Tantram v Courtney

[2005] VSC 268

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No.  4630 of 2005

GREGORY TANTRAM	Plaintiff
v
PETER COURTNEY and COUNTY COURT OF VICTORIA	Defendants

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JUDGE:	HARPER J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	22 JULY 2005
DATE OF RULING:	22 JULY 2005
CASE MAY BE CITED AS:	TANTRAM v COURTNEY & ANOR
MEDIUM NEUTRAL CITATION:	[2005] VSC 268

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ORDERS –Application for judicial review of appeal from Magistrates’ Court to County Court - Judgment for the plaintiff – Form of consequential orders – Effect of quashing orders below – No findings of fact – No power to make orders in relation to the Magistrates’ Court matter.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr T. Poulton	Mahons with Yuncken & Yuncken
For the First Defendant	Ms K. Judd	Victorian Government Solicitor

HIS HONOUR:

1. By a judgment delivered on 28 June 2005 I came to the conclusion that the decision of the County Court in the matter of Tantram v Courtney should be quashed.[1]  A question now arises about the consequential orders. 

   [1]Hastings & Anor v Brennan& Anor; Tantram v Courtney & Anor [2005] VSC 228

1. The powers which a single judge of the Supreme Court has in relation to a judgment of the County Court are limited.  One cannot bring an appeal from a County Court judge to a single judge of the Supreme Court.  One can do what the plaintiff did in this case and bring an application for judicial review; or one can bring an appeal before the Court of Appeal.  There are no other options. 

1. For reasons which I have not been given, the plaintiff chose to proceed by way of judicial review.  The power which I as a single judge of this Court have in relation to such a review are not affected by the Supreme Court rules of procedure, except as to procedural matters.  Accordingly those rules do not give me the substantive power which Mr Poulton for Mr Tantram submitted I had.

1. Mr Poulton referred to r.1.14, which has as its opening words:  "In exercising any power under these rules the court …", and then the rule proceeds to require the court to endeavour to ensure that all questions in a proceeding are effectively, completely, promptly and economically determined. For that purpose, a judge may give such directions as he or she may think fit. 

1. That rule is designed to ensure that proceedings in the court and the exercise of the court's powers under the rules are conducted and exercised as efficiently as possible.  Nothing in the rules, however, confers upon me as a single judge of this court the powers which I do not otherwise have in relation to a substantive matter that comes before me.  An application for judicial review is a substantive matter.  The application itself is conducted in accordance with the rules, and in the conduct of the application for review I of course can exercise the powers given to me by r.1.14; but I cannot by resort to that rule exercise powers in relation to judicial review that I do not otherwise have.

1. The powers are limited to those of quashing the decision from which the application is taken.  The decision whether to quash or not does not, in this case at least (and I think generally, if not always) deal with the merits of the decision, certainly in relation to findings of fact.  Accordingly, my attention in deciding the application was directed not at the question whether particular facts had been proved, but whether there was on the face of the record an error such as to indicate that the decision should be quashed.  The error which I found in this case was his Honour's failure to deal with the real issue between the parties: that is, whether or not logging had taken place in contravention of the Code of Forest Practices for Timber Production.

1. I did not decide that the Code had been infringed.  Nor did I decide that it had not been infringed.  All I held was that the judge himself did not address this question and by failing to address it an error appeared on the face of the record.  The Magistrates' Court decision may or may not have been appropriately based upon a proper consideration of the issues between the parties.  When the matter came before the magistrate, the magistrate may or may not have properly considered the role of the Code as part of the law applicable to the dispute. 

1. It may well be that the magistrate fell into error.  I do not know whether he did or not.  If he did fall into error, then doubtless his decision - being the subject of an appeal - should be overturned; but it is not for me to decide that matter.  No appeal has been brought to me from the decision of the magistrate.  Because the correctness of the magistrate's decision is not before me, I am not in a position to deal with it one way or the other.  It seems to me that the true position is that once the decision of the County Court has been quashed the decision of the Magistrates' Court is revived and will then be for the plaintiff, Mr Tantram, to decide whether or not he wishes to reinstitute the appeal.

1. The plaintiffs are naturally anxious to translate their success on the application for certiorari into a final result that quashes the decision not only of the County Court, but also from the court of first instance – the Magistrates’ Court at Bairnsdale.  It may seem to them that to decline their invitation is to take a mere lawyer’s technicality and construct from that inadequate base an excuse for failing to do justice.  But a moment’s thought will reveal the flaw in such thinking.  For the plaintiffs were not the only parties before the Magistrates’ Court.  The Department, through the present individual defendants was also a litigant.  Like all litigants, the Department has a right to be heard.  Having heard both sides, the magistrate found for the Department in each case.  He may have been wrong to do so.  The plaintiffs think he was, and have exercised their right of appeal.  It is unfortunate that the judgment on appeal was vitiated by error.  But the plaintiffs cannot on that ground conjure the negation of the decision of the magistrate – especially without giving the Department the right to be heard on the question whether the appeal should succeed.  And that question was not and is not one for me to decide.  Were I to proceed to do so, or more especially simply to negate the original proceeding, I would be depriving the Department of a result it presently enjoys; and I would be doing so in defiance of the basic rule of justice that the Department, like the plaintiffs, is entitled to be heard on that issue. 

1. If Mr Tantram does wish to reinstitute the appeal with the County Court, then it would be appropriate for me to remit the matter to the County Court.  It may be the appropriate course in any event, but it may be, and I will hear Mr Poulton further about this if he wishes to argue the point, that if the plaintiff does not wish to challenge the Magistrates' Court decision the matter need not go back to the County Court and in that case I would not remit it.  I might also hear, if she wishes to be heard on the point, Ms Judd. But the most I can do, it seems to me, is make an order that the decision of the County Court be quashed, and either remit the matter to the County Court for rehearing, or if I am persuaded that that is not the proper course, to simply say nothing about remittal; which, as I understand it, would, as I say, bring back to life the decision of the magistrate.

1. A different result may well have followed if an appeal had been taken from the County Court to the Court of Appeal.  I have heard no submissions about that and I am not in a position to come to any conclusion about it.  In any event it is irrelevant to the present position.  As I understand my position it is that I can at best quash the decision of the County Court and remit the matter for further hearing.

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