registrar;
(b)to delegate to judicial registrars some of the powers of the Court; and
(c)to establish a procedure for the review by the Court of a hearing and determination of a proceeding by the Court constituted by a judicial registrar.
Rule 16(4) serves to create a process for the consideration of an application for review, although is silent, in r 16(4)(a), as to what is required of a Magistrate when considering a review application.
In White v Ropata[1] Lansdowne AsJ commented:
The following rule, rule 17, provides that an application for review under r 16 does not operate as a stay of the subject order. Rule 18 provides that there is a stay ‘(i)f the Court directs that the hearing and determination of a proceeding by the Court constituted by a judicial registrar be reviewed’. It is plain that these rules intend a two-stage process - application for review, which may be granted or refused, and, if granted, a review. They are silent as to the permitted grounds for an application for review, and the nature of that review, if granted.[2]
[1] [2017] VSC 518.
[2] [2017] VSC 518, [81].
Whilst r 16(4) serves to create a two stage process for the consideration of an application for review, the JR Rules and Act:
a.are silent as to what is required of a Magistrate when considering a review application;
b.leave open the grounds upon which an application for review can be sought; and
c.do not expressly address the manner this review is to take, if leave to review is granted.
What is required of a Magistrate under r 16(4)(a) of the JR Rules?
Re Greco[3] provides recent observation and commentary in the process of consideration undertaken by a Magistrate pursuant to r 16(4)(a).
[3] [2018] VSC 175 (‘Re Greco’).
In that case, Mr Greco was served with 61 infringement notices issued pursuant to the Infringements Act 2006 by Victoria Police, Melbourne City Council, City of Stonnington and Traffic Camera Office in relation to offences those agencies alleged occurred between October 2012 and July 2014.
Mr Greco’s application to an infringements registrar to revoke the enforcement orders was refused and his revocation application was then referred to the Magistrates’ Court. That application was heard by Judicial Registrar Bartlett and was refused.
Mr Greco’s application for review of the decision of Judicial Registrar Bartlett was refused by Magistrate King on 28 October 2016.
In the proceedings before the Supreme Court, Mr Greco applied pursuant to O 56 of the Supreme Court (General Civil Procedure) Rules 2015 for review of the order made by Magistrate King.
Keogh J recounted the procedural history, including the process of consideration of the application for review undertaken by the learned Magistrate, pursuant to r 16(4)(a):
The application for review was determined by Magistrate King on 28 October 2016. It is convenient to set out Magistrate King’s reasons for refusing the application to review:
This is an application for a review of a decision of a Judicial Registrar.
Mr Greco argued that he had been denied procedural fairness. In so far [sic] as that argument may be said to apply to the proceedings before the learned Judicial Registrar, I cannot agree. I have listened carefully to the proceedings before the Judicial Registrar. The Judicial Registrar gave Mr Greco every opportunity to present his arguments in support of his appeal and to respond to those put by the opposing parties.
In so far [sic] as the argument relates to him being denied procedural fairness by being unable to have his day in court in relation to the original offences giving rise to the infringement notices, it was put to the Judicial Registrar and was unchallenged that the infringement notices had been properly served. Pursuant to s 16 of the [Infringements Act 2006 (Vic)] Mr Greco had the opportunity to seek to have the matter dealt with in court. Infringement notices clearly state that option. It was not that Mr Greco was denied procedural fairness; it was simply that by neglect he elected not to pursue it.
No satisfactory reason was given by Mr Greco to the learned Judicial Registrar that would provide grounds for referring each of the offences for trial by the court. Being busy at work and relying on the efforts of others and having financial challenges as put by Mr Greco was insufficient to disturb the registrar’s decision.
There is no arguable case in relation to the constitutional arguments put by Mr Greco.
There is no basis for disturbing the Judicial Registrar’s decision.
The application will be refused.[4]
[4] Re Greco, [16].
Mr Greco’s application to the Supreme Court contended as grounds for review that Magistrate King fell into jurisdictional error, by failing to take into account the Charter, and was not operating in a judicial capacity when assessing the review application, thereby being required to take the Charter into account.
In dismissing the review grounds as without merit, Keogh J made a number of observations on the process of review conducted by Magistrate King:
First, it was within jurisdiction for Magistrate King to consider the hearing before Judicial Registrar Bartlett. Magistrate King was required by r 16(4)(a) of the Judicial Registrars Rules to consider Mr Greco’s application and accompanying affidavit. The Judicial Registrars Rules do not otherwise restrict the matters to which Magistrate King could properly have regard when determining the application. The application by Mr Greco was ‘for review of the hearing and determination of this proceeding constituted by [Judicial Registrar] Bartlett … ’. In large part, Mr Greco’s complaint in the application was that he had not been accorded procedural fairness in the hearing before Judicial Registrar Bartlett. But by considering the hearing before Judicial Registrar Bartlett, Magistrate King was responding directly to the form and substance of the application to him by Mr Greco.
Second, I would not infer there was any failure on the part of Magistrate King to have regard to relevant considerations when determining Mr Greco’s application.
…
[T]he real thrust of the arguments for revocation of the enforcement orders made by Mr Greco to Judicial Registrar Bartlett and Magistrate King was that he had been denied the opportunity to contest the infringement offences in court. In that context, after having regard to the material Mr Greco placed before him and to the hearing before Judicial Registrar Bartlett, Magistrate King concluded Mr Greco had not been denied the opportunity to have the infringement offences heard in court, but by neglect had elected not to pursue that opportunity. Magistrate King held that no satisfactory reason was given by Mr Greco which would justify revocation of the enforcement orders and referral of the infringement offences for trial by court. There was nothing in the decisions of Judicial Registrar Bartlett or Magistrate King to suggest that either doubted Mr Greco’s evidence in relation to his correspondence and interactions with the enforcement agencies. Rather, Magistrate King’s reasons are consistent with him concluding that corresponding with the enforcement agencies was not a satisfactory reason to explain the failure to make an election pursuant to s 16 of the Act, and did not justify revocation of the enforcement orders.
Third, it was a matter for Magistrate King to identify the relevant issues in the application before him, to formulate questions to be answered on the application, and to determine what evidence was relevant to those questions. If there was a mistake by Magistrate King in failing to call for and to consider the correspondence in respect of which Mr Greco gave evidence, I would regard that as a failure within jurisdiction which does not give rise to jurisdictional error.
Fourth, there is no merit in Mr Greco’s argument that he was denied procedural fairness. Mr Greco took the opportunity to provide affidavit evidence and written submissions in support of his application to Magistrate King. Rule 16 of the Judicial Registrars Rules contemplates as the default position determination of an application for review by the court without a hearing. Whether or not procedural fairness was accorded to Mr Greco must be determined by reference to the provisions which governed the application he was making. Mr Greco’s application for review was determined in accordance with r 16, and there was no failure by Magistrate King to accord him procedural fairness.[5]
[5] Re Greco, [37]-[40].
Like Lansdowne AsJ in White v Ropata,[6] Keogh J observed that r 16(4)(a) of the JR Rules leaves open the matters which may be taken into account in ‘consideration’ of an application for review.
[6] [2017] VSC 518.

According to Keogh J, a Magistrate considering a review application must approach the task according to the ‘form and substance’ of the particular application.[7]
[7] Re Greco, [37].
Magistrate King was found to have correctly identified ‘the relevant issues in the application before him, to formulate questions to be answered on the application, and to determine what evidence was relevant to those questions.’[8]
[8] Ibid, [39].
No consideration required because automatic right to de novo hearing?
Counsel for the Defendant submitted before me, that in fact no consideration of the application for review was required because an automatic right of appeal to a de novo hearing existed.
The argument put, in essence, was that:
a.Rule 16 is silent as to appeals.
b.So far as r 16 prescribes that a review requires a form and affidavit to be considered first, that process will only apply to reviews.
c.The rules must have intended to differentiate between an appeal and review.
d.It follows then that an appeal would be conducted by way of an as-of-right de novo hearing.
e.The Defendant should be permitted, as-of-right, to proceed to a hearing de novo before a Magistrate pursuant to its right of appeal provided for in s 16K(4) of the Act.
The JR Rules are indeed silent as to ‘appeals’ and only deal with applications for ‘review’.
The contention put by the Defendant, if accepted, would lead to a position whereby there would be a divergence between:
a.a review, which is conducted in a two-stage process; and
b.an appeal, which is conducted by de novo hearing at first instance.
Why, it might be asked, rhetorically, would any party proceed with the Application for Review process in circumstances where that same party has an automatic right to appeal to proceed with a de novo hearing on any matter that was previously determined adversely by a Judicial Registrar.
Of course, no party would seek such an Application for Review in such circumstances.
In which case, what would be the purpose of the JR Rules, which would be rendered meaningless?
It is also incongruous that an Application for Review must be brought within 14 days after the day on which the determination was made by a Judicial Registrar,[9] whereas there would be no time limitation whatsoever in respect of an appeal allegedly still permitted under s 16K(4) of the Act. This cannot be what was intended when the JR Rules were made.
[9] Magistrates’ Court (Judicial Registrars) Rules 2015, r 16(2).
In my view, adopting an interpretation consistent with the objectives of the JR Rules, the words ‘If the rules do not provide for an appeal from or a review of a determination of the Court constituted by a judicial registrar …’[10] must mean that the default position under s 16K(4) (i.e. an automatic right of de novo hearing) does not apply where the JR Rules provide for either a review process or an appeal process.
[10] Magistrates’ Court Act 1989, s 16K(4).
To put it another way, if either a review process or an appeal process is provided for in the JR Rules, then s 16K(4) of the Act has no further work to do.
Accordingly, as the JR Rules do provide for a review process, I reject the Defendant’s submission that the Defendant retains an appeal right with an automatic right to a de novo hearing.
What is to happen if a Magistrate determines to grant leave to review pursuant to reg 16(4) of the JR Rules?
The JR Rules are silent as to the process that takes place following any grant of leave to review.
To reiterate what was said by Lansdowne AsJ in White v Ropata:[11]
It is plain that these rules intend a two stage process - application for review, which may be granted or refused, and, if granted, a review. They are silent as to the permitted grounds for an application for review, and the nature of that review, if granted.[12]
[11] [2017] VSC 518.
[12] Ibid, [81].
The practice of the civil jurisdiction of this Court, is that a de novo hearing takes place following any grant of leave to review.
For the reasons which I set out below, I consider this approach to be erroneous.
The JR Rules do not seek to distinguish between reviews of the decisions of Judicial Registrars in the criminal or civil jurisdictions of this court.
Therefore, the process that takes place following any grant of leave to review, must apply equally to the criminal and civil jurisdictions of this court.
So, for example, the review provisions of the JR Rules would apply equally to situations where:
a.a defendant seeks to review the decision of a Judicial Registrar who grants judgment in favour of a plaintiff, in a motor vehicle quantum and liability dispute, after a hotly contested and lengthy civil hearing; or
b.an accused seeks to review the decision of a Judicial Registrar who hands down a substantial fine following the entry of a guilty plea in a criminal proceeding; or
c.a police informant seeks to review the decision of a Judicial Registrar who acquits an accused following the conclusion of a contested criminal proceeding. [13]
Reviews from a Judicial Registrar in Criminal Matters
[13]For police informants are a ‘party to the proceeding’ for the purposes of s 16K(3)(a) of the Act. See DPP v Bryar [2014] VSC 224 [67]-[70].
The JR Rules arguably permit a situation whereby an accused, having secured an acquittal before a Judicial Registrar, must secure another acquittal before a Magistrate on a hearing de-novo.
The decision of Rush J in DPP v Bryar[14] (‘Bryar’) dealt with just such matter.
[14] [2014] VSC 224.
The reasons reveal that on 2 April 2011, Mr. Bryar was intercepted by the police informant while riding a motorcycle on Plenty Road, South Morang. Mr. Bryar’s speed was detected at 94kph. It was alleged that Mr. Bryar was travelling through a roadworks area with a displayed speed zone of 40kph.
A contested hearing before Judicial Registrar Mithen[15] was conducted at the Heidelberg Magistrates’ Court which concluded on 6 December 2012. The Judicial Registrar determined he could not be satisfied beyond reasonable doubt the speed signage displayed in the roadworks area complied with the management plan for the roadworks. The Judicial Registrar found the first respondent was not guilty of travelling at 94kph in a 40kph zone, but was guilty of travelling 94kph in a 80kph zone (being the maximum speed on that part of Plenty Road). No conviction was recorded. The First Respondent was ordered to pay a fine of $244, and costs were awarded against the Chief Commissioner of Police in the sum of $8,055.
[15] As he then was.
The police prosecutor at the hearing before the Judicial Registrar, Senior Constable Bradley Beale, pursuant to s 16K of the Act, lodged a request for review of the hearing and determination of the Judicial Registrar, supported by affidavit material, on 21 December 2012. The request for review was lodged one day outside the 14-day time limit allowed for by r 5(3) of the Magistrates’ Court (Judicial Registrars) Rules2005 (‘the former JR Rules’).
On 3 January 2013, Magistrate Wighton granted the application for review.[16] The certified extract of the Magistrate’s order did not record an order for an extension of time for making the application. The application was granted by the Magistrate in chambers.
[16] No reasons are specified as to why such review was permitted.
On 17 April 2013, the matter came on for re-hearing before Magistrate Pithouse who accepted a plea of autrefois convict (or double jeopardy). The stay previously made concerning the orders of the Judicial Registrar was revoked and the Chief Commissioner of Police was ordered to pay costs in the amount of $6,600.
Following an appeal to the Supreme Court (against the decision of the Magistrate to accept the special plea of autrefois convict), Rush J determined that it was ‘not disputed that s.16K provides for de novo review’[17] and, after considering the authorities, further determined that:
the intent of the legislature in enacting s 16K of the Act was to provide all parties, including a police informant, with a right of appeal by way of a hearing de novo before a magistrate from a proceeding determined by a judicial registrar. In my opinion, the words of s 16K of the Act establish such a right “distinctly”.[18]
[17] DPP v Bryar [2014] VSC 224, [7].
[18] Ibid, [29].
At the time of the decision in Bryar, section 16K of the Magistrates’ Court Act1989 read as follows:
(1)The Court constituted by a magistrate may direct that the hearing and determination of a proceeding by the Court constituted by a judicial registrar be reviewed by the Court constituted by a magistrate.
(2) A direction may be given under subsection (1) at the request of a party to the proceeding or by the Court of its own motion.
(3)A review under this section is to be conducted as a hearing de novo.
At the time of the decision in Bryar, r 5 of the former JR Rules read as follows:
(1)A request under section 16K of the Magistrates’ Court Act 1989 for the review of the hearing and determination of a proceeding by the Court constituted by a judicial registrar must be in Form 1.
(2)The request must be accompanied by an affidavit that must state the reasons for the request.
(3)The request and the affidavit must be filed within 14 days after the day on which the order was made.
(4)The Court may extend time under paragraph (3) before or after the time expires, whether or not a request for the review is made before the time expires.
(5)The request for the review must be determined by the Court –
(a) after consideration of the request and the accompanying affidavit; and
(b) unless the Court otherwise directs, without notice to any person.
Section 16K of the Act was substituted by section 95 of Act no. 62/2014.
Rule 5 of the former JR Rules was revoked on 14 December 2015,[19] and Rule 16 of the JR Rules came into effect on the same day.[20]
[19] The Magistrates' Court (Judicial Registrars) Rules 2015, r 4.
[20]The Magistrates' Court (Judicial Registrars) Rules 2015, S.R. No. 154/2015 were made on 11 December 2015 by the Chief Magistrate together with 2 Deputy Chief Magistrates jointly under sections 16 and 16I of the Magistrates' Court Act 1989, No. 51/1989 and came into operation on 14 December 2015: rule 3.
It is evident that the legislative framework now in existence concerning reviews from the decisions of Judicial Registrars is substantially different from that which existed when Bryar was decided.
Accordingly, a careful review of the authorities considered by Rush J in coming to his decision in Bryar is required to determine whether Bryar should be followed, or distinguished.
Extracts of Rush J’s reasoning in Bryar is out below:

[15] In Harris v Caladine, the High Court considered s 37A(1) of the Family Law Act1975 which empowered judges of that Court to make rules delegating to registrars certain powers of the Court. Order 36A, r 7(4) provided that: “A court reviewing an exercise of power by a … registrar shall proceed by way of a hearing de novo but may have regard to the proceedings, including the evidence given [before the registrar]”. In considering the permissibility of such delegation, Mason CJ and Deane J stated:

It seems to us that, so long as two conditions are observed, the delegation of some part of the jurisdiction, powers and functions of the Family Court as a federal court to its officers is permissible and consistent with the control and supervision of the Family Court’s jurisdiction by its judges. The first condition is that the delegation must not be to an extent where it can no longer properly be said that, as a practical as well as a theoretical matter, the judges constitute the court. This means that the judges must continue to bear the major responsibility for the exercise of judicial power at least in relation to the more important aspects of contested matters. The second condition is that the delegation must not be inconsistent with the obligation of a court to act judicially and that the decisions of the officers of the court in the exercise of their delegated jurisdiction, powers and functions must be subject to review or appeal by a judge or judges of the court. For present purposes it is sufficient for us to say that, if the exercise of delegated jurisdiction, powers and functions by a court officer is subject to review or appeal by a judge or judges of the court on questions of both fact and law, we consider that delegation will be valid. Certainly, if the review is by way of hearing de novo, the delegation will be valid.

[16] McHugh J stated that delegation could occur:

…provided that the exercise of the power is subject to review by way of a de novo hearing by a justice or judge of that court … . Nor, in my opinion, will anything less than a hearing de novo to review the exercise of the power by the officer be sufficient. That is to say, appellate review is an insufficient condition of the delegation of the exercise of the power; there must be a complete rehearing of the facts and the law as they exist when the Justice or judge reviews the order made by the officer. Otherwise, the officer and not the Justices or judges of the court would be exercising the original jurisdiction of the court.

[17] Mr Young referred me to the Minister’s Second Reading Speech of 21 April 2005 concerning the Magistrates’ Court (Judicial Registrars and Court Rules) Bill where the then Attorney-General, Mr Hulls, made specific reference to the two conditions referred to (in the judgment of Mason CJ and Deane J in Harris) being incorporated into the provisions of the Bill.

[18] Thus, so the appellant contends, nothing in the principles enunciated by the Court in Harris and nothing in s 16K of the Act can be seen as limiting the right of review to one party, in this case, limiting the right of review to an accused and denying such right to the police informant; indeed, to limit review in such a way, said Mr Young, would be inconsistent with the principles of Harris.

[19] Mr O.P. Holdenson QC for the first respondent submitted that the appeal should fail for a number of reasons:

(a) the appellant’s contended construction of s 16K of the Act offends the common law principle against double jeopardy;

…

[20] Mr Holdenson submitted that the words “a party” in s 16K(2) of the Act do not include a police informant to an unsuccessful prosecution. To construe the section in such a way, it was contended, would breach common law double jeopardy rules and the ability of an accused to plead the special “plea in bar”.

[21] Mr Holdenson said the abrogation of a fundamental common law principle, the rule against double jeopardy, can only be undertaken by statute expressly or by necessary implication and not by general words. This could not happen “without [the legislature] expressing itself with irresistible clearness”. Further, “to give any such effect to general words simply because they have that meaning in their widest, or usual, or natural sense, would be to give them a meaning in which they were not really used”.

[22] In Thompson v Mastertouch TV Service Pty Ltd, Deane J (with Smithers and Riley JJ in agreement) dealt with provisions of the Federal Court of Australia Act1976 conferring jurisdiction on the Court to hear appeals. The Court held that:

(a) the general words of the relevant sections concerning provision of jurisdiction to hear appeals from judgments of the Court constituted by a single judge;
(b) to, in the exercise of its appellate jurisdiction, affirm, reverse or vary the judgment appealed from or set aside the verdict and judgment in a trial on indictment and order a verdict of not guilty or other appropriate verdict with other general words,

could not be construed as removing, altering or modifying fundamental common law rights. Deane J stated:

I consider that the conclusion is unavoidable that the general words used in s 24(1)(a) and (b) to confer jurisdiction ‘to hear and determine appeals’ do not confer jurisdiction to hear and determine appeals in circumstances where the existence of the jurisdiction and the right to invoke it would be contrary to a fundamental principle relating to the circumstances in which an appeal should exist. The right of the subject which finds expression in that principle, namely, the right to be spared the jeopardy of an appeal from an acquittal after a hearing on the merits of a criminal charge by a court of competent jurisdiction, is not, upon proper principles of statutory interpretation, to be swept aside by the general terms of a statute which has no underlying policy requiring that such terms be given such an effect and which contains nothing that points clearly or unmistakably or, indeed, at all, to that effect as having been either contemplated or intended.

[23] The appellant contends there is a history of the principle relating to double jeopardy in matters of summary jurisdiction being set aside. In Davern v Messel, (‘Davern’) Gibbs CJ (with Wilson and Dawson JJ in agreement) observed:

A decision of a court of summary jurisdiction discharging a complaint or information has never been regarded with the same sanctity as a verdict of a jury. The consistent trend of legislation, both in England and Australia, has been towards allowing the prosecution to appeal against an order of the magistrate or justices dismissing a charge and empowering the court on appeal to quash the order and to direct the defendant to be convicted … . It is apparent that it is no longer exceptional, or thought to be contrary to public policy, in Australia, to allow an appeal from an acquittal by a magistrate or justices.

[24] After review of numerous authorities, Mason and Brennan JJ in Davern stated:

The Australian cases indicate that our courts have readily perceived indications of statutory intention to confer a right of appeal on a prosecutor from an acquittal in summary proceedings. There has been less reluctance to concede a right of appeal from an acquittal in summary proceedings than from an acquittal on indictment, for the very good reason that a jury verdict of not guilty has been traditionally regarded as inviolate.

[25] While the judgments in Davern, recognised a legislative trend to confer a right of appeal on the prosecution in summary proceedings, the judgments also affirmed the rule against double jeopardy and that in considering legislation “no statute will be construed as abrogating a fundamental principle of the common law unless an intention to do so is clearly expressed”. The words of the statute “must be clear, express, and free from ambiguity”.

[26] In Director of Public Prosecutions v Garde-Wilson, Bongiorno AJA (with Maxwell P and Ashley JA in agreement) considered s 17(2) of the Supreme Court Act1986, which provided that “unless otherwise expressly provided by this or any other Act, an appeal lies to the Court of Appeal from any determination of the Trial Division constituted by a judge”. Garde-Wilson was convicted of contempt of court and no further penalty was imposed by the trial judge. The DPP appealed, alleging inadequacy in the penalty imposed. The appeal was dismissed. Bongiorno AJA stated that a Crown right of appeal against sentence or acquittal is contrary to fundamental principle. His Honour referred to Thompson and Davern, and concluded:

The court considered that the clearest possible terminology would be required to confer such a right. Similarly with respect to appeals against sentence, the High Court has repeatedly held that a specifically conferred power is required [citations omitted]. Express authorisation of such an appeal by the legislature is required to displace the general presumption against the Crown enjoying a right of appeal even in respect of sentence.

[27] At face value, the words of s 17(2) of the Supreme Court Act might be thought to be explicit “… an appeal lies to the Court of Appeal from any determination of the Trial Division constituted by a judge”. However, underscoring the importance of precise words of legislation to remove rights, Bongiorno AJA considered the words of s 17(2) of the Supreme Court Act were “very general”. He stated that to construe what he described as:

The very general right of appeal conferred by s 17(2) upon a person affected by a determination of the Trial Division of the Supreme Court as extending to the Crown in respect of a sentence imposed by the court in a contempt case would radically alter the general law to the detriment of the subject. To achieve such a result the legislature would have needed to use specific language directed specifically to an extension of the Crown’s right to appeal in a criminal case to a case such as the present. It not having done so, notwithstanding the general words of s 17(2), it follows that the Crown has no right of appeal in this case.

[28] Whether the proceeding be indictable or summary, the words of a statute conferring a right of prosecution appeal against acquittal (or conviction) must be clear and unambiguous. Gibbs CJ made this point unequivocally in Davern:

Notwithstanding these decisions, there is in my question no sufficient reason to question the rule, laid down in Benson v Northern Ireland Road Transport Board, that a statute will not be understood to confer a right of appeal from a decision dismissing a criminal charge unless it does so distinctly. It is a rule to which it may be assumed the parliamentary draftsmen have had regard in framing legislation enacted since that time.

[29] In the particular circumstances of the legislative provision I am required to consider in this appeal, I am of the opinion that the intent of the legislature in enacting s 16K of the Act was to provide all parties, including a police informant, with a right of appeal by way of a hearing de novo before a magistrate from a proceeding determined by a judicial registrar. In my opinion, the words of s 16K of the Act establish such a right “distinctly”.[21]

Conclusion
[21] DPP v Bryar [2014] VSC 224, [15]-[29], (citations omitted).

The former iteration of s 16K of the Act, in the words of Rush J, distinctly established that a police informant had a right of appeal by way of a hearing de novo before a Magistrate (from a proceeding determined by a Judicial Registrar).
It cannot be said that s 16K(4) of the Act as it now exists, when read together with r 16 of the JR Rules, distinctly establishes such a right, having regard to what was said by Lansdowne AsJ in White v Ropata[22] namely, that the JR Rules ‘are silent’ as to the nature of the review, if granted.
[22] [2017] VSC 518.
Counsel for the Plaintiff was quite right to say, in written submissions filed with this Court, that:
There is some ambiguity on the face of the Magistrates’ Court Act and the Judicial Registrar Rules whether the correct principles should be those applicable to an appeal, those applicable to judicial review or any other principles.[23]
[23] Plaintiff’s written submissions (11 November 2021) paragraph 19.
Section 16K of the Act, when read together with r 16 of the JR Rules, is not ‘clear and unambiguous’.
That being the case, I consider myself bound by what was said by Bongiorno AJA in DPPv Garde-Wilson[24], namely that:
a.a Crown right of appeal against sentence or acquittal is contrary to fundamental principle;
b.the clearest possible terminology would be required to confer such a right; and
c.(with respect to appeals against sentence) express authorisation of such an appeal by the legislature is required to displace the general presumption against the Crown enjoying a right of appeal even in respect of sentence. [25]
[24] (2006) 15 VR 640.
[25]Director of Public Prosecutions v Garde-Wilson (2006) 15 VR 640 at 647, [24].
In my view, based on the present unclear wording of the Act and the JR Rules, police informants do not have a right of appeal for a de novo hearing against sentence or acquittal which is otherwise contrary to fundamental principle.
That being the case, and in order to read the JR Rules consistently as between the criminal and civil jurisdictions of this court, I consider that a hearing de novo is not available to any party seeking a review of a decision of a Judicial Registrar.
Upon the granting of leave to review (after consideration of the application according to the “form and substance” of the application), the next step in the two-stage process must therefore refer to a hearing, attended by both parties whereby the Magistrate would hear submissions and fully consider the evidence (such as transcript and exhibits) that was before the Judicial Registrar at first instance.
The Magistrate will then be in a position to determine whether any error of law affected the decision of the Judicial Registrar.
If an error of law affected the decision of the Judicial Registrar, the Magistrate would be able to substitute her or his own determination.
If an error of law did not affect the decision of the Judicial Registrar, the Magistrate would not disturb the decision of the Judicial Registrar.
In this respect, reviews would be dealt with in the same way as appeals from Associate Judges to Judges under O 77.06 of the Supreme Court (General Civil Procedure) Rules 2005.[26]
[26]See, for example, Oswal v Carson [2013] VSC 355 Ferguson J at [11].
I am conscious that the process just described, is not necessarily one conducive to dealing with some types of matters mentioned earlier in this judgment, namely where an accused seeks to review the decision of a Judicial Registrar who hands down a substantial fine following the entry of a guilty plea in a criminal proceeding.
However, that difficulty arises by virtue of the application of the JR Rules which may benefit, in my view, by amendment and clarification.
What are the appropriate orders to dispose of this review application?
In determining the appropriate orders to dispose of this review application (which sits at the first stage of the two-stage process) I now consider the matters raised by the Defendant.
As to the Defendant’s first contention, namely that there was a lack of evidence as to how the Defendant has been negligent, I consider this contention to be misguided. The Defendant’s actions (or inaction) caused the load on his trailer to come loose and this caused a hazard to other vehicles on the freeway and an emergency situation behind him.
As to the Defendant’s second contention, namely that the Judicial Registrar failed to undertake an analysis, or make a finding, with respect to causation, I consider this contention to be plainly arguable, having regard to the fact that both the vehicles (a Falcon and a Mercedes) which were in the lane ahead of the Plaintiff were able to brake quickly and come to an immediate stop without hitting other vehicles or the load which had come loose.
As to the Defendant’s third contention, namely that the Plaintiff failed to plead res ipsa loquitur and that it cannot be inferred from the facts that the mere happening of the event means there has been negligence on the part of the Defendant, I consider this contention to be plainly arguable.
As to the Defendant’s fourth contention, namely that the Judicial Registrar did not address the failure of the Plaintiff’s driver to keep an appropriate distance behind the car in front, I consider this contention to be plainly arguable having regard to the fact that Mr. McGee (the driver of the Plaintiff's vehicle) conceded under cross examination he did not maintain a sufficient braking distance and had he done so, he would have been able to avoid the collision. Mr. McGee also conceded in cross examination that knowing the characteristics of a semi-trailer, it was prudent for him to drive at a greater distance than five car lengths behind the car in front and that he was travelling too close to the car in front of him to avoid an emergency. Such concessions, made under cross examination, make it plainly arguable that Mr. McGee breached reg 126 of the Road Safety Road Rules 2017 which provides:
A driver must drive a sufficient distance behind a vehicle travelling in front of the driver so the driver can, if necessary, stop safely to avoid a collision with the vehicle.
As to the Defendant’s fifth contention, namely that the Judicial Registrar did not give sufficient weight to the dash cam footage which showed the vehicle in front of the Plaintiff’s vehicle able to safely stop, prior to being hit in the rear by the plaintiff’s vehicle, I do not consider this contention to be an error of law. However, the fact that both the vehicles (a Falcon and a Mercedes) which were in the lane ahead of the Plaintiff were able to brake quickly and come to an immediate stop without hitting other vehicles or the load which had come loose, make causation a live issue which is plainly arguable, as previously discussed.
As to the Defendant’s sixth contention, namely that the Judicial Registrar did not give sufficient weight to the failure of Mr. McGee to keep a proper look out, I do not consider this contention to be an error of law. However, the fact that both the vehicles (a Falcon and a Mercedes) which were in the lane ahead of the Plaintiff were able to brake quickly and come to an immediate stop without hitting other vehicles or the load which had come loose, make causation a live issue which is plainly arguable, as previously discussed.
For these reasons, I would grant leave to seek review of the decision of the Judicial Registrar.
CONCLUSION
I make the following orders:
a.Pursuant to r 16(4) of the JR Rules, leave be granted to the Defendant to seek review of the decision of the Judicial Registrar.
b.The Defendant have leave to file and serve any affidavit material upon which it seeks to rely (including any transcript and exhibits) by 30 July 2022.
c.The Plaintiff have leave to file and serve any affidavit material upon which it seeks to rely by 30 August 2022.
d.The Defendant have leave to file and serve any affidavit material upon which it seeks to rely, by way of reply, by 30 September 2022.
e.The parties make file and exchange any further written submissions by 30 October 2022.
f.The hearing of the review application be listed on a date to be fixed by the Civil Coordinator on a date not before 16 November 2022.
Unless the parties express a desire to be heard on the question of costs of this Application for Review, by filing and serving any submissions within 14 days of this decision, the costs of this application will be reserved for determination at the final review hearing.

Magistrate J. P. Foster

17 June 2022