Swebbs v Magistrates' Court of Victoria (No 2)

[2017] VSC 339

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S CI 2016 03990

ROBIN SWEBBS	Plaintiff
v
MAGISTRATES' COURT OF VICTORIA	First Respondent
CHIEF COMMISSIONER OF POLICE	Second Respondent
TRACY SYMONS	Third Respondent

---

JUDGE:	Ginnane J
WHERE HELD:	Melbourne
DATE OF HEARING:	On the papers
DATE OF JUDGMENT:	20 June 2017
CASE MAY BE CITED AS:	Swebbs v Magistrates’ Court of Victoria (No 2)
MEDIUM NEUTRAL CITATION:	[2017] VSC 339

---

JUDICIAL REVIEW — Costs — Orders sought in joint memorandum made by Court — Decision of Magistrate quashed — Plaintiff’s application for costs against Magistrates’ Court of Victoria — Reliance on grounds additional to those on which the consent orders were based — Application refused.

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr M Cenacchi	Taylor Splatt & Partners
For the First Respondent	Mr L Brown	Victorian Government Solicitor’s Office

HIS HONOUR:

1. In a judgment delivered on 4 May 2017, following a memorandum received from the plaintiff and second respondent, I determined that the Magistrate’s decision subject to review involved errors of law on the face of the record by imposing invalid limitations on the power contained in s 189 of the Firearms Act 1996 and not exercising the discretion conferred by s 189 in accordance with law.[1] I ordered that the order of the Magistrate be quashed and that the matter be remitted for rehearing and determination in accordance with law.

   [1]Swebbs v Magistrates Court of Victoria [2017] VSC 229.

1. The Magistrates’ Court of Victoria adopted a Hardiman stance in the proceeding but opposed the application for costs.

1. The plaintiff seeks an order that the Magistrates’ Court of Victoria pay his costs of the proceeding on grounds that included that the Magistrate’s conduct of the hearing of the proceeding was inappropriate and constituted a denial of procedural fairness. The plaintiff contended that the Magistrate predetermined the matter and refused to follow a binding decision of the Supreme Court[2] which was brought to his attention. Reference was also made to the Magistrate allowing Ms Symons to cross-examine the plaintiff. Attacks were made on the Magistrate’s findings of fact. The plaintiff submitted that the Magistrate’s decision and conduct justified that costs should be awarded against the Magistrates’ Court.[3]

   [2]Pickford v Chief Commissioner of Police [2000] VSC 435.

   [3]Magistrates’ Court of Victoria at Heidelberg v Robinson (2000) 2 VR 233 (‘Robinson’).

1. The submissions for the Magistrates’ Court on costs referred to what was described as settled law that the court would only order costs against an inferior court or tribunal in ‘extreme circumstances’, such as where there was a clear case of serious misconduct.[4] The submission argued that there was a strong policy imperative to ensure that a Magistrate’s independent decision making and exercise of judicial power was not eroded by the potential for adverse costs orders following judicial review proceedings. The submissions contended that the Magistrate’s error of interpretation of the legislation was not a reason for awarding costs against the Magistrates’ Court. Misunderstanding evidence or making an error of fact were not grounds for awarding costs against the Magistrates’ Court.

   [4]The first respondent also relied on the decision in Robinson’s case.

1. In written reply submissions, the plaintiff drew attention to the procedural fairness grounds in his Amended Originating Motion and submitted that it would be wrong to limit the broad discretion as to the award of costs to the issues raised in the joint memorandum.

Analysis

1. The orders that I made on 4 May 2017 followed receipt of a joint memorandum filed by the plaintiff and second respondent agreeing to relief by the Court in terms that I accepted. Issues of denial of procedural fairness, which were raised in ground (c) of the Amended Originating Motion, were not raised in the memorandum and I made no finding about the Magistrate’s judgment based on that ground.

1. The joint memorandum was submitted in accordance with the Court’s procedures where the parties seek orders to determine a judicial review proceeding by setting aside the decision which is the subject of the application for judicial review. That procedure is contained in the Judicial Review and Appeals List Practice Note which provides:

Where proposed consent orders would set aside or vary a decision under review or appeal or would involve the remittal of any matter or would otherwise affect the conduct or the result of a proceeding or matter before an external decision-maker, judicial power is engaged in relation to the functions of a public authority, and the Court may need to consider for itself whether the orders should be made, particularly where the proceeding or matter affected is executive or administrative in nature. Where orders of such a kind are sought “on the papers”, a joint memorandum explaining the legal justification for the proposed orders must be provided to the Court. The Court may nevertheless require the attendance of practitioners. Even if satisfied that the proposed consent orders are appropriate, the Court may consider it necessary to publish reasons for the making of the orders or at least to direct that a copy of the joint memorandum be served on the decision-maker affected together with a copy of the orders made.[5]

[5]Practice Note SC CL 9, [8.1].

1. The plaintiff and second respondent requested this Court to exercise its judicial review power and in their joint memorandum provided the grounds for it doing so. The Court decided to make the orders that the parties proposed based on its consideration of the submissions contained in the memorandum. The errors made by the Magistrate were contained in his statement of reasons for decision. The discretion to award costs is broad, but in this case I consider that it should not be based on grounds other than those that the parties relied on in their joint memorandum. The exercise of the discretion to award costs must generally depend on the grounds on which the case has been decided and not on grounds that have not been the subject of submissions. The grounds raised in the joint memorandum, on which I made the orders of 4 May 2017, involved the Magistrate’s errors of law and statutory interpretation. Those errors should not, in this case, lead to the order for the costs that the plaintiff seeks. The additional grounds now pressed by the plaintiff were not pressed in the joint memorandum and I do not consider that the Court should now consider making orders for costs on the basis of them.

Conclusion

1. The plaintiff’s application for costs against the Magistrates’ Court of Victoria is refused.