Vukic v Edgerton

[2002] HCATrans 36

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S94 of 2001

B e t w e e n -

INA VUKIC

Applicant

and

DENISE EDGERTON & RADE CIKES

Respondents

Application for special leave to appeal

GAUDRON J
McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 15 FEBRUARY 2002, AT 10.45 AM

Copyright in the High Court of Australia

MS U. VUKIC appeared in person.

MR J.T. GLEESON, SC:   May it please the Court, I appear with MR A.J. ABADEE, for the respondent.  (instructed by Tress Cocks & Maddox)

GAUDRON J:   Ms Vukic, do you appear for yourself?

MS VUKIC:   Yes, I am, at this stage, your Honour.

GAUDRON J:   Yes.  When you say “at this stage” do I infer from that that that is not necessarily a permanent situation?

MS VUKIC:   Not necessarily, if leave is granted, your Honour.  It is just that it happened that way, but, yes.

GAUDRON J:   Very well.

MS VUKIC:   The proceedings have gone with and without and as I could manage, yes ‑ ‑ ‑

GAUDRON J:   Perhaps we would be assisted if we heard first from Mr Gleeson.

MS VUKIC:   Thank you, your Honour.

MR GLEESON:   May it please the Court.  Your Honours, there are three separate points which the application seeks to raise.

GAUDRON J:   At this stage do not trouble yourself on the constitutional matter, I think.

MR GLEESON:   Yes.  Your Honour, that leaves that question of power: did the Court of Criminal Appeal have power to do what they did and, thirdly, a question of natural justice which is whether if they intended to exercise that power ought they have notified the parties.

GAUDRON J:   The power one is very interesting question, is it not?  It is not immediately obvious to me that you have power on a stated case to do what was done.  I do realise that in times past the stated case provisions did say it was to be heard as if an appeal, but it does not any more, does it?

MR GLEESON:   Your Honour, the relevant provisions – that is set out in our written submission and we have set that out on page 97:

the District Court Judge may submit any question of law . . . the Court of Criminal Appeal may make any such order or give any such direction to the District Court as it thinks fit.

GAUDRON J:   Yes, but it does not ‑ ‑ ‑

MR GLEESON:   Well, your Honours, the route that was followed by the Court of Criminal Appeal was this that when the matter came before the magistrate it was formalised as an application to vary an order by way of extension.

GAUDRON J:   But he could have dealt with it as a fresh order but he did not and therefore the Court of Criminal Appeal would deal with it as though a fresh application were made to it, I presume.  On the very least, one would have thought, if it had power to do that, it should be doing it as at the date on which it is considering the matter, not by reference to other things.

MR GLEESON:   Your Honour, the intermediate step is that when the matter came before the District Court the judge was exercising the power under section 125 of the Justices Act which we have set out at page 98.  That was a hearing de novo and he had full powers to make such orders as he thought appropriate.

GAUDRON J:   It by no means follows, as I would have thought from section 125, that the District Court could have proceeded as though it had before it a fresh application:

or make such other order in the matter –

you would have to rely on.

MR GLEESON:   Yes:

as to the Court seeing just; and . . . exercise any power which the Justice . . . might have exercised ‑ ‑ ‑

GAUDRON J:   Let us just test this a little.

MR GLEESON:   Yes.

GAUDRON J:   Let us say in an ordinary appeal the person is convicted of offence A and the information alleges only offence A, the matter comes before the District Court, and he says, “Well, look the facts do not bear out offence A.  They do bear out offence B which for the purposes of this discussion you can assume is not included within offence A.”

MR GLEESON:   Your Honour, the relevant question would then be under 125, was there a power which the justice might have exercised to enable him or her to convert the matter into a charge concerning offence B as opposed to A?  Now, in the present case, of course, under Part 15A the making of apprehended violence orders proceeds by way of complaint and the section specifically provides that the complaint may be made orally or in writing and it must be supported on oath, by the complainant, so the relevant question now ‑ ‑ ‑

GAUDRON J:   Was it?

MR GLEESON:   Yes, because extensive ‑ ‑ ‑

GAUDRON J:   The complaint was supported on oath?  I mean, these may not be criminal cases, as such, but, I mean, they do impinge on ordinary individual rights and one would have thought that one would need the procedural matters to be strictly adhered to, would one not?

MR GLEESON:   Yes.  Your Honour, the submission is that before the District Court judge, as before the magistrate, the power was available to proceed either as an application for extension or as a fresh application.  That is the key question, whether the District Court judge had the power to do it in that way.

GAUDRON J:   That is one of them.

MR GLEESON:   Yes.

GAUDRON J:   And even assuming he did was the much more interesting question as to whether that issue, not having been referred in the stated case to the Court of Criminal Appeal, whether they could do that.

MR GLEESON:   Your Honours, one of the matters the Court of Criminal Appeal picked up was that the literally correct answer to the stated case was to dismiss the appeal by way of stated case because the question was framed by the District Court judge in terms of the powers of the magistrate, whereas because it was a hearing de novo it should have been framed in terms of the powers of the District Court judge.  Now, the Court of Criminal Appeal moved beyond that question of mere form in the stated case and proceeded to look at substance, at the question of – at power at both of those levels.

We submit, having done that, it was correct that the District Court judge was entitled to proceed by way of the new complaint and therefore it was open to the Court of Criminal Appeal to reach the same result.  One thing that is clear throughout all of this is that in terms of the merits of the entitlement to the order, they were established amply before the magistrate and ‑ ‑ ‑

GAUDRON J:   That may have been so.  What was established before the magistrate, I should have thought, was irrelevant to what happened in the District Court under section 125.

MR GLEESON:   Yes, and were re‑established before the District Court over 23 days.

GAUDRON J:   Let it be assumed that they were established before the District Court, it looks to me as though on any view the Court of Criminal Appeal was exercising a power for itself, query, to what extent it could rely on what had happened elsewhere and, query also, whether if it did have power to go on and do that, leaving aside the natural justice question, the issue should have been decided as things were as at the date of the proceedings in the Court of Criminal Appeal.

MR GLEESON:   Your Honour, it is clear that the basis upon which the Court of Criminal Appeal proceeded was by accepting the factual findings of the District Court Judge which were made some 16 months earlier.

GAUDRON J:   Well, query, whether it was entitled to.  Assuming it had power to do anything, which is a very large question, query, whether it was entitled to do that.

MR GLEESON:   Yes.

McHUGH J:   Where did it get the power to do that, except by consent of the parties to take into account the evidence?  After all, it was asked to decide a stated case, and then it just goes, on your view, and makes conclusions, based on evidence, which it was not entitled to take into account, unless there is some statutory provision which authorised it to.

MR GLEESON:   Your Honour, because of the nature of the appeal by stated case ‑ ‑ ‑

GAUDRON J:   No, it is not an appeal.

McHUGH J:   It is not an appeal by way of stated case.

GAUDRON J:   It is not an appeal by stated case.  There used to be a provision that said that on a stated case from the District Court it proceeded as if it were an appeal.  I think, when I was very young, there was something to that effect.  That is not what it says now.

MR GLEESON:   What I sought to put was that when the stated case was formulated from the District Court it had to be limited to a question of law and there was no ‑ ‑ ‑

GAUDRON J:   Which rather suggests that that is all that the Court of Criminal Appeal has power to deal with, questions of law.

MR GLEESON:   And what I sought to put was that there was no question as to whether the evidence justified an order for the requisite length or in the requisite terms.  That was sought to be brought up to the Court of Criminal Appeal.

GAUDRON J:   No, there was no question because it went up on a question of law, which I presume – I do not take it, also, if there are defects in this stated case, which there may well be, that the legal representatives of your clients were involved in its preparation.

MR GLEESON:   I cannot answer that question accurately, your Honour.  What I sought to put was that because the question that came up was one concerning power, then there were not any questions raised concerning the findings on the evidence.  The significance of that is that assuming the Court of Criminal Appeal had power to fashion its own order, in my submission, it was entitled to proceed on the basis of the evidence before the District Court.

GAUDRON J:   I think we have said a few words about – in the context of sentencing appeals where the Court of Criminal Appeal clearly has a discretion to re‑sentence, that may even in that situation be a need to alert the parties, or the appellant, if things are to be taken into account that were not mention before, or the like.

MR GLEESON:   Yes.  Could I ask your Honours to go to page 102 of the application book, paragraph 16.

GAUDRON J:   Yes.

MR GLEESON:   On the assumption that your Honours have formed a tentative view that there may be matters here that justify the grant of special leave, one of the matters that we had adverted to immediately after this application was filed was that if there was an argument properly available that, at the very least, the Court of Criminal Appeal being minded to take a different route, if I may say that, to that followed below, was obliged to notify the parties that it was considering, (a), that the route was available and, (b), that it should be exercised, and that in that sense it is at least arguable that it ought to have given the parties the opportunity to make submissions such as those now raised ‑ ‑ ‑

GAUDRON J:   But there is a more fundamental problem of whether it has power or not.  There is no point that matter being dealt with ‑ ‑ ‑

MR GLEESON:   Including submissions as to whether it has power.  Then my client had indicated, at that stage, on 25 June ‑ ‑ ‑

GAUDRON J:   It has already ruled that it has got power.

McHUGH J:   The specific question of law was asked it was an extremely narrow question.  It was whether the judge had erred in law in holding that he had power to extend the duration of the AVO, notwithstanding that it had the orders had expired by effluxion of time.

MR GLEESON:   With respect, your Honour, it was not quite that question.  The question was on page 56 and the question was about the magistrate’s powers.

McHUGH J:   I am sorry, yes.

MR GLEESON:   The literal answer to that question was one favourable to my client which would have left intact an order.  What would then have happened is there would have been a question whether it was open to attempt to state a fresh case or not or whether their rights were exhausted.

GAUDRON J:   Yes.  The learned District Court judge only had those powers that the magistrate had.  In a sense, that is splitting hairs to say that.  If the Court of Criminal Appeal was fussed about it, it could have stood the matter over to enable the District Court judge to formulate another question.

MR GLEESON:   Well, your Honours, what I wish to indicate, upon instructions, is that the offer that was made in paragraph 16 on page 102, which was not accepted and has expired, remains open.  That is the first point.  The second point is that in the event that the Court were minded to grant special leave, my clients would, without admissions, consent to an order remitting the matter to the Court of Criminal Appeal to further consider whether it is appropriate to make those orders, having regard both to questions of power and to questions of substance.

GAUDRON J:   To the Full Court that has already made those orders?

MR GLEESON:   Yes, your Honour.  If that course is not considered acceptable either to the court or to the applicant then the appeal would simply proceed, in the ordinary course.  But what we are anxious to do, recognising that there is a question of power and the like ‑ important questions as to orders made or not but there are also questions as to costs and court time that we are seeking to deal with in an efficient manner.

McHUGH J:   But the difficult is, is it not, that the Court of Criminal Appeal has already determined that it has power under 5B to make the order which it has made, so we could not send it back for them to reconsider it.  We could send it back on the natural justice ground but if we came to the view that they had no such power then there is nothing to send it back to the court.

GAUDRON J:   If the parties want to settle this, as I understand they well might, it seems that the course is clear:  somebody goes back before the magistrate, by consent, whatever orders presently being made are dissolved and a fresh application is made, if that is the course.  As I see it, that is the only way there is any realistic possibility of saving court time and expense in this matter, but, any way ‑ ‑ ‑

MR GLEESON:   The only thing I could put to your Honour is that if the matter is viewed as a case where there is an arguable denial of natural justice, by failing to indicate to both parties ‑ ‑ ‑

GAUDRON J:   There is a bit more than that involved.

McHUGH J:   You may never reach that question.

MR GLEESON:   Yes.

McHUGH J:   It is a question, first of all, of power, and, prima facie, it is a large proposition to say that when a court is asked to determine a question of law on a stated case, particularly the question that was asked in this case, that then has power to make a new AVO itself.  It is a very large proposition.

MR GLEESON:   Well, it is power to exercise a power which the court finds the District Court judge had in the circumstances, not power to simply exercise a fresh power of the court.

GAUDRON J:   There is a large question about that, too, is there not?  When it is an appeal about conviction – not a conviction, an appeal from an order which was made on a particular basis.

MR GLEESON:   All I put to your Honours is that the Court of Criminal Appeal in the concluding part of their judgment came to a view about two matters:  one, that they did have power to go down a different route, and, secondly, they should exercise it.  It seems common ground that they did not notify the parties in advance, but they proposed either to form the view

on power or then to go ahead and exercise the power.  If it is viewed as being an arguable denial of natural justice to take both those steps to form any view about power and then to exercise it then an available solution to the problem is to grant special leave and allow the appeal on the basis that it is remitted to the Court of Appeal to consider both those questions.

That is all I seek to put,  your Honours.  I put that without admissions, and, in the event that that is a proposition that does not find appropriate attraction then the argument remains.

GAUDRON J:   Mr Gleeson, the Court is minded, at this stage, just simply to say there will be a grant of special leave.  Ms Vukic?

MS VUKIC:   Ms Vukic, yes, your Honours.

GAUDRON J:   But we would be minded to say, in any event, that that grant is confined to the grounds of the draft notice of appeal.  Unless you want to resist that – that means that that constitutional point that you have dreamed up is not in it.

MS VUKIC:   Which is a shame, your Honours ‑ ‑ ‑

GAUDRON J:   No, it is not.

MS VUKIC:   I was just going to talk about the general ‑ ‑ ‑

GAUDRON J:   No, do not worry about that.  You will not do yourself any good at any by raising that point.

MS VUKIC:   Thank you, your Honour.

GAUDRON J:   But, Ms Vukic, when I say there will be a grant of special leave, what is proposed, though, is to say this:  there may be ways of resolving this without all the expense of a full hearing but it seems to me it would be unfair to put you in a position where those issues were decided without proper legal advice.

MS VUKIC:   That is correct.

GAUDRON J:   So, although there will be a grant of special leave, the matter can be listed on 48 hours notice to consider whether further and other orders could be made which might avoid the expense of a full appeal in this Court but we would urge you, if it is at all possible, to see what you can do about obtaining legal representation, or at least legal advice, on what has happened in Court today.

MS VUKIC:   Yes, your Honour, I would like to reassure you that I have already spoken to counsel about the possible future of today’s outcome so I will be looking at having legal representation.

GAUDRON J:   Yes, but I think the desirability is that you will have someone look very soon at what Mr Gleeson has said today about the possibility of avoiding unnecessary expense.

MS VUKIC:   I understood that but I would have thought that the first move ‑ ‑ ‑

GAUDRON J:   He has made the first move.

MS VUKIC:    ‑ ‑ ‑offer might be from the respondents and willing to listen always ‑ ‑ ‑

GAUDRON J:   They have made the first move.

MS VUKIC:   Yes.  I am willing to listen.

GAUDRON J:   Realistically, they do not make bigger first moves in this Court than to suggest that the appeal be allowed instantly and the matter remitted.  I have not known a larger first move in many years.

MS VUKIC:   This is an important issue, generally, for the community.  I think the AVO ‑ ‑ ‑

GAUDRON J:   Yes, well, do not talk yourself out of what you have already got.

MS VUKIC:   Thank you.

GAUDRON J:   At this stage the Court will adjourn to reconstitute.

AT 11.09 AM THE MATTER WAS CONCLUDED