The Crown in Right of the State of Victoria (Department of Health) v Magistrates' Court of Victoria
[2022] VSC 630
•21 October 2022
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S ECI 2022 02660
| THE CROWN IN RIGHT OF THE STATE OF VICTORIA (DEPARTMENT OF HEALTH) | Plaintiff |
| v | |
| MAGISTRATES’ COURT OF VICTORIA | First Defendant |
| MICHAEL O’GRADY (VICTORIAN WORKCOVER AUTHORITY) | Second Defendant |
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JUDGE: | Gorton J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 6 October 2022 |
DATE OF JUDGMENT: | 21 October 2022 |
CASE MAY BE CITED AS: | The Crown in Right of the State of Victoria (Department of Health) v Magistrates’ Court of Victoria |
MEDIUM NEUTRAL CITATION: | [2022] VSC 630 |
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ADMINISTRATIVE LAW – Judicial Review – Magistrates’ Court of Victoria decision to not grant leave to cross-examine witnesses at committal hearing – Procedural fairness – Declaratory relief granted – Criminal Procedure Act 2009 s 124.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr D Neal SC, Mr R O’Neill and Mr M McLay | MinterEllison |
| For the First Defendant | No appearance | |
| For the Second Defendant | Mr D D Gurvich KC and Ms A French | In-house counsel |
HIS HONOUR:
Mr O’Grady, the second defendant, an officer of the Victorian WorkCover Authority, has charged the Crown in Right of the State of Victoria (Department of Health), the plaintiff, with breaching its obligations under the Occupational Health and Safety Act 2004 in its operation of the hotel quarantine program for persons returning to Victoria that were obliged to quarantine in various hotels as a result of the COVID-19 pandemic. I will refer to the second defendant as the Victorian WorkCover Authority, rather than as Mr O’Grady and I will refer to the plaintiff as the Department of Health. There are 58 charges, and they relate to 17 hotels and cover a period of some 3½ months. The charges allege, in substance, that the Department of Health is guilty of the offences of failing so far as was reasonably practicable to provide and to maintain for its employees and for contractors a working environment that was safe and without risks to their health. The Victorian WorkCover Authority proposes to call 71 witnesses at the trial, including nurses, security guards, hotel management, security guard management, other government employees including those involved in the COVID-19 response and experts.
A committal proceeding is to be held in the Magistrates’ Court of Victoria, the first defendant, in accordance with Chapter 4 of the Criminal Procedure Act 2009.[1] There was a mention in the committal process on 17 June 2022 in order to consider the applications to cross-examine witnesses. The Victorian WorkCover Authority and the Department of Health provided to the Magistrates’ Court a Case Direction Notice (or ‘Form 32’) as required by s 118 of the Criminal Procedure Act 2009 (the ‘Act’). That notice[2] indicated that the Department of Health intended to seek leave to cross-examine 70 of the proposed witnesses, and that the Victorian WorkCover Authority consented to leave being granted in respect of all but one of those witnesses. The Magistrate granted leave to cross examine 34 of the witnesses but refused to grant leave to cross examine the remaining 36 witnesses. The Department of Health has applied to this Court for a declaration that the decision to refuse the applications for leave were invalid and contrary to law or otherwise affected by jurisdictional error, relief in the nature of certiorari quashing the order refusing the applications, and relief in the nature of mandamus directing that the applications be determined in accordance with law. The Victorian WorkCover Authority opposed the Department of Health’s application in this Court.
[1]The first defendant notified the Court that it did not intend to take an active role in the proceeding in accordance with the principles enunciated in R v Australian Broadcasting Tribunal; ex parte Hardiman (1980) 144 CLR 13.
[2]There had been earlier versions; I am referring to the final version.
Section 124(1) of the Act provides that:
(1)A witness cannot be cross-examined without leave being granted under this section.
Section 124(2) of the Act provides that in determining whether to grant leave the court ‘may’ have regard to whether the informant consents to or opposes leave being granted. Section 124(3) then provides that:
(3)The Magistrates’ Court must not grant leave to cross-examine a witness unless the court is satisfied that –
(a) the accused has identified an issue to which the proposed questioning relates and has provided a reason why the evidence of the witness is relevant to that issue; and
(b) cross-examination of the witness on that issue is justified.
Section 124(4) then sets out various matters to which the Magistrates’ Court must have regard in determining whether cross-examination is justified. There is nothing that compels the Magistrates’ Court to grant leave in the event that it is satisfied of the matters set out in s 124(3) of the Act.
These provisions therefore create a regime where:
(a) the starting position is that accused parties do not have a right to cross-examine witnesses in a committal proceeding, but can apply for leave to do so;
(b) the Magistrates’ Court is not permitted to grant leave unless it is satisfied of the requirements set out in s 124(3) of the Act, and reaching a state of satisfaction of those matters is a condition of the power to grant leave; and
(c) if the Magistrates’ Court is satisfied of the requirements of s 124(3) of the Act and is thus empowered to grant leave, it nonetheless has a residual discretion to exercise as to whether or not to exercise that power. It may be, for example, that the Magistrates’ Court considers that the objectives of a committal hearing may fairly be satisfied, and court time and the parties’ resources may sensibly be saved, if leave is given to cross-examine only a representative sample of some categories of witnesses.
The reasons of the Magistrate were brief. Her Honour stated:
As previously stated, the Court on the last hearing raised concerns as to the deficiencies of the Form 32. These deficiencies have not changed, nor have I been persuaded by Counsel’s submissions that the test to grant leave has been made out on all witnesses.
Accordingly, taking into account the lack of compliance with Section 119 and 124, the nature of the charges (and their elements) before the Court, I am not satisfied that it is appropriate to grant leave to [cross-examine] all of the witnesses sought.
In the interests of Justice, I grant leave to cross examine all witness on the Form 32 excluding the following: [and her Honour then set out the names of the proposed witnesses in respect of which the application for leave to cross-examine were dismissed].
In this case, the Case Direction Notice identified each witness by their name, whether the application for leave to cross-examine that witness was opposed, and then some material under the heading ‘issue, relevance and justification’. The information contained in the document under that heading was essentially the same for each nurse, each security guard, each member of hotel management, and each member of security guard management. Neither party, in submissions before her Honour, argued separately in respect of any particular witness within any particular category.
The Department of Health has asserted, and the Victorian WorkCover Authority has not disputed, that the selection of names by her Honour has resulted in a situation where:
(a) at some hotels, some or nearly all of the nurses are able to be cross-examined, but no security guards;
(b) at some hotels, no nurses are able to be cross-examined, but some or nearly all of the security guards are; and
(c) at some hotels, no nurses or security guards are able to be cross-examined.
Counsel for the Victorian WorkCover Authority was not able to identify the criteria that were or might have been applied by her Honour to differentiate between the individual witnesses within each category, or between the different hotels. Nor was it apparent to me upon reviewing her Honour’s reasons.
It may have been open to the Magistrate to dismiss each application on the grounds that the Department of Health had not discharged the obligation on it to satisfy the Magistrates’ Court of the matters contained in s 124 of the Act. But the grant by the Magistrate of leave to cross-examine 34 of the proposed witnesses compels a conclusion that her Honour must have been satisfied that the Department of Health had done so in respect of those witnesses.
In the absence of any discernible rationale in her Honour’s reasons or arising from the transcript of the proceedings before her or in the Case Direction Notice for differentiating between the various witnesses, I am prepared to infer, on the balance of probabilities, that:
(a) her Honour formed the view, as a general proposition, that cross-examination of nurses and security guards and other witnesses was justified; but
(b) her Honour exercised her residual discretion, probably in the interests of efficiency, to refuse the applications in respect of many of the proposed witnesses so that time and resources would not needlessly be wasted.
The difficulty with this approach, however, is that the Department of Health was not given an opportunity to argue against that approach or, if leave was to be granted in respect of only some of the witnesses for that reason, to address which witnesses within the various categories were to be selected. I am satisfied, particularly in circumstances where the Victorian WorkCover Authority was not opposing the grant of leave to cross-examine almost all the witnesses, that procedural fairness required that her Honour inform the Department of Health of her proposed approach before making orders that reflected it. The failure to do so was material to her Honour’s decision, in the sense that a different result might have been reached if the Department of Health had made relevant submissions.[3]
[3]See, eg, Nathanson v Minister for Home Affairs (2022) 96 ALJR 737, 748 [33] (Kiefel CJ, Keane and Gleeson JJ), 750 [45] (Gageler J).
Accordingly, I am prepared to make a declaration that the Department of Health was not provided with procedural fairness when its applications to cross-examine witnesses were refused.[4]
[4]Whatever be the position with relief in the nature of the prerogative writs, a court can make a declaration in relation to orders made in the course of a committal hearing. See Sankey v Whitlam (1978) 142 CLR 1. See also Ainsworth v Criminal Justice Commission (1992) 175 CLR 564 and Plaintiff M61/2021E v Commonwealth of Australia (2010) 243 CLR 319, where declarations were made notwithstanding that certiorari was not available.
The dismissal of the applications for leave was an interlocutory order. It seems to me that a consequence of my declaration would be that the Department of Health would be entitled, should it wish to do so, to renew its applications. In light of my findings, it would not be an abuse of process for it to do so. Her Honour may then reconsider the matter in light of whatever material and arguments are directed to her. Nothing in these reasons is intended to preclude the Magistrates’ Court from making whatever decision it considers appropriate if the applications are renewed; it may well be that some selective approach to the witnesses is appropriate. Alternatively, her Honour might decide to commence the committal on the basis of the orders presently made, and not to hear any renewed applications until some of the witnesses have been cross-examined; or, her Honour may consider it appropriate to grant leave in respect of all or most of the witnesses before the evidence commences. This is all a matter for her Honour.
I do not consider that it is necessary for me to determine whether:
(a) the order dismissing the applications for leave to cross-examine affects legal rights in the matter required to justify an order in the nature of certiorari; or
(b) whether the reasons were inadequate and if so whether a failure to give adequate reasons by a magistrate hearing an application for leave to cross-examine a witness in a committal proceeding is an error of law on the face of the record and thus attracts an order in the nature of certiorari.
This is because, for the reasons above, I do not consider that it would be necessary to make such an order. But in any event, I would be bound by Potter v Tural[5] to conclude that an order in the nature of certiorari is not available in a committal hearing. I note that the Department of Health formally submitted that that decision was no longer good law particularly in light of the observations made in Kirk v Industrial Court.[6] It is not necessary for me to express any views on that subject.
[5](2000) 2 VR 612.
[6](2010) 239 CLR 531.
I am not prepared to make an order in the nature of mandamus, because I am not satisfied that her Honour failed to exercise her jurisdiction. Even if I were satisfied that the findings that I have made mean that her Honour constructively failed to exercise her jurisdiction in respect of those applications that were dismissed, given that the order was interlocutory, I would have exercised my discretion not to make an order that required her Honour to determine them ‘in accordance with law’, for the reason that the applications can instead be renewed.
I will hear the parties on the form of order and as to costs.
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