Travis v Rando
[2022] VSC 782
•16 December 2022
| IN THE SUPREME COURT OF VICTORIA | Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S ECI 2022 02532
BETWEEN:
| PHILIP TRAVIS | Appellant |
| v | |
| PHILLIP RANDO & ANOR (according to the attached Schedule) | Respondents |
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JUDGE: | Irving AsJ |
WHERE HELD: | Melbourne |
DATE OF RULING: | 16 December 2022 |
CASE MAY BE CITED AS: | Travis v Rando & Anor |
MEDIUM NEUTRAL CITATION: | [2022] VSC 782 |
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COSTS – Against inferior court – By reason of decision or conduct of proceedings – Whether serious misconduct or serious impropriety – Costs order refused.
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APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Victorian Fisheries Authority | |
| For the First Respondent | Adrian Paull Criminal Lawyers Pty Ltd | |
| For the Second Respondent | Magistrates’ Court of Victoria |
HIS HONOUR:
Introduction
This ruling concerns the costs of an appeal from the Magistrates’ Court of Victoria at Geelong (Magistrates’ Court).
Philip Travis (Travis) is an authorised officer employed by the Victorian Fisheries Authority. He was the informant in a prosecution of Phillip Rando (Rando) in the Magistrates’ Court. Rando pleaded guilty to one charge each of unauthorised sale of fish and knowingly dealing with proceeds of crime. Travis sought to make submissions on sentence but was precluded from doing so by the Magistrate, who fined Rando without conviction.
Travis successfully appealed the Magistrate’s order. The Magistrates’ Court did not take an active part in the appeal. It adopted a Hardiman[1] position in the proceeding but opposed Travis’ application for costs. In an order made on 9 November 2022, following a memorandum provided to the Court by Travis and Rando (joint memorandum), I determined that the Magistrate’s decision involved errors of law by misapplying relevant legal authority to deny Travis the opportunity to make submissions on the facts and considerations relevant to sentence and any ancillary orders. I found that as a consequence, the learned Magistrate denied Travis procedural fairness in the presentation of his case. I ordered that the Magistrate’s order be quashed and the matter remitted for determination by a different Magistrate.
[1]R v Australian Broadcasting Tribunal; ex parte Hardiman & Ors (1980) 144 CLR 13.
Travis seeks an order that his costs be paid by the Magistrates’ Court. Travis submitted that the Court should take the unusual step of awarding costs because the Magistrate proceeded contrary to fundamental tenets of the judicial process and the traditional approach to sentencing hearings in Victoria. In particular, the Magistrate denied the prosecution an opportunity to be heard and then denied the prosecution an opportunity to address the Magistrates’ Court on why it should have that opportunity. Travis submitted that the Magistrate acted without justification in that there was no particular urgency such that the matter could not be briefly stood down to enable him to obtain a copy of the relevant authority and seek to persuade the Magistrate that the course he was adopting was fundamentally erroneous.
Travis submitted that if the Court orders the Magistrates’ Court to pay his costs, the Court should also order that the Magistrates’ Court pay Rando’s costs. This submission was put on the basis that Rando did not contribute to the Magistrate’s error and ‘now finds himself in this Court as an unwilling party’.
Rando also seeks an order that his costs be paid by the Magistrates’ Court. Rando adopted Travis’ submissions on costs. Rando submitted that the Magistrate’s failure to hear Travis on both the proper application of the law and factors relevant to sentencing was perverse and demonstrated a flagrant disregard for elementary principles which every court ought to obey. According to Rando, the Magistrate’s flagrant violation of the principle of natural justice ought to attract an order for costs.
The Magistrates’ Court submitted that courts have traditionally taken a cautious approach to ordering costs against an inferior court when that court has not taken an active role in the appeal. The submission argued that the exercise of the discretion to award costs against an inferior court generally depends on the grounds on which the case has been decided on appeal. In this case the Court found that the Magistrate erred in law in misapplying the principles in Barbaro v The Queen; Zirilli v The Queen (Barbaro),[2] a consequence of which was to deny Travis procedural fairness in the sentencing of Rando. According to the Magistrates’ Court, that error was not so fundamental as to require the case to be viewed as one of misconduct or impropriety such that an award of costs would be appropriate. Nor was the error so flagrant or egregious as to warrant the making of an order for costs.
[2](2014) 253 CLR 58.
In Magistrates’ Court of Victoria at Heidelberg v Robinson (Robinson),[3] Brooking JA, with the agreement of Charles and Buchanan JJA, surveyed the authorities from Victoria, New South Wales and England and identified the following principles:
A settled practice has developed of not awarding costs against an inferior court merely because that court has made a mistake. The practice has been to require a clear case of serious misconduct - misconduct of such a nature as to justify an award of costs. Categories of such misconduct have come to be recognised. They are not exhaustive. What the courts have done is lay down principles or guidelines for the exercise of the discretion…
…..
In my view, the notion of serious misconduct or serious impropriety may be said to underlie the award of costs against inferior courts provided that it is understood that there may be misconduct or impropriety notwithstanding the absence of any knowing departure from elementary principles. By this I mean that the person or persons constituting the court may be said to be guilty of serious misconduct or serious impropriety if they failed to observe some fundamental principle of justice notwithstanding that they were ignorant of that principle. Some principles are so fundamental that it may be regarded as misconduct or impropriety in the necessary sense for an inferior court not to observe them notwithstanding that the court is unaware of them. There is, I think, here to be drawn a distinction between rules of substantive law and the fundamental rules of natural justice. The superior court may be prepared to regard even “an astounding blunder” in a matter of substantive law as not exhibiting “gross ignorance” in a necessary sense and, in the absence of “perversity”, may decline to make an order for costs against the inferior court, although a stage might be reached at which the rule of substantive law that had, albeit through ignorance, not been applied was so fundamental as to require the case to be viewed as one of misconduct or impropriety and so as making an award of costs appropriate. But when one is concerned, not with some “ordinary” rule of substantive law, but with the fundamental principles concerning procedural fairness or natural justice, the inferior court may be held not to be excused by its own ignorance. In considering the suggestion of “gross ignorance”, and what is to be excused, one cannot overlook the fact that the lay and honorary justice has given way to the legally qualified professional magistrate. But in saying this I do not wish to suggest that a mere blunder should attract an award of costs: the approach should still be benign, or reasonably so, where a bona fide mistake has been made.
[citations omitted]
[3](2000) 2 VR 233; [2000] VSCA 198, [13], [10].
In the same case, Brooking JA considered the meaning of the word ‘perverse’ in this context. According to Brooking JA the word was used in New South Wales cases to ‘suggest something more than error, or manifest error, and conveys some such notion as obstinacy or persistence in error’.[4]
[4]Ibid [7].
In this case, Travis’ notice of appeal identified as a ground of appeal that the Magistrate denied Travis procedural fairness. The joint memorandum states that ‘the Magistrate both misunderstood and misapplied the relevant legal principles set out in Barbaro and, as a consequence, denied [Travis] procedural fairness in the presentation of his case’. The joint memorandum then set out the two ways in which the Magistrate denied Travis procedural fairness. The first was in denying Travis an opportunity to be heard on the sentence and ancillary orders. The second was, having told Travis to ‘read Barbaro again’, in refusing Travis’ application to stand the matter down so that he could do so. In doing so the Magistrate refused Travis a material opportunity to make submissions on the meaning and application of Barbaro.
The relevant exchange between Travis and the Magistrate was set out in the joint memorandum:
[Prosecutor]: Your Honour, might the matter please be stood down so I can bring up the report, I am aware of the authority –
[His Honour]: No, you can’t.
[Prosecutor]: Your Honour, I would like to be afforded procedural fairness in my submissions on the fact that Your Honour raised this –
[His Honour]: (inaudible) … procedural fairness.
[Prosecutor]: Your Honour, because I am being prevented from making sentencing submissions.
[His Honour]: You are.
[Prosecutor]: With respect to a very important criminal prosecution … (inaudible)
[His Honour]: … (inaudible) …
[Prosecutor]: Your Honour, just for the record I will make it very clear that, I disagree with Your Honour’s on this interpretation of Barbaro. I sought to make submissions today and I’ve been prevented from doing it … (inaudible) stood down so I could obtain the authority and make submissions on that. If Your Honour is not allowing me to, then …
The Magistrate’s misunderstanding of the relevant legal principles clearly falls within the first category identified by Brooking JA in Robinson: an error as to the substantive law. In my view, this error alone would not justify this Court making a costs order against the Magistrates’ Court.
The consequential error made by the Magistrate, particularly of not standing the matter down at Travis’ request to allow him to re-read Barbaro, falls however, within Brooking JA’s second category: an error relating to the fundamental principles concerning procedural fairness and natural justice. The question is whether in making this error the Magistrate committed misconduct so as to make an award of costs appropriate.
In my view the answer to that question is no. The transcript shows the exchange between Travis and the Magistrate was brief. As the transcript also demonstrates, the totality of the exchange was not recorded, or rather, some aspects of it were inaudible for the purposes of the transcript. In refusing to allow Travis to make submissions or to stand the matter down to allow Travis to obtain the relevant authority, the Magistrate was clearly acting on his own, albeit incorrect, understanding of the law. I cannot however be satisfied that the Magistrate acted in a way that meant his manifest error can be regarded as serious misconduct. The consequence of the Magistrate’s actions was serious in that the prosecution was denied procedural fairness. In my view the brief extract of the transcript provided does not clearly show that the Magistrate acted with obstinance or persisted in error when viewed in the context of his own misunderstanding of the law. Bearing in mind the caution with which the Court should approach ordering costs against an inferior court, I am not satisfied that it is appropriate to make such a costs order in this matter.
The applications by Travis and Rando that the Magistrates’ Court pay their costs of the appeal and the plea before the Magistrate are refused.
SCHEDULE OF PARTIES
| S ECI 2022 02532 | |
| BETWEEN: | |
| PHILIP TRAVIS | Appellant |
| - v - | |
| PHILLIP RANDO | First Respondent |
| MAGISTRATES’ COURT OF VICTORIA | Second Respondent |
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