Sedrak v Carney
[1999] VSCA 114
•30 July 1999
SUPREME COURT OF VICTORIA
COURT OF APPEAL Not Restricted No. 7900 of 1998
KHAIRY AMIN SEDRAK
Applicant
v.
MARGARET ANNE CARNEY & ANOR.
Respondents
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APPLICATION ON SUMMONS
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JUDGE: CHERNOV, J.A. WHERE HELD: MELBOURNE DATE OF HEARING: 30 July, 1999 DATE OF JUDGMENT: 30 July, 1999 MEDIA NEUTRAL CITATION: [1999] VSCA 114
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Practice and procedure – Appeal - Application - Appeal not be taken to be abandoned - Appeal books delivered one day late - Whether appeal so devoid of merit that order sought would be futile - Supreme Court Rules, rr.64.16, 64.26(1).
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APPEARANCES: Counsel Solicitors For the Applicant In person --- For the First Respondent Mr. P. Curtis (Solicitor) Moores No appearance for the Second Respondent
CHERNOV, J.A.:
This is an application for an order that the appeal not be taken to be abandoned notwithstanding that the applicant failed by one day to serve the appeal books within the time stipulated in the order of Master Cain of 25 May 1999. The applicant appeared on this occasion in person and has done so throughout the course of proceedings leading to this application.
The circumstances giving rise to the application can be described briefly. On 23 November 1998, the applicant filed an originating motion and summons whereby he sought judicial review of the decision of a magistrate (the second respondent), inter alia, not to commit the first respondent to trial for defamatory libel of the applicant.
The applicant and his wife were involved in acrimonious and prolonged Family Court proceedings between 1996 and 1997. In December 1997, he launched a private prosecution against his wife and her solicitor (the first respondent), alleging that both had committed perjury in relation to the Family Court proceeding and that the first respondent had published a defamatory libel. According to him, the defamatory libel in question was contained in the solicitor's letter to the Director of Legal Aid in Box Hill where it was stated that, inter alia:
"Mr. Sedrak's behaviour during the hearing causes the magistrate to
call security to court room."
| 4 | The decision of the magistrate not to commit the wife and the solicitor to trial was delivered on 24 September 1998 and his order discharging the first respondent was made on the following day. The applicant sought a review of that decision pursuant to Order 56 of the Rules of the Supreme Court ("the Rules"). The order sought by the applicant in his summons was: |
"Order to commit the first defendant to trial or to remit the matter to the Magistrates' Court at Melbourne and directing the learned magistrate to do so or to deal with the matter according to law and natural justice rules".
On 12 February 1999, Master Wheeler dismissed the applicant's originating motion on the ground that the court had no jurisdiction to interfere with the magistrate's decision in committal proceedings by way of certiorari or mandamus. The Master further stated that even if the plaintiff's proceeding had been properly brought, he would nevertheless have dismissed it as being an abuse of process.
The applicant appealed from that decision to a judge of the Supreme Court. On 3 March 1999, Mr. Justice Beach (expressing doubt as to the power of the Master to do so) dismissed the plaintiff's summons and originating motion on two grounds. First, that the Court would not interfere by way of certiorari with a magistrate's decision whether to commit a person for trial. Secondly, and in any event, there was no proper basis for interfering with the magistrate's decision.
In relation to the first ground, his Honour relied on what Smith, J. said in this regard in Phelan v. Allen [1970] V.R. 219, 223. He also referred to Brygel v. Stewart- Thornton [1992] 2 V.R. 387. In relation to the second ground, his Honour said that even if the Court could interfere with the magistrate's decision, in his opinion, there was no basis for doing so in the circumstances. A writ of certiorari would only run where the magistrate had made a jurisdictional error, had failed to observe some applicable requirement of natural fairness, or where fraud or error on the face of the record had been shown. His Honour referred to Craig v. State of South Australia (1995) 69 A.L.J.R. 873, 876, and held that none of the distinct grounds particularised in that case had been established by the applicant. His Honour also noted that he had read the transcript of the evidence given before the magistrate and his reasons for decision. In his Honour's opinion, the simple fact of the matter was that the magistrate made no procedural error in refusing to commit the first respondent for trial.
I should add that the second respondent did not appear before his Honour, but was prepared to abide by the decision of the Court (save any order as to costs). A similar intimation was given on his behalf on 8 June 1999 in respect of this appeal.
The applicant commenced an appeal from the decision of Mr. Justice Beach in this Court by Notice of Appeal filed 24 March 1999. The appeal was instituted and contents of appeal book settled in accordance with the Rules.
On 25 May 1999, Master Cain ordered that the applicant deliver by 6 July 1999, four copies of the appeal book to the Registrar, three copies to the solicitor for the first respondent and three copies to the solicitor for the second respondent.
The applicant attempted to deliver one appeal book to the Registrar on 7 July 1999 (apparently in order to confirm its contents before completing delivery in accordance with the Master's order), but his office refused to accept it as delivery was out of time. It was made clear to the applicant that no appeal books would be accepted from him because their delivery would be out of time.
The Court (and a single judge exercising the powers of the Court: r.64.26(1)(g)) has power under r.64.16(2) to order that an appeal not be taken to be abandoned where it is otherwise, in accordance with r.64.16(1)(b), deemed to be abandoned by reason of the appellant's failure to comply with the order that the appeal books be delivered to the Registrar by the prescribed time.
If the only matters to be considered in respect of this application were the length of the delay and the reason for it, the applicant would have a powerful case for obtaining the order sought by him. I assume in his favour that he was only one day late in complying with the relevant order.
Further, on a reading of his affidavit in support of this application filed 23 July 1999, it is fairly clear that the applicant's failure to adhere to the time limit was due to a misunderstanding on his part as to the date by which the appeal books should have been delivered. The applicant's "belief" was that he heard Master Cain say that he had until 7 July 1999 to deliver the appeal books. The objective facts, however, satisfy me that the order made was that the appeal books be delivered by 6 July 1999. That this is so is clear from the Court record which was made at the time.
As I have said, if the length of the delay and the reason for it were the only circumstances which had to be considered in an application of this kind, in the normal course of events the Court would probably have granted the order sought. It is clear that the relevant timetable set by the Rules, which is intended to ensure fairness to all concerned and that appeals be processed with reasonable expedition, would not be applied so strictly as to deprive a person in the position of this applicant, of having his appeal heard and determined in the ordinary way.
In my view, however, as I made clear to the parties at the commencement of the hearing of this application, it is necessary to consider whether the making of the order sought would be futile and thereby create an injustice to the respondents and cause needless expenditure of public funds if the appeal were otherwise to proceed. This involves consideration of whether the appeal is so devoid of merit that it would be futile to make the order sought. It is recognised that what must be clearly shown before the applicant is denied the right to have his or her appeal heard, is that the appeal would fail.
In Jackamarra v. Krakouer (1998) 153 A.L.R. 276, Brennan, C.J. and McHugh, J. were of the view that once an appeal has been commenced, the applicant is entitled to have the appeal determined in the usual way. They said, at 279, that where an extension of time for the taking of an interlocutory step is sought "the merits of the appeal are not a relevant consideration … unless, unusually, the Court can be satisfied that the appeal is so devoid of merit that it would be futile to extend time".
Gummow and Hayne, JJ. accepted, at 283-286, that on an application for extension of time for the taking of an interlocutory step, it may be appropriate to consider whether it is clear that the appellant has no real prospects of success so that it would be futile to grant the extension of time.
Kirby, J. said, at 295:
"The party seeking indulgence bears the burden of persuading the decision-maker to grant its request. A consideration relevant to that exercise is whether the case is arguable. If it is hopeless, unarguable or bound to fail, the request for an extension of time will be refused. However, this is basically because to grant it would be futile".
At 297, his Honour observed that the main object of the scrutiny of the merits of the case is to obviate a hearing which would clearly be futile. In considering the merits of the appeal, the Court does not effectively hear the entire appeal. As Gummow and Hayne, JJ. pointed out in Jackamarra v. Krakouer, at 286, if the futility of an appeal can be demonstrated only by hearing the whole argument, there may be no advantage to bringing it forward to a time when a relatively minor procedural irregularity is sought to be corrected. Sometimes the courts have described that process of determining this matter as "rough and ready" (Jackamarra v. Krakouer, at 280). In saying this, the Court probably intended to convey that lack of merit must be very clear before the applicant is deprived of the right to have the appeal considered in the normal way and that usually, such an issue will not be considered at an interlocutory stage if it involves the whole appeal being argued or an examination of the details of the evidence.
This case does not involve, in my view, the hearing of the whole appeal or the detailed analysis of the evidence given at the committal proceedings. At most, on the question whether the applicant was denied an opportunity to be heard, it may require reference to a few passages in the transcript at which the magistrate stated, by way of conclusion, that the defendants be discharged.
The committal proceeding was conducted by way of a hand-up brief which was prepared by the applicant. In accordance with the usual procedure, since he made a statement in support of his charge, he was cross-examined in relation to that and to the contents of the letter which he said were untrue and were made maliciously.
In a sense not surprisingly, the applicant was cross-examined as to credit and numerous matters relating to his credit were put to him. The magistrate concluded that a jury, properly directed on the law and the facts and acting reasonably, could not be satisfied beyond reasonable doubt that the statement in the letter constituted a libel. Accordingly, the first respondent was discharged on the libel count.
In my view, Beach, J. was correct in dismissing the applicant's summons and originating motion on the ground that in this case, certiorari was not available to quash the magistrate’s decision. The law in Victoria is that the Court will almost never interfere by way of certiorari with the decision of a magistrate to commit or not commit a person for trial. This has been held to be so in a number of cases. They include those to which his Honour referred and others such as R v. The Magistrates' Court at Prahran; ex parte Hamilton, unreported, Full Court of the Supreme Court of Victoria, 1 July 1980, 20-21; Randall v. Wheeler and Another, unreported, Supreme Court of Victoria, 27 March 1991; Rossi v. Martland, Magistrates' Court of Victoria and Attorney-General (Vic) (1994) 75 A.Crim.R. 411; Magistrates' Court at Prahran v. Murphy [1997] 2 V.R. 186; Tan Van Nguyen v. Petrovic and Magistrates' Court of Victoria, unreported, Supreme Court of Victoria, 28 November 1997; and Von Arnim v. Popovic and R., unreported, Supreme Court of Victoria, 1 July 1998.
In The Magistrates' Court v. Murphy, Charles, J.A. observed at 213-214, that the High Court has repeatedly warned against interference in the conduct of criminal proceedings; see, for example, Sankey v. Whitlam (1978) 142 C.L.R. 1, 22-24; Barton v. R. (1980) 147 C.L.R. 75, 104.
The undesirability of such interference was explained by Kirby, P in Chow v. Director of Public Prosecutions (1992) 28 N.S.W.L.R. 593, 599-600:
"They are based upon the high public interest in the orderly conduct of criminal proceedings, which include the sentencing of persons convicted following a plea. They rest upon the avoidance of interruption of such proceedings by those who have access to funds and a determination to manipulate criminal prosecutions. The availability of appellate procedures following conviction and sentence and the possibility that many problems disappear, or are resolved, at first instance if only cases are allowed to take their ordinary course provide further reasons to restrain an over- enthusiastic response to interlocutory claims for judicial review of criminal proceedings."
A like position prevails in New South Wales: see Waterhouse v. Gilmore (1988) 12 N.S.W.L.R. 270, per Hunt, J. at 274-276; Loubatie v. Director of Public Prosecutions, unreported, Supreme Court of New South Wales, Court of Appeal, 13 December 1994, particularly at 7; compare Lamb v. Moss (1983) 76 F.L.R. 296.
Even if one were to assume that the rule was not absolute, in my view, very exceptional circumstances would have to be shown before it could be said that certiorari should issue in respect of a committal proceeding.
Such circumstances do not exist here. The applicant sought to distinguish the authorities to which I have referred on the ground that they dealt with prosecutions brought by the Crown or by the Director of Public Prosecutions. He argued that the magistrate's role in relation to the committal was regarded as ministerial or executive in those cases because his decision whether or not to commit was not determinative of whether the defendant would be presented for trial. It was the Attorney-General or the Director of Public Prosecutions who would make that decision.
In the present case, however, so the applicant argued, the charge was brought by a private person who would have little hope of persuading the Director of Public Prosecutions to present the first respondent for trial on an indictment based on a charge in respect of which the magistrate refused to commit the defendant.
In my view, however, the fact that the prosecution was a private one does not affect the principle on which the Victorian and other authorities have consistently held that certiorari is not available to review a committal proceeding.
The nature or character of the magistrate's decision whether to commit does not change with the identity of the prosecutor or the nature of the prosecution. Such decisions remain ministerial in nature and as Smith, J., with whom Winneke, C.J. and Gowans, J. agreed, said in Phelan v. Allen, at 223 (as was pointed out by Beach, J.):
"Orders committing or refusing to commit have for a very long time been regarded as ministerial and therefore are not subject to judicial supervision".
In my view, therefore, the applicant has no prospect of overturning his Honour's decision on this point.
Consequently, he could not secure the ultimate orders he seeks and, therefore, to make an order that the appeal not be taken to be abandoned would be futile. It would work a serious prejudice to the respondents, would result in a waste of public funds and, in my view, would do no favour to this applicant.
Strictly speaking, this is sufficient to dispose of the application. I will, nevertheless, deal completely with the submissions that the applicant put to me in support his contention that his Honour erred in holding that the magistrate made no reviewable error. I do so in deference to his efforts to present his case shortly and courteously.
I should say at the outset, however, that in my view, no error was made by his Honour in relation to the second ground on which he dismissed the summons and the originating motion.
I now turn to deal with the applicant’s submissions. He claimed that the respondent had put before his Honour the transcript of the proceeding in the Magistrates' Court which contained material which was not relevant in the sense that most of it was only referable to proceedings instituted by him in the Federal Court. In his reasons for judgment, his Honour indicated that he had read the transcript of the proceeding and, therefore, according to the applicant, had regard to irrelevant material. The applicant said that he did not tell his Honour not to look at all of the material because he thought his Honour would ignore the irrelevant parts.
In my view, that is just what his Honour did. There is nothing to suggest that his Honour took into account irrelevant material in coming to his conclusion.
The applicant's second point was that his Honour did not read his supporting material fully or at all because had he done so, he could not have concluded that he had not been denied natural justice before the magistrate. It was said by the applicant that it was obvious that he was denied natural justice. It is obvious, however, that it does not follow that just because his Honour did not accept the applicant's submissions on this point, he had not read his material. In my view, it is plain that his Honour read all of it.
It may be that this submission derived from a misunderstanding on the applicant's part of how the Court hears cases and as to what the magistrate actually said. The applicant claimed that when he was giving evidence during the committal proceeding the magistrate confined him to answering the cross-examiner's questions and that he later refused to allow him to respond by way of an explanation of the evidence which he gave under cross-examination. Such a contention is contrary to what the magistrate said at page 142 of the transcript, where he effectively invited the applicant to deal with the matters that arose out of cross-examination. In my view, that is in accordance with normal procedure and does not amount to denial of natural justice.
Next, the applicant submitted that his Honour failed to address in his reasons for judgment, his claim that the magistrate erred in law in misconstruing ss.10 and 11 of the Wrongs Act 1958. Regrettably, this submission may also have arisen as a result of a misunderstanding by the applicant of the law and procedure. I do not say that as a criticism of him because he is a layman in that area. But in Craig v. State of South Australia, to which his Honour referred, the High Court said, at 876-877, that certiorari is a process by which a superior court supervises the acts of an inferior court. It is not an appellate procedure enabling a general review of the order or decision of the inferior court. Where the writ lies, it merely enables the quashing of the impugned order or decision upon one or more of a number of distinct established grounds, more importantly, jurisdictional error, failure to observe some applicable requirement of procedural fairness, fraud and, "error of law on the face of the record".
Even if the magistrate misconstrued ss.10 and 11 of the Wrongs Act, as the applicant contends, which in my view he did not do, that would not have amounted to a jurisdictional error warranting relief by way of certiorari. His Honour said as much in paragraph 10 of his judgment.
As I understood the applicant, his next complaint was that his Honour overlooked the fact that the magistrate should not have formed the view that the applicant's evidence concerning the falsity of the letter was unreliable; that issue should have been left to be determined by the jury. He relied in support of that submission on cases which dealt with "no case" submissions. (There was a separate but related complaint by the applicant that the magistrate wrongly took into account the applicant's evidence in cross-examination which related to his credibility.)
Again, this submission may be the by-product of a misunderstanding by the applicant of the function of the magistrate who conducts a committal proceeding in the context of a hand-up brief. The person who has made a statement which is part of the hand-up brief and who proposes to give evidence at the trial in accordance with that statement may be cross-examined and the magistrate is required to decide on all the material before him whether the evidence is of sufficient weight to support a conviction. If he or she concludes, as the magistrate has done in this case, that the jury is unlikely to convict the defendant, he is required to discharge the defendant. Here, the magistrate merely concluded that the applicant’s evidence on the critical issue was unreliable. It was necessary for him to form a view as to that in order to determine whether the jury might convict the defendant.
I mention for completeness that his Honour expressed reservation as to whether the Master had jurisdiction to dismiss the summons and originating motion. Consequently, he set aside the orders of the Master. His Honour ordered, however, that the applicant pay the first respondent's costs of the proceeding, including the costs of the applicant before the Master.
The applicant sought to appeal against that part of the order, but he has not as yet obtained leave to do so. Nevertheless, Mr. Curtis, a principal of the firm of solicitors that employs the first respondent, and who appeared for her before me, informed me that not only did he not expect to recover those costs, but he would not seek them from the applicant.
In light of that, the applicant indicated that he would not pursue this notional
ground of appeal.
To reiterate, in my view, for the reasons briefly given by me, it would be futile to order in this case that the appeal not be taken to be abandoned.
Consequently, I refuse to make the order sought with the result that the appeal will remain effectively abandoned.
Are there any applications as a result of this decision?
(Discussion ensued re costs)
I will make the usual order that the applicant pay the costs of the first respondent of this application. Consequently, I will order that the application be dismissed and that the applicant pay the first respondent's costs of this application.
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