Western Truck Towing v Magistrates' Court of Victoria and Roads Corporation
[2013] VSC 224
•3 May 2013
| Send for Reporting | ||
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
SCI 2013 01868
| WESTERN TRUCK TOWING PTY LTD | Plaintiff |
| v | |
| THE MAGISTRATES' COURT OF VICTORIA | First Defendant |
| - and - | |
| THE ROADS CORPORATION | Second Defendant |
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JUDGE: | DERHAM AsJ | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 1 May 2013 | |
DATE OF JUDGMENT: | 3 May 2013 | |
CASE MAY BE CITED AS: | Western Truck Towing v Magistrates' Court of Victoria and Roads Corporation | |
MEDIUM NEUTRAL CITATION: | [2013] VSC 224 | |
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PRACTICE and PROCEDURE – originating motion for relief in the nature of certiorari, mandamus and prohibition under Order 56 of the Supreme Court (General Civil Procedure) Rules 2005 - review of Magistrates decision on grounds of apprehended bias – summary judgment sought by defendant under Rule 23.01 of the Rules and under s 63 of the Civil Procedure Act 2010 – no viable basis for apprehended bias – other grounds of review dependant on bias ground – no real question to be tried – proceeding dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr P. Billings | Marshalls & Dent |
| For the First Defendant | No Appearance | |
| For the Second Defendant | Mr B. Walters SC with Mr E. Nekvapil | Katherine Navarro for the Roads Corporation |
HIS HONOUR:
Introduction
By an originating motion filed on 15 April 2013, the plaintiff seeks orders in the nature of certiorari, mandamus and prohibition in relation to the conduct of His Honour Michael Lethbridge, Magistrate, sitting in the Melbourne Magistrates’ Court on 15 March 2013. The originating motion, and summons dated the same day were not supported by any affidavit filed at the time or since (other than an affidavit of the solicitor for the plaintiff, Western Truck Towing Pty Ltd (“Western Truck”) responding to the affidavit of the solicitor for the second defendant, the Roads Corporation (“VicRoads”)).
The summons on the originating motion was given a return date of 6 May 2013 in Associate Judges’ Court 2.
By summons dated 26 April 2013, VicRoads applied for orders that the proceeding be dismissed, or stayed generally, under Rule 23.01 of the Supreme Court (General Civil Procedure) Rules 2005. In the alternative VicRoads sought that the proceeding be heard in the Practice Court on an expedited basis and be dismissed. In addition, VicRoads applied in argument pursuant to s 63 of the Civil Procedure Act 2010
The proceeding arises out of prosecutions brought by a Mr Kohn Kolonis of VicRoads against Western Truck, which are fixed for hearing on 6 May 2013 in the Melbourne Magistrates’ Court before Magistrate Lethbridge. At present there is no application by Western Truck to stay the conduct of those prosecutions.
Central to the relief sought by Western Truck in its originating motion is the second order sought which is in the following terms:
An Order in the nature of Certiorari that the Ruling/Order of His Honour Mr Gerard Michael Lethbridge, Magistrate, sitting in the Magistrates’ Court at Melbourne on 15 March 2013 in refusing to recuse himself or otherwise disqualify himself from further dealing and/or hearing the certain charge under Section 26 of the Accident Towing Services Act 2007 filed on 11 January 2013 alleging an offence against the Plaintiff (in which John Kolonis is the informant) on 1 August 2012 at St Albans be removed into this Court and be quashed.
Orders numbered 3 to 5 sought in Western Truck’s originating motion and summons also relate to its claim that the Magistrate exhibited conduct which could give rise to a reasonable apprehension of bias and that he should have disqualified himself from hearing VicRoads application to set aside witness summonses. Orders numbered 6 to 11 sought in the originating motion and summons relate to its challenge to the disposition by the Magistrate of a number of witness summonses which had been issued at Western Truck’s request.
In paragraph 12 of the originating motion and summons a declaration was sought in the following terms:
A declaration that the holder of a regular tow truck licence under s 10 of the Accident Towing Services Act 2007 (“the Act”), which has attached to that licence a condition imposed under s 25 of the Act that the tow truck be not authorised to attend accident scenes within a controlled area as defined for the purposes of lifting and carrying or lifting and towing damaged or disabled motor vehicles, would not breach s 26 of the Act or Division 9 if the attendance of the tow truck is limited to attending for the purpose of lifting and carrying or lifting and towing damaged or disabled motor vehicles with a gross vehicle mass of 4 tonnes or more.
In addition to the prosecutions that have been laid by John Kolonis, as informant as referred to in the relief referred to in paragraph 5, there are other prosecutions in which the informant is a Mr Scott Douglas and similar relief is sought in relation to Lethbridge M refusing to disqualify himself from hearing those charges (paragraph 3 of the originating motion and summons). I will return to the other relief sought in the course of considering the application made by VicRoads to dismiss or stay the proceeding. I note, however, that in submissions made by Mr Billings of Counsel on behalf of Western Truck that the relief sought as specified in paragraph 5 above, based as it is upon the proposition that Lethbridge M had disclosed actual or apprehended bias on his part was the lynchpin upon which all other relief depended.
Background
In the prosecutions VicRoads contends that Western Truck has contravened s 26 of the Accident Towing Services Act 2007 (“the Towing Act”) by breaching a licence condition imposed under that Act by attending and/or towing from an accident scene in the “controlled area”, an area declared in the Victoria Government Gazette, which includes the Greater Metropolitan Melbourne. It appears from the affidavit sworn on behalf of VicRoads by its solicitor, Katherine Miriam Navarro, on 26 April 2013 that Western Truck holds the view that the relevant licence conditions are invalid because they are not authorised by the Towing Act, at least in so far as they purport to restrict the towing of vehicles weighing over 4 tonnes. Mr Boyle, solicitor, has sworn and affidavit dated 30April 2013 correcting this understanding. Western Truck does not dispute the validity of the licences conditions, it contends that the conditions do not restrict the towing of vehicles weighing over 4 tonnes.
The current trial date of 6 May 2013 was fixed on 1 November 2012 for the charges laid by Mr Douglas. The charges laid by Mr Kolonis were instituted on 11 January 2013. VicRoads seeks to have the proceeding commenced by Western Truck in this Court heard and determined before 6 May so that these proceedings do not delay the trial in the Magistrates’ Court.
On 13 February 2013 Western Truck had the Magistrates’ Court issue 17 witness summonses in the Kolonis prosecutions returnable on 22 February 2013 at the Sunshine Magistrates’ Court. Fourteen of these witness summonses were directed to officers of VicRoads, including Ms Navarro, the Acting Senior Prosecutions Officer for VicRoads (and she is the solicitor for VicRoads in this application), the Chief Executive Officer of VicRoads, Mr Gary Liddle and 12 other officers. The subject of the witness summonses was the production of any and all correspondence in relation to a number of identified tow truck licences passing between each and every one of the VicRoads officers to whom the witness summonses were directed and others, including a sergeant of police in the Brimbank Highway Patrol.
On 15 February 2013 Magistrate Bentley presided at the hearing of the first mention for the Kolonis prosecutions at the Sunshine Magistrates’ Court. Ms Navarro swears that she informed the Magistrate that a substantially similar prosecution was listed for hearing on 6 May 2013 at the Melbourne Magistrates’ Court (the Douglas prosecutions). After hearing from the parties’ representatives, Magistrate Bentley ordered that the two matters be heard together and transferred the Kolonis prosecutions to the Melbourne Registry of the Magistrates’ Court. At the same time, Ms Navarro requested that compliance with the witness summonses be extended in order for VicRoads to make application to set them aside. Magistrate Bentley advised that the proper process was to put such an application in writing to the Court.
On the same day, namely 15 February 2013, Ms Navarro received an email from Mr Boyle (of Marshals & Dent, solicitors for Western Truck) referring to the hearing before Magistrate Bentley and informing Ms Navarro that Western Truck intended to proceed with the witness summonses at the Sunshine Magistrates’ Court on 22 February 2013. This provoked Ms Navarro to write to the Melbourne Magistrates’ Court on 18 February (copied to the solicitors for Western Truck) requesting an urgent special mention to hear VicRoads’ application to set aside the witness summonses. She requested the special mention be listed on either 1 or 4 March.
On 21 February, Western Truck emailed Ms Navarro attaching a letter dated that day consenting to a special mention to determine the issue of the witness summonses and advising that the preferred date for that mention was 4 March 2013 and, until such time as the matter is determined by the Magistrate, excusing the subjects of the witness summonses from appearing and producing the required documents on a return date of 22 February 2013. It was the evidence of Mr Boyle that the wording of this letter showed that Western Truck expected to participate in the scheduling of the special mention, and the scheduling without Western Truck’s participation is a part of its complaint (see below).
At about 2.05pm on 21 February, Ms Navarro received a telephone call from a member of staff in the Registry of the Melbourne Magistrates’ Court in which she was advised that Magistrate Lethbridge was available to hear VicRoads’ application to set aside the witness summonses on 15 March and that the special mention would be listed for that day. Ms Navarro was also advised by the Registry staff member that Magistrate Lethbridge would extend the date for compliance with the witness summonses from 22 February until the date of the special mention, namely 15 March. Ms Navarro undertook to advise Western Truck of that listing date and of the extension of time for compliance with the witness summonses. She duly did this by email later that day (exhibit KMN-8 to her affidavit). Western Truck’s solicitor had no notice of this until advised by Ms Navarro and complains of the one sided communications with the Court.
In the meantime, however, Ms Navarro emailed the Registry staff member, Lisa Eldridge, without copying the email to the solicitor for Western Truck, informing her that the next day when she returned to the office she would request that Magistrate Lethbridge extend the time further for compliance with the witness summonses to a date after the special mention. This was clearly a sensible course to adopt to avoid the very many witnesses the subject of the summonses attending the Court on a day on which the application to set those summonses aside was fixed to be heard.
Later that day, at 7.50pm on 21 February, Western Truck’s solicitors emailed Ms Navarro advising her that Western Truck had withdrawn its consent to excuse VicRoads’ witnesses from attending court on 22 February to answer the summonses. They also advised Ms Navarro that their counsel would attend at the Sunshine Magistrates’ Court on 22 February seeking compliance with those summonses and expressed concern about the listing of the special mention without reference to their counsel’s availability. The letter was in the following terms:
We are at a loss to understand how Magistrate Lethbridge could make an order excusing VicRoads from complying with the witness summons (sic) until the date of the special mention on 15/3 as advised by you.
Furthermore, we had no notification of any proposed application by you to the Melbourne Magistrates’ Court apart from the cc’d letter to us from your office dated 18/2/2013 seeking an urgent special mention on the 1/3/2013 or 4/3/2013 at 11.00am at the Melbourne Magistrates’ Court. We had no opportunity to object to any matters raised before Magistrate Lethbridge including the unsuitability of the date to our client’s counsel. You have not produced any evidence of the orders you claim have been made by Magistrate Lethbridge in our absence.
We are therefore instructed to withdraw our client’s consent to excuse your witnesses from appearing and complying with the witness summonses as issued and served and returnable at Sunshine Magistrates’ Court tomorrow (22/2).
We have instructed our counsel to appear at Sunshine Magistrates’ Court tomorrow and insist on orders being made to have the witnesses comply with the summonses issued and served as well as an order for costs.
The next day, 22 February, at 8.03am, Western Truck’s solicitors emailed Ms Navarro clarifying the point made in his email of the night before. He said that the purpose of the hearing on 22 February at the Sunshine Magistrates’ Court is to set a return date for the witness summonses at Sunshine and the attendance of those witnesses at that later date. He advised Ms Navarro that the witnesses were not required that day and that if Ms Navarro did not attend at Sunshine that day they would be seeking an order for their costs of the day.
On 22 February, Ms Navarro emailed the Sunshine Magistrates’ Court attaching a letter from VicRoads that day which included several pieces of correspondence, including VicRoads’ letter to the Magistrates’ Court dated 18 February requesting an urgent special mention to set aside the witness summonses, the response from the solicitor for Western Truck dated 21 February and a chain of email correspondence including Western Truck’s solicitors complaint as referred to in paragraph 12 above. The letter was written because VicRoads was unable to attend at the Sunshine Magistrates’ Court that day and because the Melbourne Magistrates’ Court had confirmed that it now had the conduct of the matter, including the fact that a special mention had been fixed for 15 March. She submitted in her letter to the Court that the Sunshine Magistrates’ Court should not deal with the witness summonses and should resist any attempts on behalf of Western Truck to seek their compliance that day. Mr Boyle deposes[1] that he was not aware of this correspondence with the Court, but I note that the email appears to have been copied to him (Exhibit KMN-11 to Ms Navarro’s affidavit).
[1]Affidavit of John Cameron Boyle sworn 30 April 2013, paragraph 27.
Also on 22 February, but at 10.34am, Ms Navarro emailed the Melbourne Magistrates’ Court requesting written confirmation from the Court that VicRoads was excused from complying with the witness summonses until the date of the special mention on 15 March 2013. She repeated that request at 12.39pm that day. Shortly afterwards she received an email from the Melbourne Magistrates’ Court advising that the Sunshine Magistrates’ Court would not be dealing with the witness summonses and that Western Truck would be advised that all enquiries are to be made at the Melbourne Magistrates’ Court. Mr Boyle again deposes that he was not aware of this correspondence with the Court, and I note that there is no indication that it was copied to him (Exhibits LMN-12 and 13 to Ms Navarro’s affidavit).
On 4 March 2013 Ms Navarro faxed a letter to the Melbourne Magistrates’ Court requesting a further extension of time for the VicRoads witnesses to comply with the witness summonses to 22 March 2013, being one week after the special mention on 15 March. A copy of this letter was emailed to Western Truck’s solicitors on 5 March. In the email to Western Truck’s solicitors Ms Navarro said that she had been advised that day (5 March) that VicRoads had been excused from complying with the witness summonses until after its application is heard on 15 March, and that the new date for compliance was 22 March.
The 15 March hearing
On 15 March, Magistrate Lethbridge heard VicRoads’ application to set aside the witness summonses. Both VicRoads and Western Truck were represented by counsel. Before VicRoads could make its application to have the witness summonses set aside, Mr Billings, of counsel, who appeared for Western Truck, submitted that Magistrate Lethbridge recuse himself on the basis of actual or apprehended bias. VicRoads had no notice of Western Truck’s intention to make this application.
The basis of the application was that in making orders for the hearing of the VicRoads application to set aside the witness summonses, and by granting an extension of the time for compliance with them, without giving Western Truck the opportunity to be heard as to the dates, and by apparently prejudging the relevance of the witnesses before hearing from Western Truck, Magistrate Lethbridge had demonstrated actual or apprehended bias in relation to the issues he had to decide in VicRoads’ application to set aside the witness summonses. Mr Billings tendered a bundle of documents which included the Kolonis charge sheet and summons, the correspondence referred to above (and additional correspondence) and the complaint dated 5 March (quoted above at paragraph 17). Mr Billings specifically drew the Magistrate’s attention to that complaint at the conclusion of his submissions. It appears that in addition to complaining in the letter of 5 March, Western Truck’s solicitors also complained to the Chief Magistrate by letter dated that day. After reciting the facts to which I have referred that complaint to the Chief Magistrate was:
We are baffled and extremely disappointed by the Magistrates’ Court’s handling of this matter in:
1. Failing to give notice of VicRoads’ application;
2.denying us the opportunity to present suitable dates for the special mention; and
3. failing to advise us of the outcome of the same.
All communications in relation to this issue were received from VicRoads as a matter of courtesy and had the effect of putting us on the back foot.
The closed door consideration of VicRoads’ application flies in the face of natural justice and procedural fairness. Our client was denied the right to be heard and the right to respond to any information presented or considered by the Magistrate Lethbridge in granting the special mention and reaching his decision to excuse VicRoads from compliance with the witness summonses.
Accordingly, Magistrate Lethbridge’s conduct has prejudiced our client’s right to discover critical documents and has placed our clients at an unfair financial disadvantage. Our client incurred substantial fees and disbursements in issuing and serving the witness summonses. There is also the issue of costs thrown away in relation to the return date for the witness summonses scheduled for 22 February 2013 at the Sunshine Magistrates’ Court, including but not limited to, counsel’s fees.
We reiterate our dissatisfaction in the strongest possible terms and seek an explanation for the conduct of Magistrate Lethbridge in making the orders for the special mention on the 15 March 2013 (sic) without referral to our client’s position on the matter.
This letter was also submitted to Magistrate Lethbridge in support of the application by Western Truck that he disqualify himself from hearing VicRoads’ application.
Mr Billings submitted that the Magistrate should at least consider adjourning the matter (VicRoads application to set aside the witness summonses) so as to consider his submissions about apprehended bias and the complaint made to the Chief Magistrate.[2]
[2]Transcript of hearing before Magistrate, part 2, p.7, exhibit KMN-1 to the affidavit of Ms Navarro sworn 1 May 2013.
Counsel for VicRoads submitted to Magistrate Lethbridge that there was no basis for him to recuse himself. He submitted, amongst other things, that:
(a) VicRoads had at all times advised Western Truck’s solicitors of its correspondence with the Court and the outcome of that correspondence;
(b) Western Truck had ample opportunity to object to the extension of time to comply with the witness summonses between 19 February when it was advised of the extension and 15 March;
(c) The decision of Magistrate Lethbridge to extend time for compliance with the witness summonses could not give rise to a reasonable apprehension of bias.
Significantly to the present application, counsel for VicRoads referred the Magistrate to the observations of McHugh J in Laws v Australian Broadcasting Tribunal[3] where it was said that:
When suspected prejudgment of an issue is relied upon to ground the disqualification of a decision maker, what must be firmly established is a reasonable fear that the decision-maker’s mind is so prejudiced in favour of a conclusion already formed that he or she will not alter that conclusion irrespective of the evidence or arguments presented to him or her.[4]
[3](1990) 170 CLR 70 at 100.
[4]Cited with approval in British American Tobacco Australia Services Ltd v Laurie (2011) 242 CLR 283 at [45] per French CJ. Although French CJ dissented in that case there is no reason to suggest that the statement of principle by McHugh J is anything but plainly correct.
Counsel for VicRoads also tendered a bundle of correspondence between the parties and between VicRoads and the Court in order to provide a complete picture of the events giving rise to Western Truck’s application for Magistrate Lethbridge to disqualify himself. All of the relevant correspondence is referred to above.
Magistrate Lethbridge reserved his decision until after the luncheon break when he ruled that there was no actual or apprehended bias and declined to recuse himself.[5] Counsel for Western Truck, Mr Billings, sought time to obtain instructions but informed the Court that he did not intend to make submissions on the hearing of VicRoads’ application to set aside the witness summonses in view of His Honour’s ruling on the application to disqualify himself.[6] It appears from the transcript that Mr Billings did not withdraw, but remained in Court for the hearing of the application by VicRoads to set aside the witness summonses,[7] and in fact made submissions in relation to the witness summonses directed to non-VicRoads personnel.[8]
[5]I have set out the judgment of the Magistrate in a Schedule to these reasons.
[6]Transcript of hearing before Magistrate, part 4, p.4, exhibit KMN-1 to the affidavit of Ms Navarro sworn 1 May 2013.
[7]See Transcript part 6, page 5, exhibit KMN-1 to the affidavit of Ms Navarro sworn 1 May 2013.
[8]See Transcript part 7, exhibit KMN-1 to the affidavit of Ms Navarro sworn 1 May 2013.
Magistrate Lethbridge then proceeded to deal with that application. VicRoads’ counsel submitted that Western Truck had not demonstrated that the documents sought in the witness summonses had any legitimate forensic purpose and, accordingly, they should be set aside. In the course of doing so, counsel for VicRoads handed up a chronology and a list of the legal issues in the case, from VicRoads perspective and understanding. Counsel submitted that the factual issues in the prosecutions in the Kolonis prosecutions were confined and Western Truck had not demonstrated how documents meeting the very broad description in the witness summonses could be relevant to those confined factual issues. There were no submissions on behalf of Western Truck in response.
In consequence of these submissions, Magistrate Lethbridge, after some consideration, set aside each of the witness summonses directed to officers of VicRoads.[9] Before concluding the matter, his Honour enquired whether there was any further matter to be dealt with, at which time counsel for VicRoads raised the question of a further three witness summonses directed to people not employed by VicRoads and requesting identical categories of documents as those sought in the VicRoads witness summonses, and sought to have them set aside. Objection was taken by counsel for Western Truck that VicRoads did not have standing to make such an application. Magistrate Lethbridge held, in substance, that the Magistrates’ Court had jurisdiction to supervise the issuing and setting aside of witness summonses and, in the circumstances where he had ruled that the 14 witness summonses directed to VicRoads’ officers should be set aside on the basis that they would serve no legitimate forensic purpose, it was appropriate to exercise that jurisdiction to set aside the three further witness summonses which were in identical form although directed to persons not employed by VicRoads. Accordingly, those summonses were set aside.
[9]A transcript of his reasons is set out in Schedule 1 to these reasons.
Submissions by VicRoads
Mr Walters Sc appeared for VicRoads. He made submissions to the effect that the applications for orders in the nature of prerogative relief were doomed to fail. In particular:
(a) The claim is an abuse of process because it is foredoomed to fail. The conduct complained of was that, in order to accommodate an application to set aside summonses, the Magistrate fixed a special mention date and extended time for compliance with the summonses until after that return date. He did not hear from the other party in granting the extension of time;
(b) The review of the decision of the magistrate in relation to the witness summonses is a review of an interlocutory decision in the course of a prosecution. It is quite hopeless, because Western Truck now seeks to review a decision when it failed to offer any submissions below. It now seeks to uphold the validity of summonses when it failed to identify any legitimate forensic purpose for those summonses when called upon to do so;
Seeking to have a civil court determine an issue already before a criminal court
In relation to paragraph 12 of the originating motion and summons, which seeks declaratory relief, as set out in paragraph 7 above, it was submitted by VicRoads:
(a) Declaratory relief is generally inappropriate for proceedings in the criminal courts.[10] In any case in which a declaration can be and is sought on a question of evidence or procedure, the circumstances must be most exceptional to warrant the grant of relief. Applications for declarations as to the admissibility of evidence may in some cases be made by an accused person for purposes of delay, or by a prosecutor to impose an additional burden on the accused, but even when such an application is made without any improper motive it is likely to be dilatory in effect, to fragment the proceedings and to detract from the efficiency of the criminal process: Sankey v Whitlam;[11]
(b) The essential requirement for the grant of declaratory relief is that there be a real question, with a plaintiff having a real interest and a proper contradictor, and that the circumstances be such that it is appropriate to grant a declaration. The question what is "appropriate" will be determined by reference to, and the balancing of, the factors present in a particular case, and in this respect different considerations may apply depending on whether the question arises in a criminal or civil case. In the criminal jurisdiction, an important consideration will be the need to observe and not fragment the ordinary, and orderly, process of a committal or trial. That consideration would apply with particular force “where proceedings are in charge of a judge who at this very moment is beginning the trial”: Anderson v Attorney-General for New South Wales.[12] Such fragmentation should be avoided unless there are exceptional or special circumstances: Rozenes v Beljajev;[13]
(c) The principles concerning the circumstances in which it is appropriate to grant declaratory relief as mentioned above are also relevant to whether an order in the nature of certiorari would be granted by this Court in respect of the Magistrates’ Court’s decisions to set aside the witness summonses: Rozenes v Beljajev at 571;
Actual or apprehended bias
[10] Williams 23.05.75
[11](1978) 142 CLR 1 per Gibbs ACJ at 25; Mason J held, at 92 that an applicant for a declaration relating to a committal must show some special reason.
[12](1987) 10 NSWLR 198 at 200 per Kirby P.
[13][1995] 1 VR 533 at 571-2.
VicRoads further submitted that:
(a) In determining whether a judicial officer should be disqualified by reason of the appearance of bias the test to be applied is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide: Michael Wilson & Partners v Nicholls.[14] The test is objective and it should be ‘firmly established’[15].
[14](2011) 244 CLR 427 per Gummow A-CJ, Hayne, Crennan and Bell JJ at [31]
[15]eg Laws v Australian Broadcasting Tribunal (1990) 170 CLR 70, per Gaudron and McHugh JJ at 100
(b) In Michael Wilson & Partners the High Court held that the making of several ex parte orders by the trial judge, and his direction on each occasion that those applications, the material in support, and the reasons for making the orders and the orders themselves not be disclosed to one side of the litigation did not found a reasonable apprehension of prejudgment of the issues that were to be fought at trial. The court noted that in none of those applications was the judge required to make, nor did he make, any determination that was to be decided at trial. That is also true of the decision of Lethbridge M in the present case;
(c) The fixing of a date for a special mention is an administrative matter primarily concerning the efficient use of court time, and does not involve determination of any substantive issues. The stay of compliance with a summons in order to have the validity of the summons determined at such a mention hearing also is a mere administrative convenience and does not determine or prejudice the rights of any party. All it does is enable the court to retain control of the process of summonses to witnesses, all of which is undertaken in the name of the court;
(d) No point can be properly taken that witnesses should not have been excused the inconvenience of attending court while the summonses to which they were to respond were under challenge. No basis for requiring the witnesses to attend, notwithstanding that their summonses were under challenge, was articulated before the magistrate;
(e) A fair-minded lay observer would not reasonably apprehend, on this basis, that a magistrate might not bring an impartial and unprejudiced mind to the resolution of the question the magistrate was required to decide;
(f) Western Truck was notified on 5 March 2013 of the request by VicRoads on 4 March to have the time for compliance with the witness summonses extended to 22 March 2013. At no time before the hearing on 15 March did Western Truck raise any objection, with the exception of the letter of 5 March 2013 to the Chief Magistrate, which was not copied to VicRoads at the time, and relied on in the bias application, (exhibit ‘KMN-19’ to Ms Navarro’s affidavit). That letter appears to express the high point of the bias application. However, it raises no point of substance;
(g) The following table shows the date and exhibit number of relevant correspondence between VicRoads and the Magistrates’ Court, and the corresponding date and exhibit number of the correspondence by which Western Truck Towing was notified of the substance of VicRoads’s correspondence:
VicRoads correspondence Correspondence to Western Truck Date Exhibit No. Date Exhibit No. 18 Feb 13 KMN-5 19 Feb 13 KMN18 21 Feb 13 KMN-7 21 Feb 13 KMN-8 22 Feb 13 KMN-11 22 Feb 13 KMN-11 4 Mar 13 KMN-15 5 Mar 13 KMN-16
The witness summonses
VicRoads submitted in relation to the challenge to the disposition by the Magistrate of a number of witness summonses, as follows:
(a) The principles in respect of an application to set aside a witness summons in the Magistrates’ Court were summarised by J Forrest J in Commissioner of the Australian Federal Police v Magistrates' Court of Victoria,[16] in a passage relied on by Mr Nekvapil for VicRoads on 15 March 2013:
[16][2011] VSC 3 at [28].
The following principles apply in determining whether a party is entitled to access documents the subject of a subpoena:
(a)it is necessary for the party at whose request the witness summons was issued to identify expressly and precisely the legitimate forensic purpose for which access to the documents is sought;
(b)the identification of such a legitimate forensic purpose is to be considered by the court without inspecting the documents sought to be produced;
(c)the applicant for the witness summons must also satisfy the court that it is “on the cards”, or that there is a “reasonable possibility”, that the documents sought under the subpoena “will materially assist the defence”.
(d)a “fishing expedition” is not a legitimate forensic purpose and will not be permitted;
(e)the relevance of a document to the proceeding alone will not substantiate an assertion of legitimate forensic purpose. There is no legitimate forensic purpose if the party is seeking to obtain documents to see whether they may be of relevance or of assistance in his or her defence.
(f)a mere assertion of bad faith by an applicant or that something might be found demonstrating bad faith is not enough – the criteria set out in (c) must be satisfied.
(g)in criminal proceedings a “more liberal” view is taken by a court in respect of the application of the test. Special weight is to be given to the fact that the documents may assist the defence of the accused.
(h)where a party fails to demonstrate a legitimate forensic purpose, the court should refuse access to the documents and set aside the witness summons.
(b) As identified in principle (a), and as has been held in several cases:
It is the duty of the court, where the issue is raised, to require the party calling on a subpoena to produce documents to identify expressly and precisely the legitimate forensic purpose for which access to the documents is sought and to refuse access unless such an identification is made.[17]
[17]Ali Tastan (1994) 75 A Crim R 498 at 504
And:
In my view, when a trial judge is faced with a subpoena of this kind, he should require counsel for the accused to identify expressly and with precision the legitimate forensic purpose for which he seeks access to the documents, and the judge should refuse access to the documents until such an identification has been made. [18]
(c) This procedure was adopted in the present case. Once there was a failure to identify a legitimate forensic purpose, the summonses could not stand.
(d) The magistrate additionally set aside three summonses directed to persons who were not employees of VicRoads. The court is under a duty to control its processes in relation to summonses to produce documents. No legitimate forensic purpose being identified, it was proper to set these summonses aside also;
Abuse of process
[18]Hunt J in R v Saleam (1989) 16 NSWLR 14 at 18
In relation to its abuse of process submissions, VicRoads submitted:
(a) It is the inherent power which any court of justice must possess to prevent misuse of its procedure in a way which, although not inconsistent with the literal application of its procedural rules, would nevertheless be manifestly unfair to a party to litigation before it, or would otherwise bring the administration of justice into disrepute among right-thinking people: Hunter v Chief Constable of the West Midlands Police;[19]
[19][1982] AC 529 at 536 per Lord Diplock
(b) The High Court discussed the scope of abuse of process in Michael Wilson & Partners[20]:
[20][2011] HCA 48, per Gummow ACJ, Hayne, Crennan and Bell JJ at paras 89 and 90 (citations omitted)
As the majority pointed out in Batistatos v Roads and Traffic Authority (NSW), “[w]hat amounts to abuse of court process is insusceptible of a formulation comprising closed categories”. In Ridgeway v The Queen, Gaudron J noted that the concept extended to proceedings “instituted for an improper purpose”, and to proceedings that are “seriously and unfairly burdensome, prejudicial or damaging” or “productive of serious and unjustified trouble and harassment”. In Rogers v The Queen, McHugh J concluded that, although the categories of abuse of process are not closed, many cases of abuse can be identified as falling into one of three categories: “(1) the court's procedures are invoked for an illegitimate purpose; (2) the use of the court's procedures is unjustifiably oppressive to one of the parties; or (3) the use of the court's procedures would bring the administration of justice into disrepute.”
One recognised class of abuse of process is where proceedings are instituted against a party in a second forum when there are proceedings against that party pending in another and the continuance of the second would be an abuse of the process of the first. In such a case, the continuance of the second proceedings would be an abuse if it would be unjustifiably oppressive to the party that is named as defendant in both forums.
(c) The proceeding brought by Western Truck appears to have been brought for the improper purpose of frustrating the prosecution to which Western Truck is subject. That this is so can be inferred from the following facts:
(i) The delay of a month from the date of the Magistrate’s ruling before commencing the proceeding;
(ii) Western Truck waited until it was due to file its outline of argument on the central legal issue in the prosecution to issue, instead, this proceeding;
(iii) Western Truck has not filed an affidavit in support of either its originating motion or its summons;
(iv) The proceeding seeks to have this Court determine an issue already joined in the Magistrates’ Court prosecution – namely the validity of the condition on the licences held by Western Truck under the Act.
(d) The proceeding is an abuse of process because it is foredoomed to fail;
(e) The proceeding seeks to have this Court determine an issue already joined in the Magistrates’ Court prosecution – namely the validity of the condition on the licence held by Western Truck under the Act;
(f) Accordingly, the Court should at this stage give judgment in the proceeding generally under rule 23.01 Supreme Court (General Civil Procedure) Rules 2005, and also under s63 of the Civil Procedural Act 2010.[21]
[21]Waddington v Magistrates’ Court of Victoria & Kha [2013] VSC 101 at [8] to [14]
Discretionary Considerations
VicRoads submitted that there were discretionary factors to be taken into account and when taken into account they supported a summary determination of the Western Truck originating motion, as follows:
(a) The prosecution that underlies this proceeding is due to commence on Monday 6 May pursuant to a special fixture. Allowing this proceeding to remain on foot is apt to cause mischief by placing unnecessary pressure on the criminal courts;
(b) The legal issue (that is the issue agitated in paragraph 12 of the originating summons) at the heart of the prosecution is of importance, and should be resolved in the proper forum, namely the criminal courts, as soon as possible;
(c) Insofar as the proceeding now seeks to challenge the validity of the condition on the licence held by Western Truck, the plaintiff could have challenged that condition administratively when it was imposed, but chose not to do so;
(d) There is a significant public interest in the speedy resolution of accusations of crime, and civil proceedings ought not to be used to delay this: see the observations of Jenkinson J said in Seymour v Attorney-General (Cth)[22] (in the context of a review of committal proceedings);
[22](1984) 4 FCR 498, at 501, Fox J concurring and Beaumont J agreeing.
(e) The proceeding is apt to fragment the criminal justice process;
(f) The plaintiff delayed for a month to bring this proceeding, and only brought it when it was required to file its own outline of argument in the Magistrates’ Court. The plaintiff’s delay should not now be used to further delay the proceeding, in which all the usual protections, including rights of appeal, are afforded;
(g) The failure to file affidavit material in support of the Originating Motion casts doubt on the purpose for which the proceedings were commenced.
Submissions by Western Truck
Western Truck submitted in relation to the abuse of process and bias matters:
(a) There is no basis for the submission that the application for judicial review is bound to fail. The Plaintiff is required to present an arguable case for review, and it has done so. The mere fact that VicRoads has to refer to authority in the manner that it has in this application requires an assessment of the grounds of the application for judicial review, which should be left for consideration by the trial judge;
(b) Whether or not the learned Magistrate exhibited actual or ostensible bias is an issue that should be left to the trial judge to determine, because there is a basis for the application both in fact and law. In particular, there were private communications with the Magistrate by VicRoads behind the back of the Plaintiff, and decisions were made involving the Plaintiff during those discussions, without the knowledge or consent of the Plaintiff. [23] It is then for the trial judge to determine whether or not the complaint of bias is made out. VicRoads is in fact inviting those matters to be determined on a preliminary basis. Furthermore, all the material is not yet in for the purposes of a proper assessment of the application for judicial review at this juncture;
[23] Kanda v Government of Malaya [1962] AC 322 at 337 in which it was held that a Judge must not hear evidence or receive representations from one side behind the back of the other. See also R v. Sussex Justices; ex parte McCarthy [1924] 1 KB 256; R v. Magistrates Court at Lilydale; ex parte Ciccone [1973] VR 122; Re JRL; ex parte CJL (1986) 161 CLR 342 at 346, 347 per Gibbs CJ and at 350 per Mason J.; Kennedy v Cahill (1995) 118 FLR 60; R v Fisher (2009) 22 VR 343 at 351-352.
Western Truck submitted in relation to the VicRoads attack on the declaratory relief sought:
(a) Pursuant to paragraph 12 of the originating motion, the Plaintiff seeks a declaration on a question of law. The Plaintiff does not seek relief as asserted by VicRoads, he seeks a merely declaratory judgement on the principle legal issue that concerns each and every one of the charges in the court below. In seeking the declaration, the Plaintiff is simply utilising the opportunity presented by being in the Supreme Court. The Plaintiff is surprised that VicRoads would object to this course of action, given that the declaration sought would assist in the resolution of the charges below. Pursuant to s. 30 of the Supreme Court Act 1986 it is to be noted that a proceeding is not open to objection on the ground that a merely declaratory judgement is sought;
(b) In relation to VicRoads submissions concerning the objection to the proceeding as one seeking to have a civil court determine an issue already before a criminal court, there was no dispute as to the case law outlined, but the matters raised were quite irrelevant to the whether or not the Plaintiff has the right to request a merely declaratory judgement as an adjunct to seeking other relief. Further, that the cases cited largely concerned declarations on questions of evidence and procedure, which is not the case here;
(c) The Magistrates’ Court has not yet commenced a hearing, and therefore there is no fragmentation of criminal proceedings, and nor can it sensibly be said that the lower court is seised of the legal issue upon which the declaration is sought.
Western Truck submitted in relation to VicRoads submissions relating to the question of whether there was any basis for a claim that the Magistrate was affected by actual or apprehended bias that:
(a) The submissions relate to matters which should form part of the material to be considered by the trial judge;
(b) None of the cases cited refer to circumstances like these, where there was improper communications between the solicitor for VicRoads, Ms Navarro, and the learned Magistrate which occurred several times without the knowledge of the Plaintiff, and the inferences which might be raised by those communications with respect to impartiality;
(c) One of the principle concerns of Western Truck is that under the circumstances, the learned Magistrate will not bring an impartial mind to the charges;
(d) That if Vicroads was suggesting that the application for the Magistrate to disqualify himself should have been made before the hearing on 15 March 2013, that by that time the damage had already been done, and it is irrelevant as to when the application to recuse was made. This was a reference to the point made by Vicroads in paragraph 34(f) above. It is appoint, as I apprehend it, directed to the failure to complain about the extension of time to comply with the witness summonses, which then leads into a reference to the allegation of apprehended bias;
Western Truck submitted in relation to VicRoads submissions as to the challenge in the originating motion and summons to the setting aside of the witness summonses, that:
(a) The submissions relate to matters which should form part of the material to be considered by the trial judge;
(b) Rather than Commissioner of the Australian Federal Police v Magistrates' Court of Victoria,[24] the appropriate authority is Johnson v Poppeliers,[25] although nothing was pointed out as different in the applicable principles to be derived;
(c) VicRoads could not suggest that the third party witness summons is not a live or competent issue upon which to seek relief by way of judicial review;
(d) In any event, that part of the Originating Motion which seeks relief with respect to the witness summonses, is based upon the fact that under the circumstances the decision on the material sought was infected by the bias claimed.
[24][2011] VSC 3 at [28].
[25](2008) 20 VR 92
With respect to the abuse of process submissions, Western Truck submitted:
(a) The submissions of VicRoads relate to matters which should form part of the material to be considered by the trial judge;
(b) In relation to the matters referred to above in paragraph 36(c):
(i) The delay of a month is irrelevant as Order 56 allows 60 days to commence proceedings and there is no factual basis for any negative inference that VicRoads can rely upon for bringing the application;
(ii) There is no factual basis for the assertion, and it is irrelevant, that Western Truck waited until it was due to file its outline of argument on the central legal issue in the prosecution to issue, instead, this proceeding;
(iii) Western Truck has explained why it filed no affidavit with the Originating Motion. That is, it was awaiting the transcript of the proceedings in the Magistrates’ Court to be transcribed;[26]
(iv) The proceeding seeks to have this Court determine an issue already joined in the Magistrates’ Court prosecution – namely the validity of the condition on the licences held by Western Truck under the Act.
[26]See affidavit of John Cameron Boyle sworn 30 April 2013, para 43.
In relation to the discretionary considerations identified by VicRoads, Western Truck submitted:
(a) The Plaintiff is not to be forced to defend a criminal prosecution before a particular Magistrate with respect to whom there is a real issue of bias;
(b) There is no proper basis for the submission as to resolution as soon as possible. The Plaintiff’s rights are not subsumed by the fiction of procedural speed;
(c) The submission that, insofar as the proceeding now seeks to challenge the validity of the condition on the licence held by Western Truck, the plaintiff could have challenged that condition administratively when it was imposed, but chose not to do so, is not relevant. The Plaintiff is not seeking judicial review of the condition or conditions imposed on the tow truck licence;
(d) In relation to the submission that there is a significant public interest in the speedy resolution of accusations of crime, and civil proceedings ought not to be used to delay this, this is irrelevant and the Plaintiff should not to be forced to defend a criminal prosecution before a particular Magistrate with respect to whom there is a real issue of bias;
(e) The proceeding is not apt to fragment the criminal justice process as the prosecution hearing has not commenced;
(f) There is no factual basis for the assertion that the plaintiff delayed for a month to bring this proceeding, and only brought it when it was required to file its own outline of argument in the Magistrates’ Court;
(g) The lack of an affidavit has been explained, and VicRoads has never been in doubt as to the substance of the application under Order 56.
The appropriate test for summary dismissal or stay
As Vickery J has recently noted in Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd,[27] (“Lysaght”) the Court has always possessed the power, in the exercise of its inherent jurisdiction, to stop the abuse of its process where it is being exploited for the airing of groundless claims. Dixon J in Dey v Victorian Railways Commissioners (“Dey”), observed:
The application is really made to the inherent jurisdiction of the court to stop the abuse of its process when it is employed for groundless claims.[28]
[27][2013] VSC 201 at [15] – [20].
[28]Dey v Victorian Railways Commissioners [1949] HCA 1; (1948) 78 CLR 62, 91.
However, even in these circumstances, the Court must proceed with due caution. Dixon J in Dey described the principle in the following way:
The principles upon which that jurisdiction is exercisable are well settled. A case must be very clear indeed to justify the summary intervention of the court to prevent a plaintiff submitting his case for determination in the appointed manner by the court with or without a jury. The fact that a transaction is intricate may not disentitle the court to examine a cause of action alleged to grow out of it for the purpose of seeing whether the proceeding amounts to an abuse of process or is vexatious. But once it appears that there is a real question to be determined whether of fact or law and that the rights of the parties depend upon it, then it is not competent for the court to dismiss the action as frivolous and vexatious and an abuse of process.
…
In Burton v. Shire of Bairnsdale [1908] HCA 57; (1908) 7 CLR 76, at p 2; [1908] HCA 57; 14 ALR 529, at p 34 , O'Connor J said: Prima facie every litigant has a right to have matters of law as well as of fact decided according to the ordinary rules of procedure, which give him full time and opportunity for the presentation of his case to the ordinary tribunals and the inherent jurisdiction of the court to protect its process from abuse by depriving a litigant of these rights and summarily disposing of an action as frivolous and vexatious will never be exercised unless the plaintiff's claim is so obviously untenable that it cannot possibly succeed.[29]
[29]Dey v Victorian Railways Commissioners [1949] HCA 1; (1948) 78 CLR 62, 91-92.
Various tests have been developed and applied by the Courts in dealing with summary judgment applications, whether in the exercise of the inherent jurisdiction or under various provisions of the Rules, including Order 23.01. In Charles Lloyd Property Group Pty Ltd v Buchanan (“Charles Lloyd”,)[30] Mukhtar AsJ referred to the various epithets that have been used to describe the “no real question to be determined” test described by Dixon J in Dey by equating it practically with a requirement that a case has to be “hopeless” or “bound to fail” or “beyond argument” before the summary judgment procedure will be invoked.
[30] Charles Lloyd Property Group Pty Ltd v Buchanan [2013] VSC 148 (Revised 5 April 2013) [49].
However, ultimately each formulation of the test may be seen as sourced from and reflecting the fundamental tenets described by Dixon J in Dey. The case recognised the need for a test to reconcile the tension between the two elements identified, namely: on the one hand the need to provide a facility for a court to stop the abuse of its process when it is engaged to determine a groundless claim; and on the other hand the need to preserve the rights of litigants to submit their cases for determination by a court possessed of the necessary jurisdiction.
Mukhtar AsJ in Charles Lloyd also observed that allied with the approach in Dey were these well-established principles, which apply to summary judgment applications brought under the Rules:
First, exceptional caution was required especially where the outcome might turn on resolution of some disputed issues of fact. That is because facts adduced at trial might cast light and colour upon the resolution of legal issues. Secondly, and more recently, from Manderson M&F Consulting v Incitec comes the warning that summary judgment applications involve considerations extending beyond an analysis of the sufficiency of the pleadings in the case. Thirdly, if the dispositive facts were in, then it was no barrier to granting summary judgment if the Court had to undertake a comprehensive legal analysis to show that a party did not have an arguable case.[31] [Citations omitted]
[31]Charles Lloyd Property Group Pty Ltd v Buchanan [2013] VSC 148 (Revised 5 April 2013) [50].
I will not stay to reflect on the application of s 63 of the Civil Procedure Act (“CPA”). I pointed out to counsel for VicRoads the decision of the Court of Appeal in Karam v Palmone Shoes Pty Ltd,[32] (“Karam”) and the reference to the Court of Appeal (pursuant to s 17B (1) of the Supreme Court Act 1958) made by Vickery J in Lysaght of the question of the test to apply under s 63 of the CPA. He (Counsel for VicRoads) conceded the for present purposes the test I should apply is the test propounded in Karam, as follows (at [45] :
There is then the question of summary judgment. Since the coming into force of s 63 of the Civil Procedure Act 2010, the test for summary judgment in favour of a plaintiff in a civil proceeding has been whether a defence or part of it ‘has no real prospect of success’. In terms, it is a little different to the criterion under Rule 22.02 of the Supreme Court (General Civil Procedure) Rules 2005, of whether the defendant has no defence. But the change in terms was not intended to establish a new or different test; rather to express more accurately the way in which the rule had been interpreted by the courts. It remains, as the High Court said in Fancourt v Mercantile Credits Ltd, that the power to order summary judgment is to be exercised sparingly and not ‘unless it is clear that there is no real question to be tried’. Accordingly, we agree with the judge that the Magistrate correctly identified the test for summary judgment as being that it should only be granted if it is clear there is no real question to be tried.
[32][2012] VSCA 97.
Decision
Most of the legal principles applicable to each element or ground for review identified in the originating motion are adequately identified in the submissions of the parties that I have set out above. I will, however, refer at some length to the cases to which Counsel for Western Truck referred as to the significance of the communications, both by telephone and by email, that passed between Ms Navarro and officers of the Melbourne and Sunshine Magistrates Courts, which were not copied to the solicitor for Western Truck, but were subsequently disclosed. In particular the communications that resulted in the mention date of 15 March 2013 being fixed by the Court for the hearing of the application to set aside the witness summonses and the communication that resulted in the extension of the time for the VicRoads witnesses to respond to the summonses.
Apprehension of Bias
In his brief oral submissions, Counsel for Western Truck, Mr Billings, placed all his emphasis on the grounds of review centred around the apprehension of bias displayed, he submitted, by the Magistrate in fixing a date for the hearing of VicRoads application to set aside the witness summonses, and extending the date for compliance with those summonses, without reference to the solicitor for Western Truck.[33] He particularly referred to the decision of the Privy Council in Kanda v Government of the Federation of Malaya[34] (“Kanda”) (and the other cases referred to in footnote 23 above). In Kanda Denning, Hodson and Devlin LJJ had to consider whether Inspector Kanda had a reasonable opportunity of being heard before an adjudicating officer on whose findings the Commissioner of police dismissed him. The adjudicating officer had previously received and read a report of a Board of Inquiry which had made findings adverse to the Inspector. They noted the distinction between the right to be heard and the rule against bias. In particular, they said that “the question is whether the hearing by the adjudicating officer was vitiated by his being furnished with the report without Inspector Kanda being given an opportunity of correcting or contradicting it. They said (at 337-8):
The rule against bias is one thing. The right to be heard is another. Those two rules are the essential characteristics of what is often called natural justice. They are the twin pillars supporting it. …They have recently been put in two words, Impartiality and Fairness. But they are separate concepts and are governed by separate considerations. …
It follows, of course, that the judge or whoever has to adjudicate must not hear evidence or receive representations from one side behind the back of another. The court will not inquire whether the evidence or representations did work to his prejudice. Sufficient that they might do so. No one who has lost a case will believe he has been fairly treated if the other side has had access to the judge without his knowing.
[33]Counsel for Western Truck also placed reliance on all of his written submissions, which I have recorded above.
[34][1962] AC 322 at 337.
In R v Fisher,[35] Fisher appealed against his sentence given for convictions (following a plea of guilty) on counts of obtaining financial advantage by deception. The grounds of appeal were that the judge received out of court communications via email messages from the prosecution to the judge's associate concerning the whereabouts of Fisher's daughter. That was relevant because in the course of the appellant's plea in mitigation it was submitted that the appellant was the "sole carer" of his daughter Katie. The sentencing judge then adjourned the plea to allow the appellant to be assessed for an intensive correction order and granted the appellant bail. Subsequently, email correspondence sent between the Crown and the associate to the sentencing judge revealed that the child was in China, and had been at the time of the plea hearing at which bail was granted. There was an exchange of emails not shared with the representatives of Fisher, until later. Fisher submitted the communication sent to the judge by the Crown amounted to a fundamental procedural irregularity.
[35](2009) 22 VR 343.
The Court reviewed the authorities applicable. I will not refer to all of them, but note that in the course of its reasons made the following relevant observations:
[20] It is an undoubted principle that a judge's decision should be made on the basis of the evidence and arguments in the case, and not on the basis of information or knowledge which is acquired out of court. In Re Media, Entertainment and Arts Alliance; Ex parte Hoyts Corporation Pty Ltd, 1 Mason CJ and Brennan, Deane, Dawson and Gaudron JJ described it as an aspect of "the rule against bias". Their Honours said that this aspect of the rule is similar to the rule of procedural fairness, but not identical because the question is whether in the circumstances, the parties or the public "might entertain a reasonable apprehension that information or knowledge which has been independently acquired will influence the decision".
[21] In dealing with this ground we must ask whether the trial judge's decision -- which we treat for this purpose as either the revocation of bail or the sentence -- fails the now well-established test of whether "a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge was required to decide"….
[23] It was conceded by the appellant that this is not a case like R v Wise, as the material submitted to the judge via the email was fully disclosed to counsel for the appellant. We are not satisfied that the email communications give rise to a procedural irregularity of the kind described in Wise. That case is concerned with a breach of the hearing rule. In the present case, the fact of the emails was fully disclosed to the appellant and the appellant was given an opportunity to comment at the contested mention (see discussion below).
[27] In Re JRL, Gibbs CJ stated that:[36]
[36]A reference to Re JRL; Ex parte CJL (1986) 161 CLR 342 at 346.
It is a fundamental principle that a judge must not hear evidence or receive representations from one side behind the back of the other: see Kanda v Government of Malaya. McInerney J stated the practice as it is generally understood in the profession in R v Magistrates' Court at Lilydale; Ex parte Ciccone as follows:
"The sound instinct of the legal profession -- judges and practitioners alike -- has always been that, save in the most exceptional cases, there should be no communication or association between the judge and one of the parties (or the legal advisers or witnesses of such a party), otherwise than in the presence of or with the previous knowledge and consent of the other party. Once the case is under way, or about to get under way, the judicial officer keeps aloof from the parties (and from their legal advisers and witnesses) and neither he nor they should so act as to expose the judicial officer to a suspicion of having had communications with one party behind the back of or without the previous knowledge and consent of the other party. For if something is done which affords a reasonable basis for such suspicion, confidence in the impartiality of the judicial officer is undermined."
[30] The principles espoused by the majority of the High Court in Re JRL were applied in the context of emails in the recent case of Carbotech-Australia Pty Ltd v Yates. In Carbotech, an order was made by consent to refer a question (namely whether two products were similar) in the proceedings to a referee. The referee concluded that the products were "very similar in composition".
[31] The plaintiffs moved for adoption of the referee's report, but the associate judge dismissed the motion for adoption, holding that, by reason of some 13 email communications that passed between the referee and the plaintiffs' solicitors to the exclusion of solicitors for the defendants, there was a reasonable apprehension of bias on the part of the referee such as to require the report to be rejected.
[32] Relevantly, his Honour held that it was the fact of the apparently routine passage of emails between the referee and the solicitors for only one party, and not the content of the emails as such (as they related only to procedural/administrative matters), that constitutes the ground for apprehended bias in the mind of an objective observer or disinterested bystander.
[33] The plaintiffs appealed from his decision to the Supreme Court of New South Wales on the basis that, inter alia, his Honour erred in holding that the communications gave rise to a reasonable apprehension of bias.
[34] On appeal Brereton J, in considering the applicable principles, stated that:
The "twin pillars" of the rules of natural justice are the hearing rule (audi alteram partem) and the bias rule (nemo debet judex esse sua in propria causa). However ... they may overlap: a persistent failure to hear one party might establish an apparent lack of impartiality as well as a breach of the hearing rule.
[35] After making reference to Re JRL, Brereton J stated the applicable law in the following terms:
The passages to which I have referred in JRL establish that while the (mere) fact that an ex parte communication takes place is an important one, it is not decisive, and closer examination may show that the informed reasonable lay observer might not form an apprehension of bias despite such communications. It will depend on the facts of each case whether communications between a judicial officer and one party to the exclusion of the other give rise to a reasonable apprehension of bias, and one must look to the whole of what happened to establish whether such an apprehension should be inferred.
[36] His Honour then distinguished the case before him from one in which a judge has received an ex parte communication. He considered that where a judge is concerned, the mere fact of an ex parte communication is of importance, though not decisive, because it is such an obvious departure from the norms of behaviour understood by judges and the legal profession alike. The same cannot be said of a referee who is not a lawyer let alone a judicial officer, who is not required to conduct the proceedings as if he were a judge, and who may be quite unfamiliar with the practices and protocols of lawyers.14 His Honour therefore stated that it was necessary, given the case before him involved a referee, to consider the contents of the ex parte communications and to consider "whether the reasonable informed bystander would apprehend bias, knowing of their contents", and ultimately held that no reasonable apprehension of bias arose.
[37] The present case is unlike Carbotech-Australia Pty Ltd v Yates, as it involved email communications with, and from, an associate acting on behalf of a judicial officer. But there is no inflexible rule that any communication between the judge and a party will necessarily disqualify the judge from making a decision.
[38] It is "important to bear in mind the characteristics of modern litigation" as Kirby and Crennan JJ said in Concrete Pty Ltd v Parramatta Design and Development Pty Ltd.16 It is commonplace for judges, whether in the course of case management or otherwise, to be provided with bundles of materials, documents for tender, affidavits, and emails not all of which will be tendered or read. But in all such cases the party providing them is bound to simultaneously provide them to the other side. The circumstances in which direct communications may be made to the judge's associate are subject to important qualifications. Written communications between a party to litigation and the judge's associate should normally be confined to matters concerning practice or procedure. Communications including emails containing allegations, matters of substance or requests for substantive advice should not be forwarded to a judicial officer without the party's express agreement (save in an exceptional case warranted for example by an ex parte application).
[39] Unless the subject of express prior consent of the other parties, written communications should not include information or allegations which are material to the substantive issues in the litigation. In all circumstances, the other parties to the litigation should be copied in on any such correspondence. If a communication which apparently fails to comply with those requirements is received in chambers, it would be for judicial staff promptly to inquire whether the other party has been notified before engaging in any further exchanges with the sender. The ubiquity and prevalence of informal email communications between courts and litigants entails many advantages but, unless approached with an appropriate protocol by litigants and within judges' chambers, presents potential risks of the errors demonstrated in the present case.
[40] A failure to strictly comply with such procedures threatens the integrity of the proceedings and gives rise to the risk of an allegation of at least a perception of bias. In Ebner v Official Trustee in Bankruptcy Gleeson CJ, McHugh, Gummow and Hayne JJ said in their joint judgment that "the apprehension of bias principle admits of the possibility of human frailty" and requires two steps:
First, it requires the identification of what it is said might lead a judge (or juror) to decide a case other than on its legal and factual merits. The second step is no less important. There must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits.
(emphasis added, footnotes omitted)
The communications with which I am concerned dealt with nothing of substance that related to the matters in dispute. They were entirely related to obtaining a date for a mention. As the Magistrate observed in his reasons:
The return of subpoenas, which are Court orders, is an administrative issue involving listings and the efficient use of Court time. The Court routinely fixes matters for special mention and on occasion does so on an ex parte basis as part of modern case management.
Looking at the first of the two steps referred to by the High Court in Ebner v Official Trustee in Bankruptcy, there were no communications on matters of substance, but only on administration and the efficient use of court time. One cannot identify anything in what occurred and was communicated that might lead a Magistrate to decide a case other than on its legal and factual merits.
Moreover, if there were a real concern as to the date for the hearing, or the date for the attendance of the witnesses, there was ample opportunity for Western Truck itself to raise the matter by way of mention and have the dates varied if that were appropriate.
Turning then to the second step, there must be an articulation of the logical connection between the matter and the feared deviation from the course of deciding the case on its merits. In this case there is no logical connection between the scheduling of the hearing on a date without consulting Western Truck and some fear of prejudgment by the Magistrate of the substance of the application to be made on that date. Close examination of the evidence of the communications to which I have referred shows that the informed reasonable lay observer could not form an apprehension of bias. As Brereton J observed in Carbotech-Australia Pty Ltd v Yates[37] , it “will depend on the facts of each case whether communications between a judicial officer and one party to the exclusion of the other give rise to a reasonable apprehension of bias, and one must look to the whole of what happened to establish whether such an apprehension should be inferred”.
[37][2008] NSWSC 540 at [52].
Looking at all the facts, and having regard to the authorities to which I was referred, I have formed the firm view that there is no logical connection between the impugned communications and the ‘the feared deviation from the course of deciding the case on its merits’.
I should add, for what it is worth, that seems clear that VicRoads had no role in the selection of the date of 15 March either. It appears to have been entirely a matter determined by the Court.
The Witness Summonses
The principles identified both in submissions to me by VicRoads, and in the submissions to the Magistrate, are not contested by Western Truck.[38] No submissions were made before the Magistrate with respect to the summonses directed to VicRoads Staff. Even had they been, no basis to challenge the decision of the Magistrate was advanced before me and I can see none. Essentially, the only basis for maintaining the challenges to the dismissal of the summonses was that the decision was materially affected by the apprehended bias claim, and should proceed as a part of the material to be considered by the Judge. Given my finding on the apprehended bias claim, the challenge to the dismissal of the summonses must be dismissed as well.
[38]See paragraph 35 above.
Abuse of Process
Insofar a VicRoads claim to dismiss the proceeding as an abuse of process depends on establishing a collateral or ulterior purpose in its commencement, that is, to delay or frustrate the prosecution due to commence next Monday, in the circumstance that I have decided that there is no viable ground of review of the Magistrates decision not to disqualify himself from proceeding with his hearing of the application to set aside the witness summonses, it is unnecessary to decide whether there is an abuse in that sense.
Insofar as the abuse of process submissions depend on the ground that there is no basis to the claim of apprehended bias, because I have found that contention correct, it follows that the originating motion in its entirety should be dismissed.
Declaratory Relief
Mr Billings conceded that Western Truck is using the opportunity presented by being in the Supreme Court to agitate the matter of declaratory relief in paragraph 12 of the originating motion.[39] It is an issue in the prosecutions and in the absence of a viable basis to challenge the decision of the Magistrate, it is inappropriate that the proceeding continue. It will, in any event, have the tendency to frustrate the conduct of the prosecution. It is a matter that is perfectly appropriate to found a review of the decision of the Magistrate on the prosecutions, in the fullness of time, if there is any basis for it. It is not a matter that was argued before me, and quite rightly so, as its presence in the originating motion is entirely dependant on the ground of apprehended bias proceeding. As I have determined that ground is bound to fail and must be dismissed, so to must the declaratory relief be dismissed.
[39]See paragraph 39(a) above.
Conclusion
The findings I have made regarding the absence of a basis for the claim that the Magistrate’s decision to set aside the witness summonses on 15 March 2013 was affected by apprehended bias undermines all of the grounds for relief in the originating motion in this case.
For the above reasons, and because of the discretionary considerations identified in the submissions by VicRoads,[40] and the potential for the proceeding if merely stayed under Rule 23.01 to act as a spectre overhanging the prosecutions due to commence on Monday next, the proceeding should be dismissed in its entirety pursuant to s 63 of the Civil Procedure Act 2010. It is in my view clear that there is no real question to be tried.
[40]See paragraph 37above, all of which seem to me to be valid.
Schedule 1
Reasons for decision of Magistrate Lethbridge on 15 March 2013 refusing to disqualify himself
This matter was listed for special mention this morning as I understood it, to determine the validity of a number of witness summonses that have been issued by the defence. Mr. Billings for the accused now makes application that I disqualify myself from hearing this case on the basis of bias. I have heard no evidence and know nothing about what this case involves, save for the fact that I am told a similar case has come before me for special mention recently and orders were made regarding subpoenas or witness summonses. As I understand it, the accused in this case has issued 15 witness summonses against Vic Roads staff, including the instructing solicitor in this prosecution, compelling those witnesses to attend Court on a special mention date. And again, as I understand it, the summonses were returnable today 15 March 2013. On 4 March 2013 Vic Roads wrote to the Court stating it intended to make application to have the subpoenas overturned and requesting the Court extend the time for compliance with summons to 22 March 2013 in order to avoid the 15 witnesses having to attend Court, pending the decision as to whether the summonses should be set aside or not. I note that letter was copied to the accused care of its lawyers. I acceded to the request in chambers on the basis that it was reasonable and sensible and would not prejudice any party. I noted the special mention on 15 March was only booked in for a half day and I considered the argument and decision relating to the validity of the subpoenas would take at least all that time. In those circumstances, it did not seem to be in the interest of justice or to assist the effective, prompt and economical determination of the matter to have 15 witnesses waiting around at Court on 15 March. I note the defence were apparently copied into all correspondence and could have listed the matter for special mention at any time to raise its concerns. The return of subpoenas, which are Court orders, is an administrative issue involving listings and the efficient use of Court time. The Court routinely fixes matters for special mention and on occasion does so on an ex parte basis as part of modern case management. Turning to the application, a magistrate must not hear or continue to hear a case if in all the circumstances the parties or the public might entertain a reasonable apprehension that the magistrate may not bring an impartial or unprejudiced mind to the resolution of the questions for determination. The test is applied from the standpoint of a fair minded and reasonable observer who was acquainted with the relevant circumstances. Application of the principle requires two steps, first the identification of what is said might lead to a judge or magistrate to decide a case other than on its legal and factual merits and second the articulation of a logical connection between that matter and the feared deviation from the course of deciding the case on its merits. In my view neither of those steps are satisfied. Referring to the High Court Authority of British and American Tobacco referred to by counsel for the prosecution, when suspected pre judgement of an issue is relied upon to ground the disqualification of the decision maker. What must be firmly established is a reasonable fear that the decision maker’s mind is so prejudiced in favour of a conclusion already formed, that he or she will not alter that conclusion irrespective of the evidence or arguments presented to him or her. The requirement that an apprehension of bias based on judicial conduct be firmly established is consistent with the most recent decisions of this Court, that being the High Court and gives content to the requirement that an apprehension of bias in that class of case be reasonable. I cannot and have not formed any conclusions. I essentially know nothing about what this case involves. There is no basis for a fair minded observer to conclude that I have favoured any conclusion. The application that I disqualify myself is refused.
Schedule 2
Reasons for setting aside Witness Summonses directed to VicRoads personelToday is the return of 14 subpoenas or witness summonses issued against the staff of VicRoads. The summonses are very broad, the summonses each order a witness ‘attend to give evidence and produce at the hearing any and all correspondence, including, but not limited to letters, memorandums, emails, facsimiles, telephone records, in relation to the following tow truck licenses.’ And then I think seven tow truck licenses are listed, ‘passing between yourself and (a) any and all employees of Victoria Police, and/or,’ a further 18 individuals. Paragraph 2 then seeks ‘any an all correspondence including, but not limited to letters, advices, memorandums, emails, facsimiles, telephone records, notes, and the like.’
VicRoads now makes application to have the summonses set aside on the basis of relevance and lacking a legitimate forensic purpose. The accused is represented by Mr Billings, who advises he will not make any submissions in opposition to the application. The accused is charged with one count, namely ‘the corporate accused on 1 August 2012 at St Albans, being the holder of a tow truck license, did fail to comply with a condition to which the license was subject. Particulars. The corporate accused on 1 August 2012 did fail to comply with regular tow truck license condition 2(a) of regular tow truck license number TOW131, by that tow truck, (a) attending a road accident scene within the controlled area for the purpose of lifting and carrying or lifting and towing a damaged or disabled motor vehicle. (b) Lifting and carrying or lifting and towing a damaged or disabled motor vehicle, from a road accident scene within the controlled area.’
I accept the prosecution’s submission that the issues of fact and law to be determined are these: (1) Did Western Truck Towing tow truck number TOW131 on 1 August 2012, (a) attend a road accident scene within a controlled area for the purpose of lifting and carrying, or lifting and towing a damaged or disabled motor vehicle, (b) tow a damaged or disabled motor vehicle from the road scene. (2) If yes to (1), did this constitute a breach of condition 2(a) on Western Truck Towing license for TOW131. (3) If yes to (2), were the conditions validly imposed under section 25 subsection 1 of the Accident Towing Services Act 2007.
In the Commissioner of the Australian Federal Police v Magistrates Court of Victoria and Ors, [2011] VSC 3, Justice Forest enunciated principles relevant to the production of the documents by a witness pursuant to a subpoena. I think it was at paragraph [28]. ‘The following principles apply in determining whether a party is entitled to access documents the subject of a subpoena. (a) It is necessary for the party at whose request the witness summons was issued to identify expressly and precisely the legitimate forensic purpose for which access to the documents is sought. (b) The identification of such legitimate forensic purpose is to be considered by the court without inspecting the document sought to be produced. (c) The applicant for the witness summons must also satisfy the court that it is on the cards, or that there is a reasonable possibility that the document sought under the subpoena will materially assist the defence. (d) A fishing expedition is not a legitimate forensic purpose, and will not be permitted. (e) The relevance of a document to the proceeding alone will not substantiate an assertion of legitimate forensic purpose. There is no legitimate forensic purpose if the party is seeking to obtain documents to see whether they may be of relevance or of assistance in his or her defence. (f) A mere assertion of bad faith by an applicant, or that somebody might be found demonstrating bad faith, is not enough, the criteria set out in (c) must be satisfied. (g) In criminal proceedings a more liberal view is taken by a court in respect of the application of the test, special weight is to be given to the fact that the documents may assist the defence of the accused. (h) Where a party fails to demonstrate a legitimate forensic purpose, the court should refuse access to the documents and set aside the witness summonses.’ The accused has not identified expressly and precisely the legitimate forensic purpose for the summonses issued. Indeed it has failed to demonstrate a legitimate forensic purpose at all. In these circumstances the witness summonses issued to the following people are set aside, Katherine Navarro, Lindy Pascoe, Don Leone, Gary Liddle, Richard Bell, George Mitrov, Nick Asenzo, Rodney Mather, Nial Finegan, Peter Irvin, Murray Michael Lavale, Alan Ferriere, Darrell Gascoyne, Marcus Nash, and Scott Douglas. Is there anything further?
Schedule 3
Reasons for setting aside Witness Summonses directed to non-VicRoads personel
After the last ruling that I made a few minutes ago, the prosecution seek to have a further three summons set aside. The respondents in those summonses are not Vic Roads officers, but the contents of the subpoenas or summonses are identical, or more or less identical, to the summonses that I set aside. Mr Billings has sought to be heard in relation to the standing of the prosecutor to object or to seek to have these summonses set aside. In my view it is not necessary for me to make a ruling regarding the prosecutor’s standing to make that application, as I consider the court has the power to control its own orders, and that the court can set aside a witness summons on its own motion. By parity of reasoning, the fact that I have already set aside 14 summonses in near identical terms must mean that these summonses should also be set aside for the same reasons. Accordingly, the witness summonses issued to Church, Sharp, and Mercovich are also set aside. Is there anything further?