Re Greco
[2018] VSC 175
•13 April 2018
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
S CI 2017 01507
| JOHN PAUL GRECO | Plaintiff |
| v | |
| MELBOURNE CITY COUNCIL & ORS | Defendants |
-AND-
S CI 2017 01509
| JOHN PAUL GRECO | Plaintiff |
| v | |
| CITY OF STONNINGTON & ORS | Defendants |
-AND-
S CI 2017 01510
S CI 2017 01512
S CI 2017 01513
| JOHN PAUL GRECO | Plaintiff |
| v | |
| VICTORIA POLICE & ORS | Defendants |
---
JUDGE: | KEOGH J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 25 October 2017 |
DATE OF JUDGMENT: | 13 April 2018 |
CASE MAY BE CITED AS: | Re Greco |
MEDIUM NEUTRAL CITATION: | [2018] VSC 175 |
---
PRACTICE AND PROCEDURE – Judicial Review – Order 56 of the Supreme Court (General Civil Procedure) Rules 2005 – Extension of time within which to commence proceeding – Special circumstances required – No special circumstances disclosed – No arguable case for judicial review – Lazarevic v Victoria Police [2014] VSC 479 – Craig v South Australia [1995] 184 CLR 163 – Application dismissed.
---
APPEARANCES: | Counsel | Solicitors |
| The Plaintiff appeared in person | ||
| For Victoria Police | Mr L Brown | |
| For Melbourne City Council | Mr A Sim |
HIS HONOUR:
Introduction
Mr Greco was served with 61 infringement notices issued pursuant to the Infringements Act 2006 (the Act)[1] 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 (the infringement notices). An infringement notice requires payment of the infringement penalty within a period specified in the notice. A person served with an infringement notice who wishes to contest the infringement offence may elect to have the matter heard and determined in the Magistrates’ Court. Mr Greco did not pay the infringement penalties or make an election to have the offences heard and determined in the Magistrates’ Court. Consequently, enforcement orders were made requiring payment of each infringement penalty together with certain prescribed costs.
[1]The Act has since been amended. In these reasons I refer to pre-amendment provisions of the Act as they apply to this proceeding.
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 these proceedings Mr Greco applies pursuant to O 56 of the Supreme Court (General Civil Procedure) Rules 2015 (the Rules) for review of the order made by Magistrate King. The grounds for review upon which Mr Greco relied are reproduced below at paragraph [27]. The proceedings were commenced out of time. Mr Greco made an application to extend the time to commence proceedings. Mr Greco was self-represented at the hearing before me.
Melbourne City Council and Victoria Police appeared and opposed the application for extension of time within which to commence the proceedings, and submitted the application for review by Mr Greco was without merit. City of Stonnington was not represented, did not appear, and indicated by correspondence that it would abide the outcome of any decision made by me.
The six Magistrates’ Court files in relation to Mr Greco’s application for revocation of the enforcement orders were produced to the Court. The parties agreed that I should have regard to the content of those files as relevant material.
Factual and procedural history
The infringement notices relate to the following infringement offences:
(a) Two offences of disobeying parking signs in the period 17 October 2013 to 1 May 2014 where the enforcement agency was Melbourne City Council;
(b) One offence of stopping a vehicle on a footpath on 28 June 2014 where the enforcement agency was City of Stonnington;
(c) Fifty-two offences of driving a vehicle unregistered in a toll zone in the period 2 May 2013 and 14 January 2014 where the enforcement agency was Victoria Police Toll Enforcement Office;
(d) Three offences of exceeding a speed limit sign, and three offences of failing to stop before red traffic lights in the period 16 October 2012 and 4 July 2014 where the enforcement agency was Traffic Camera Office.
The following definitions are contained in s 3 of the Act:
Court means Magistrates’ Court;
infringement notice means a notice in respect of an infringement offence served or to be served in accordance with Part 2;
infringement offence means an offence which may be the subject of an infringement notice under—
(a) any Act or statutory rule; or
(b) any local law; …
infringement penalty means the amount stated in an infringement notice as payable in respect of the infringement offence to which the notice relates;
An infringement notice must be served in accordance with s 12(1) of the Act. There is no dispute that the infringement notices satisfied the requirements of the Act and were served on Mr Greco in accordance with s 12.
Pursuant to s 14 of the Act an infringement penalty must be paid within the period specified in the infringement notice. Section 16(1) of the Act provides for a person served with an infringement notice to elect for the infringement offences to be determined by a court:
A person served with an infringement notice may elect to have the matter of the infringement offence heard and determined in the Court–
(a)in the case of a lodgeable infringement offence, at any time before an enforcement order is made;
(b)in the case of any other infringement offence, at any time before the expiry of the period for bringing a proceeding in relation to the offence to which the infringement notice relates.
It is common ground that Mr Greco did not pay the infringement penalties and did not make an election in accordance with s 16(1).
If an infringement penalty remains outstanding and certain criteria are met, an enforcement agency may lodge details of the outstanding amount with the infringements registrar.[2] An infringements registrar may then make an enforcement order for payment of the infringement penalty and prescribed costs to the court.[3] An enforcement order is deemed to be an order of the Magistrates’ Court.[4] Enforcement orders were made against Mr Greco in respect of the infringement notices.
[2]Infringements Act 2006 (Vic), s 54.
[3]Ibid s 59(1).
[4]Ibid s 59(2).
Division 3 of Part 4 of the Act dealt with revocation of enforcement orders. A person against whom an order has been made may apply to an infringements registrar for revocation under s 65. Section 66 relevantly provided:
…
(2)If a person against whom an enforcement order has been made or a person acting on that person’s behalf in accordance with section 65(1)(c) applies under section 65 for revocation of the enforcement order and an infringements registrar is satisfied that there are sufficient grounds for revocation–
(a)the infringements registrar must revoke the enforcement order; and
(b)an enforcement order ceases to have effect on its revocation.
(3)On an application referred to in sub-section (2), if an infringements registrar is not satisfied that there are sufficient grounds for revocation of an enforcement order, the infringements registrar must notify the applicant that the enforcement order has not been revoked because of insufficient grounds to justify its revocation.
…
On 27 February 2015 Mr Greco applied to an infringements registrar to have the enforcement orders revoked. In the written application Mr Greco referred to s 25 of the Charter of Human Rights and Responsibilities Act 2006 (Vic) (‘the Charter’), s 7 of the Criminal Procedure Act 2009 (Vic), r 94 of the Magistrates’ Court Criminal Procedure Rules 2009 (Vic) and s 55 of the Act, and submitted that:
It is blatantly clear that Lawful Proceedings have not been followed. Therefore all matters must be struck out!
The application was refused by the infringements registrar on 3 March 2015. Mr Greco was provided with a notice pursuant to s 66(3) of the Act citing the reason for this refusal as:
Registrar is not satisfied that grounds outlined in application justify matters to be revoked.
A person whose application for revocation has been refused under s 66(2) may apply to have the application for revocation referred to the Magistrates’ Court.[5] On 2 July 2015 Mr Greco’s application for revocation was referred to the Magistrates’ Court and was ultimately listed for hearing before Judicial Registrar Bartlett on 8 June 2016. During the hearing Mr Greco conceded that he had received the infringement notices, and that he did not exercise his right to elect to have the infringement offences heard and determined by a court. Mr Greco submitted he had corresponded and communicated with each enforcement agency in relation to the infringement notices, advised the agencies he was not the driver but would provide particulars in good time, and sought further and better particulars. Mr Greco submitted that he had not been afforded natural justice or procedural fairness because all processes to that point had been dealt with ex parte, and he had not been afforded the right to defend himself. Mr Greco made a number of legal submissions, including that the Infringements Court did not have judicial powers; the notices served on him were not validly executed; he was guaranteed the right to be tried in person and to defend himself by the Charter of Human Rights and Responsibilities Act 2006 (the Charter);[6] and the Infringements Court was operating invalidly from premises that were not gazetted. Mr Greco submitted that for most of the period of the offences he was not driving because of health problems, the infringement notices were left in the hands of his staff and were put in the ‘[too] hard basket’, his business had folded and he had lost everything. Judicial Registrar Bartlett refused the applications on the basis that Mr Greco had been afforded procedural fairness, but failed to make a s 16(1) election or to nominate another driver within the prescribed timeframes.
[5]Ibid s 68(1).
[6]s 25(2)(d).
On 7 July 2016 Mr Greco made an application for review of the hearing and determination by Judicial Registrar Bartlett pursuant to s 16K(3)(a) of the Magistrates’ Court Act 1989 (Vic). The review process is governed by the Magistrates’ Court (Judicial Registrars) Rules 2015 (Judicial Registrars Rules). Rule 16 provides:
Review 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.
Rule 18 provides:
Direction for review of determination operates as stay of order of judicial registrar
If the Court directs that the hearing and determination of a proceeding by the Court constituted by a judicial registrar be reviewed, the direction operates as a stay on any order made by the judicial registrar in the proceeding, unless the Court otherwise orders.
The application for review was not filed within 14 days of the determination by Judicial Registrar Bartlett. In an affidavit in support of his application to extend time Mr Greco stated:
On Thursday 16 June 2016 I made contact with the Law Institute of Victoria (LIV) seeking legal advice to appeal the decision to the Supreme Court on several points of law.
Mr Greco stated that he had been provided with the names of three lawyers and had made an appointment to attend with one on 8 July 2016. He also said he had attended the Prothonotary’s office at the Supreme Court on 24 June 2016, was told he had 60 days to appeal Judicial Registrar Bartlett’s decision, and was directed to the forms required for such an appeal. It is apparent that the time for making the application to review the determination of Judicial Registrar Bartlett was extended.
Mr Greco filed a second affidavit in support of the application for review, in which he complained Judicial Registrar Bartlett did not take into account his correspondence with the enforcement agencies or the fact that he was not the driver when the offences occurred, and did not accord him natural justice, procedural fairness or a fair hearing. Under the heading ‘Grounds for Review’, Mr Greco stated:
16.I have made every legitimate attempt to find and investigate who the driver was in these matters at the time of the offence.
17.Several of these agencies have made judicial decisions in these matters and they have no authority to do so. Judicial powers are vested in our courts and judges under our Commonwealth Constitution section 71.
18.No agency has the right to force any individual to nominate a driver and commit perjury in doing so. A statutory declaration is a legal document outlining truth and facts.
19.On the Attorney General’s website, it is very clear that falsifying facts or true events in a statutory declaration, may lead to a term of imprisonment.
20.The judicial registrar did not take into consideration the volumes of corresponding material in my possession.
21.The judicial registrar made an administrative decision only, as the alleged infringements were not revoked and brought into the Magistrates [sic] Court for a hearing.
22.A public authority making an administrative decision has an obligation to give proper consideration to a relevant human right as per section 38 (1) of the Charter of Human Rights and Responsibilities Act 2006.
23.Proper Consideration to a Fair hearing was not afforded to me as per section 24 of the Charter of Human Rights and Responsibilities Act 2006.
24.Proper consideration as to the minimum guarantees as per section 25 (2) (d) to be tried in person in the Charter of Human Rights and Responsibilities Act 2006.
25.The infringements Court does not conduct a hearing itself nor does it fall under a Chapter III Court. The accused has NO opportunity to defend him/herself.
26.When a judicial registrar makes an administrative decision not to revoke the infringements to a hearing, the accused is not afforded a hearing at the infringements Court or at the Magistrates [sic] Court. Therefore, no right to examine a witness is afforded and a right to a fair hearing is non-existant [sic].
Mr Greco also filed a comprehensive written outline of submissions in support of his application for review expounding the grounds set out in his affidavit.
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.
On 24 April 2017 Mr Greco filed originating motions to commence these proceedings seeking to review the decision of Magistrate King. Pursuant to r 56.02(1) of the Rules, Mr Greco had 60 days from the date of Magistrate King’s determination to commence proceedings. The defendants submitted that, taking account of the vacation period, that time expired on 12 January 2017. Mr Greco commenced these proceedings more than three months out of time.
Extension of time
Mr Greco made an application to extend the time to commence proceedings, relying on r 56.02(3) of the Rules, which provides:
The Court shall not extend the time fixed by paragraph (1) except in special circumstances.
In Lazarevic v Victoria Police,[7] Derham AsJ summarised considerations relevant to an application pursuant to r 56.02(3) as:
[7][2014] VSC 497, (citations omitted).
34The language of the requirement in r 56.02(3) is significantly different. It is general language precluding the Court extending time ‘except in special circumstances’. This expression has been said to be ‘discouraging rather than encouraging’ because of its negative expression.
35 The authorities establish that:
(a)The rule requires the Court to be objectively satisfied that special circumstances exist;
(b)The existence of special circumstances is to be determined by reference to all the circumstances of a case;
(c)The factors relevant to the exercise of the discretion under Rule 56.03(2) include, but are not limited to:
(i)the period of the delay;
(ii)the reason for the delay;
(iii)whether the plaintiff has an arguable case;
(iv)the justice to both parties, including the prejudice to the parties; and
(v)the public interest in the finality of litigation.
36It is important to be aware of the way in which an arguable case, or a case that is not arguable, may be taken into account. The fact that the plaintiff may demonstrate an error below, or other grounds for judicial review, does not automatically result in there being ‘special circumstances’, for if that were so there would be little practical point to the time limit contained in the Rule.[31] On the other hand, where it is clear that a plaintiff’s grounds are not arguable, or he has no real prospects of success, there will ordinarily be no point in extending the time and therefore no special circumstances exist.
Mr Greco
In affidavits in support of his application for extension of time Mr Greco stated:
(a) In mid-November 2016 he obtained three referrals from the Law Institute of Victoria for a 30-minute consultation with a lawyer, but only one of the firms to which he was referred could provide the necessary assistance, and he had an appointment with them on 14 December 2016.
(b) Because of family illness he was required to travel overseas in early December 2016, and did not return to Australia until 18 January 2017.
(c) He attempted, with the assistance of a friend, to commence proceedings while he was overseas, but was unsuccessful because the documents did not meet court requirements.
(d) He was faced with continuing family issues upon his return to Australia in January 2017, which took a toll on him and resulted in him feeling exhausted and depressed, and that he commenced proceedings as soon as he could.
During oral submissions Mr Greco accepted that he was aware at all times that he had 60 days within which to commence proceedings. Other than to refer to the family issues which he detailed in his affidavit, Mr Greco was unable to explain why it took him over three months from the date of his return to Australia on 18 January 2017 to commence proceedings.
Victoria Police and Melbourne City Council
The defendants submitted that the period of delay of over three months was substantial, no adequate explanation for the delay had been given, the Court should not be objectively satisfied special circumstances exist, Mr Greco does not have an arguable case, and the public interest in finality of litigation weighed in favour of rejecting the application for extension of time.
Analysis
From June 2016 Mr Greco was aware of the 60-day period and the forms necessary to commence Supreme Court proceedings. Mr Greco was given the names of three lawyers qualified to advise him in relation to an application to the Supreme Court to review a decision of the Magistrates’ Court, and made an appointment to see one of those lawyers on 8 July 2016. It is not clear whether that appointment was kept. Mr Greco did not explain why he felt the need to go through the Law Institute of Victoria referral process again in November 2016, rather than to attend one of the lawyers to whom he had been referred earlier regarding the same issue.
Mr Greco stated that he attempted to file proceedings in late December 2016, but that some changes were required to the documentation for it to be accepted. By this time Mr Greco had been aware for some months of the time available and requirements for commencing the proceedings, had received referrals on two occasions to lawyers who might assist in relation to the proceedings, and had attempted to file documents commencing proceedings.
I accept that after returning to Australia on 18 January 2017 Mr Greco was faced with managing quite significant family issues. However, in my view those circumstances do not adequately explain the length of delay after 18 January 2017 before proceedings were commenced. The period of delay is considerable. I am not satisfied that Mr Greco’s personal circumstances so consumed all of his available time and attention that he was unable to attend to the requirements for commencing these proceedings of which he was by then well aware.
Further, for the reasons I have set out below, the grounds on which Mr Greco relies for judicial review are without merit. He therefore does not suffer the prejudice of losing the opportunity to present an arguable case before the Court.
Finally, I observe that the enforcement orders which Mr Greco sought to revoke were made over three years ago, and that in the period since he has made three applications to have them revoked. In the circumstances of this case, the public interest in finality of litigation weighs against the extension of time for commencement of the proceedings being granted.
I will dismiss Mr Greco’s application for an extension of time.
Merits of grounds for review
Mr Greco
The grounds for review relied upon by Mr Greco in the originating motions are as follows:
Magistrate King sitting in the Magistrates [sic] Court in Melbourne heard an appeal on the 28 October 2016 and failed to take into consideration [the Charter]. In particular s6 (2)(b), s8(3), s24(1) and s38(1) of the Charter
The decision by the Magistrates [sic] Court not to revoke the alleged Infringements from the Infringements Court to the Magistrates [sic] Court, for a fair and Public hearing was a denial of procedural fairness and natural justice. This was contrary and repugnant to [the Charter], the International Covenant on Civil and Political Rights (‘Covenant’) and the Vienna Convention on the Law of Treaties (‘Convention’).
The Magistrates [sic] Court was NOT operating in a judicial capacity, but rather, in an administrative function when assessing the application for revocation from the so-called Infringements Court. The Magistrate was therefore a public official and bound by the Charter.
Denial of a fair hearing encroaches on the rule of law, procedural fairness and natural justice, inalienable human rights, international law and domestic law.
The Magistrates [sic] Court fell into jurisdictional error as the relevant considerations of the Charter were not taken into consideration, in particular the right to a fair hearing. Rather, the decision was incompatible with human rights and irrelevant considerations were given excessive weight to refuse the application.
In lengthy written submissions Mr Greco placed significant focus on the hearing before Judicial Registrar Bartlett. In relation to the procedural fairness and natural justice ground Mr Greco submitted:
(a) The common law recognises a duty to accord a person procedural fairness or natural justice when a decision is made that affects a person’s rights.[8] The fundamental common law principle of a right to a fair hearing was enshrined in s 24(1) of the Charter.
[8]Kioa v West [1985] 159 CLR 550, 582 (Mason J); Commissioner of Police v Tanos [1958] HCA 6; (1958) 98 CLR 383.
(b) The administrative and ‘highly automated’ nature of the infringement process leading to the point of the application before Magistrate King emphasised the need for proper procedures to allow an individual such as Mr Greco a fair and impartial hearing.
(c) Magistrate King was acting in an administrative capacity and was therefore a public authority for the purposes of the Charter. Magistrate King acted incompatibly with the human rights set out in ss 8, 21 and 24 of the Charter and therefore breached obligations under s 38 of the Charter.
(d) Because it does not have judicial powers the ‘…power to penalise is not vested in the infringements court…’ and it was acting ultra vires in imposing any penalty.
Mr Greco summarised his position as follows:
The Melbourne Magistrates’ Court was called upon to hear an application for revocation regarding the alleged infringements. Registrar Bartlett refused the application for revocation and denied the appellant the opportunity for a hearing to be scheduled. Registrar Bartlett was exercising an administrative function rather than judicial. Therefore, the appellant relied upon the legitimate expectation that Registrar Bartlett as a public authority would consider [the Charter], the International Covenant on Civil and Political Rights and our rule of law, [in] which the right to a hearing is imbedded as a fundamental right.
The appellant is seeking for these matters to be heard before a court of competent jurisdiction and the opportunity [to] defend the alleged offences.
Mr Greco noted that it was a fundamental requirement that a decision maker take into account relevant considerations, and disregard irrelevant considerations. He said that when Judicial Registrar Bartlett asked what steps he had taken when the infringement notices were first served on him he advised that he had corresponded with the relevant authorities about them. Mr Greco submitted that Judicial Registrar Bartlett’s failure to ask to see this correspondence amounted to a failure to take into account a relevant consideration.
It appeared from the grounds listed in the originating motions and the written submissions which he filed, that the substance of Mr Greco’s complaint was that the decisions of Judicial Registrar Bartlett and Magistrate King operated to deny him the opportunity to contest the infringement offences at a hearing in the Magistrates’ Court. However, in oral submissions Mr Greco confirmed that this was not the case. Rather, he complained that Magistrate King did not conduct a fresh hearing of his application for revocation of the enforcement orders, but confined the review to the hearing before Judicial Registrar Bartlett. Mr Greco argued that this amounted to a failure to accord him procedural fairness because he had a legitimate expectation to be heard on the merits of the revocation application, which did not occur. Mr Greco submitted that Magistrate King fell into jurisdictional error by listening to and taking into account the substance of the hearing before Judicial Registrar Bartlett, and by failing to take into account the correspondence and documents which he had available to provide to Judicial Registrar Bartlett. Mr Greco submitted:
That correspondence would have given a bit more clarity as to what I did going back and the fact that he ignored that was a crucial part of my evidence.
Victoria Police
Victoria Police responded to the originating motions and Mr Greco’s written submissions as follows. First, insofar as Mr Greco’s application for review amounted to a challenge to the decision of Judicial Registrar Bartlett, that was overtaken by the decision on review by Magistrate King. Mr Greco had not identified jurisdictional error by Magistrate King of the kind explained by the High Court in Craig v South Australia[9] (Craig). Second, Mr Greco’s complaint that he should have been given an opportunity to contest the infringement offences in court amounted to nothing more than an impermissible attempt to engage in a merits review. Third, there was nothing in the material to suggest Magistrate King committed any jurisdictional error. The application for review was determined by Magistrate King in accordance with the statutory framework provided by r 16 of the Judicial Registrars Rules.
[9][1995] 184 CLR 163.
Fourth, Mr Greco’s proposition that Judicial Registrar Bartlett denied him procedural fairness cannot be sustained on the evidence. A transcript of the hearing reveals that Judicial Registrar Bartlett considered the various arguments advanced by Mr Greco. It is not apparent that the correspondence and documents referred to by Mr Greco were in any way critical to the task at hand. Whilst it might be said that Judicial Registrar Bartlett was required to enquire into the documents to which Mr Greco referred, a failure to do so will only amount to jurisdictional error in ‘rare or exceptional circumstances’.[10]
[10]Minister for Immigration and Citizenship v Le [2007] 164 FCR 151 at 172 [60] (Kenny J); SZMJM v Minister for Immigration and Citizenship [2010] FCA 309 at [30] (Bennett J).
Fifth, any submissions by Mr Greco that the scheme of the Act denied him procedural fairness cannot be sustained. Mr Greco had an earlier opportunity to refer the infringement offences to court for determination,[11] other opportunities to apply for revocation,[12] and the opportunity to apply for review of the refusal by Judicial Registrar Bartlett to revoke the enforcement orders. Sixth, even if it is correct that Judicial Registrar Bartlett was exercising an administrative rather than a judicial function, the right to a fair hearing was clearly considered by him and by Magistrate King.
[11]Infringements Act 2006 (Vic), s 16.
[12]Ibid ss 65 and 68.
In oral submissions Victoria Police reinforced that the requirements of procedural fairness in the hearing before Magistrate King were determined by the statutory scheme, which contemplated the application for review being dealt with ‘on the papers’. Further, Magistrate King concluded that no satisfactory reason was given by Mr Greco to Judicial Registrar Bartlett that would provide grounds for allowing the application and referring each of the infringement offences to trial. Both Judicial Registrar Bartlett and Magistrate King were aware that Mr Greco proposed as a reason for failing to either pay the infringement penalty or make an election under s 16 of the Act that he was corresponding with the issuing authorities to the infringement notices and offences. The reasons of the Judicial Registrar and Magistrate are consistent with a conclusion that corresponding with the issuing authorities and inquiring as to the offences was not a satisfactory reason for granting the application to revoke the enforcement orders.
Melbourne City Council adopted the submissions made for Victoria Police.
Analysis
As the High Court explained in Craig:
An inferior court falls into jurisdictional error if it mistakenly asserts or denies the existence of jurisdiction or if it misapprehends or disregards the nature or limits of its functions or powers in a case where it correctly recognises that jurisdiction does exist. Such jurisdictional error can infect either a positive act or a refusal or failure to act. Since certiorari goes only to quash a decision or order, an inferior court will fall into jurisdictional error for the purposes of the writ where it makes an order or decision (including an order or decision to the effect that it lacks, or refuses to exercise, jurisdiction) which is based upon a mistaken assumption or denial of jurisdiction or a misconception or disregard of the nature or limits of jurisdiction.[13]
[13]Craig v South Australia [1995] 184 CLR 177.
In Stefanovski v County Court of Victoria,[14] Gillard J considered the limited role of this Court in supervising the Magistrates’ Court of Victoria:
22The jurisdiction of the court to review decisions of inferior courts and tribunals is limited.
23The jurisdiction is supervisory and does not entitle this court to canvass matters that it would on an appeal. In a judicial review the court is exercising its common law jurisdiction. The jurisdiction is different to an appeal.
24The judicial review procedure is concerned with the legality of what was done by the court or Tribunal, and is not concerned with the merits of the decision under review. This is to be contrasted with an appeal, where the question usually is whether the decision is right or wrong, whereas the question on a judicial review is whether the decision is in accordance with the law.
25Judicial review is concerned with the legality of the procedure leading to the decision and is not concerned with whether the decision was fair or correct.
[14][2000] VSC 417.
For the following reasons I conclude that Mr Greco’s application to this Court to review the decision of Magistrate King is without merit. 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. Mr Greco argued Magistrate King and Judicial Registrar Bartlett failed to have regard to his correspondence and telephone communications with enforcement agencies relating to the infringement notices. In his affidavit in support of the application to Magistrate King, Mr Greco gave substantial detail of his interaction with the enforcement agencies. It was clear Mr Greco relied on his interactions with enforcement agencies to explain his response to the infringement notices and to justify revocation of the enforcement orders. A submission in similar terms was made by Mr Greco to Judicial Registrar Bartlett. It should be remembered that the 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.[15]
[15]Craig v South Australia [1995] 184 CLR 163, 180.
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.[16] 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. I agree with the submissions by Victoria Police that argument advanced by Mr Greco in written (but not oral) submissions that he was entitled as of right to the opportunity to contest the infringement offences in court, amounts to nothing more than an attempt to have this Court engage in a merits review. Further, I accept the submission of Victoria Police that, insofar as Mr Greco seeks to impugn the determination of Judicial Registrar Bartlett on the basis he was denied procedural fairness, such a submission cannot be sustained on the evidence. This conclusion applies whether the Judicial Registrar was exercising an administrative or judicial function. It is apparent from the transcript of that hearing that Judicial Registrar Bartlett heard Mr Greco’s submissions, gave him an opportunity to make reply submissions, and took account of the points made by Mr Greco.
[16]SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152, 26.
In his written submissions Mr Greco argues, relying on the common law, the Charter and various international treaties, that he was denied the right to a fair hearing. Undoubtedly Mr Greco was entitled to a fair hearing of the applications made by him. However, as Magistrate King observed, Mr Greco did not elect to take the opportunity to have the infringement offences heard in court. I have concluded Mr Greco was accorded procedural fairness by Magistrate King and Judicial Registrar Bartlett on the applications before them.
Had I granted Mr Greco’s application to extend time to commence this proceeding, I would, for the reasons above, have dismissed his application to review the decision of Magistrate King.
Conclusion
Mr Greco’s application to extend time to commence this proceeding is refused. The proceeding will be dismissed. I will hear from the parties as to consequential orders.
4
3
0