White v Ropata
[2017] VSC 518
•4 September 2017
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S CI 2016 4886
| GREGORY WHITE | Plaintiff |
| v | |
| STEWART ROPATA | First Defendant |
| THE MAGISTRATES’ COURT OF VICTORIA | Second Defendant |
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JUDGE: | LANSDOWNE AsJ |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 21 August 2017 |
DATE OF JUDGMENT: | 4 September 2017 |
CASE MAY BE CITED AS: | White v Ropata & anor |
MEDIUM NEUTRAL CITATION: | [2017] VSC 518 First Revision: 4 September 2017 |
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JUDICIAL REVIEW – Magistrates’ Court order made by a judicial registrar - some grounds for judicial review summarily dismissed – Trial on remaining grounds – Allegations of fraud not made out – No error in Judicial Registrar not adverting in his reasons to a matter not put by the plaintiff to the defendant in cross examination – Error of law on the face of the record by Judicial Registrar in making a finding in his reasons for which there was no evidence.
JUDICIAL REVIEW – Consideration of discretionary refusal of judicial review – Whether a more favourable outcome on rehearing reasonably possible – Failure to utilise other mechanisms for review and appeal – Magistrates’ Court Notice of Arbitration said arbitration would be conducted by a magistrate – Notice of Order Made ambiguous as to whether the arbitration was conducted by a magistrate or a judicial registrar – Plaintiff did not know that the arbitration had been conducted by a judicial registrar until after this proceeding commenced – Failure to seek review of the judicial registrar’s order by a magistrate not a reason to refuse judicial review – Plaintiff unrepresented and no evidence of any prejudice to the defendants by reason of plaintiff pursuing judicial review rather than appeal on a question of law – Facts in Kuek v Victoria Legal Aid and anor 3 VR 289 distinguished – Approach in Hoe v Manningham City Council [2013] VSC 195 applied – Judicial review granted – Magistrates’ Court Act 1989 (Vic) s 16K – Magistrates’ Court (Judicial Registrars) Rules 2015 (Vic), r 16.
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APPEARANCES: | Counsel | Solicitors |
| The Plaintiff appeared in person | ||
| For the First Defendant | Mr D J Staindl | Ligeti Partners |
| No appearance for the Second Defendant |
TABLE OF CONTENTS
Introduction and summary............................................................................................................... 1
Nature of judicial review.................................................................................................................. 2
Grounds in this case.......................................................................................................................... 3
The proceeding before the Judicial Registrar............................................................................... 7
The pleadings................................................................................................................................ 7
Referral to arbitration by a judicial registrar............................................................................ 8
The arbitration............................................................................................................................. 10
Order and reasons of the Judicial Registrar................................................................................ 15
Ground 11: allegation of fraud...................................................................................................... 16
The allegations............................................................................................................................ 16
Discussion.................................................................................................................................... 18
Grounds 6 and 8: sign at the entrance of the service road........................................................ 19
Ground 11: statement that parties agreed that ‘no left turn’ sign could not be seen........... 22
Discretionary grounds for the refusal of relief........................................................................... 22
No more favourable outcome will be achieved..................................................................... 22
Alternative avenues for redress................................................................................................ 24
Review by a magistrate.................................................................................................... 24
Appeal on a question of law............................................................................................ 27
Conclusion and orders.................................................................................................................... 31
HER HONOUR:
Introduction and summary
The plaintiff seeks judicial review of the decision of a judicial registrar in the Magistrates’ Court on 28 September 2016 in an arbitration between himself and the first defendant. The arbitration concerned a motor vehicle collision on 11 August 2015 between the vehicles driven by the plaintiff and by the first defendant at Winterton Road, Clayton. The plaintiff turned right from the Princes Highway into Winterton Road, after the first defendant turned left from the highway into Winterton Road, and collided with the rear of the first defendant’s vehicle.
The plaintiff commenced a proceeding in the Magistrates’ Court claiming that the collision was occasioned by the negligence of the first defendant and seeking $1,713.25 in damages. By defence and counterclaim the first defendant alleged that the collision was occasioned by the negligence of the plaintiff and sought the cost of repairs to his vehicle. Judicial Registrar O’Keefe found for the first defendant and ordered the plaintiff to pay the first defendant the sum of $7,297.08 together with interest and costs.
The plaintiff commenced this proceeding by originating motion filed on 28 November 2016 ie on the last day for commencing such a proceeding[1]. The plaintiff relied on 12 grounds including a number of grounds alleging breach of procedural fairness on the part of Judicial Registrar O’Keefe. The first defendant sought summary dismissal of the whole of the originating motion. I heard that application on 20 April 2017 and gave summary judgment for the defendants in respect of nine of the grounds in the originating motion, including the grounds relating to alleged breach of procedural fairness. I refused the application for summary dismissal in respect of three grounds. These surviving grounds in broad terms all relate to the manner in which the Judicial Registrar dealt with evidence of two road traffic signs on the Princes Highway, the combined effect of which was that left turning vehicles from the Princes Highway were not to turn at Winterton Road, but only from the service road. The first defendant did not take the service road, but instead turned left at Winterton Road itself against a ‘no left turn’ sign.[2] In my reasons for refusing summary judgment in respect of these grounds, I noted that the first defendant conceded that the Judicial Registrar had mistakenly found that the plaintiff agreed with the first defendant that the ‘no left turn’ sign at Winterton Road could not be seen by oncoming traffic on the day of the accident.
[1]An application for judicial review must be made within 60 days after the date on which the grounds arose i.e. the date of the order- r 56.02(1) of the Supreme Court (General Civil Procedure) Rules2015 (Vic) (‘the Rules’). The 60th day after this order was 27 November 2016, but as this was a Sunday the plaintiff had until the next working day, the 28 November 2016, to file his originating motion- r 3.01(5) of the Rules.
[2]The sign in question had a left hand angle with a cross through it i.e. used that symbol rather than words, but for convenience is referred to as a ‘no left turn’ sign in these reasons.
The hearing and determination of these matters at trial was referred to me by Justice Ginnane by order made 27 April 2017. For the reasons which I now give, I will quash the order made by the Judicial Registrar and remit the complaint and counterclaim for rehearing by the Magistrates’ Court.
Nature of judicial review
It is first important to identify the nature and limits of judicial review, as opposed to appeal. Judicial review does not afford a person aggrieved by the decision of a lower court a general right of appeal to the Supreme Court. In broad terms, judicial review is directed to the exercise of jurisdiction and the process by which the court or tribunal below reached its decision; not whether that decision is correct. The grounds on which the decision of a lower court may be set aside on judicial review are limited to jurisdictional error, failure to observe an applicable requirement of procedural fairness, fraud and error of law on the face of the record.[3] This means that judicial review is not available where, for example, the aggrieved person considers that the court or tribunal below reached the wrong decision on the facts, although it adhered to correct process and correctly applied the law. It also means that the relief that is granted if an application for judicial review is successful is limited to the setting aside of the decision tainted by error, and remittal of the dispute to the court below for rehearing. This Court does not seek to re-determine the dispute itself.
[3]Craig v South Australia (1995) 184 CLR 163.
A further consequence is that, even where a ground for judicial review is established, the grant of relief is discretionary.[4] This Court may, for example, refuse to set aside the impugned decision, even if affected by error, if the decision maker below could not reasonably come to a decision more favourable to the plaintiff on reconsideration according to law. In other words, the significance of the error and whether it made any real difference to the outcome is important. This Court may also refuse to set aside the decision on other discretionary grounds, including whether there was a more appropriate other avenue of redress available to the plaintiff that he or she has failed to utilise.
[4]Mann v Medical Practitioners Board of Victoria and anor [2004] VSCA 148, in particular per Nettle JA (as he then was) at [17] ff.
Grounds in this case
In this case, the grounds in the originating motion grounds broadly relate to alleged breach of procedural fairness or that the Judicial Registrar (wrongly described in the originating motion as ‘the Magistrate’) failed to give consideration to various matters. I dismissed the grounds relating to procedural fairness at an early stage. The summary of my oral reasons for dismissing the procedural fairness grounds, as set out in my orders of 20 April 2017, is as follows:
Grounds 1, 5, 7, 10 and 12 of the amended origination motion allege breach of procedural fairness including, in the case of Ground 12, bias. The Court appreciates that the plaintiff may have subjectively felt that the procedure followed at the arbitration did not allow him to state his case fully, or otherwise did not afford him procedural fairness, but accepts the submissions of the first defendant that there is no real prospect that the plaintiff will be able to show that objectively the Judicial Registrar breached any requirement of natural justice. This is particularly the case given that the proceeding below was an arbitration, and s 103(2) of the Magistrates’ Court Act 1989 provides that in conducting an arbitration the Magistrates’ Court may inform itself in any manner that it thinks fit and is not required to conduct the proceeding in a formal manner.
I also dismissed a number of the grounds that alleged that the Judicial Registrar failed to give consideration to various matters. The grounds to this effect that I dismissed were as follows:
2.No consideration was shown by the Magistrate that the Plaintiff through no fault of his own was ‘committed’ on the first lane of the highway in the line of oncoming traffic before the 1st Defendant indicated and slowed to do his illegal left hand turn.
3.No consideration was given by the Magistrate that the Plaintiff’s car needed ‘stopping space’ once its rear had cleared the highway.
4.No consideration was shown by the Magistrate that the car had associated ‘momentum’ coming off the highway.
These grounds relate to the plaintiff’s contention below that his collision with the rear of the first defendant’s vehicle came about at least in part because the first defendant’s actions left him insufficient space to turn right safely.
Ground 10 could be seen to fall into this category, as well as alleging breach of procedural fairness. Ground 10 alleged:
10.The Magistrate did not give due consideration that the Plaintiff case came down to measurements of the road and positions of the cars as photographed after the collision. The Magistrate did not look at or consider my accurate construction of the collision scene and without this measuring stick of it for the space description necessary; and the committed position on the highway; and the momentum of the vehicle clearing off the highway, the plaintiff was through no fault of his own to be at fault in collision on The highway intersection or at fault upon the collision entry to Winterton Road.
Ground 9 alleged:
The procedure of the Magistrates’ Court of Victoria did not allow the Plaintiff to prepare for the 1st Defendant’s different version of the matter in the court, from that which he had stated in his filed Statement of Counterclaim.
The plaintiff alleged that there was an inconsistency between the statement in the counterclaim that the first defendant had been ‘proceeding’ along Winterton Road when struck from behind by the plaintiff’s vehicle, and the first defendant’s evidence that at the time he was struck he was braking for another vehicle entering from the service lane. I dismissed this ground on the basis that there was no real inconsistency between the defendant’s case as run below, and his counterclaim.
The only grounds to survive the summary dismissal application and so now for consideration at trial are Grounds 6, 8 and 11. They are as follows:
6.The Magistrate took no notice that there was a prior sign which intrinsically warned the defendant of his conduct.
…
8.The Magistrate did not consider the matter for the Plaintiff [sic] case that a prior warning sign warned the first defendant against his conduct.
…
11.No consideration was given by the Magistrate for the accusation that I made under oath that the defendant had changed the sign (orientation of it) and had taken photos of it.
Ground 11 rests on the plaintiff’s allegation that the photographs of the ‘no left turn’ sign at Winterton Road that the first defendant put in evidence before the Judicial Registrar were taken after the first defendant had changed the position of the sign. Implicit in this allegation is an allegation of fraud on the part of the first defendant. The plaintiff also alleged that in this proceeding the first defendant produced different photographs on subpoena to those he put in evidence below. Having regard to these allegations, I permitted the first defendant to provide further evidence in this proceeding as to the taking of the photographs and production on subpoena, and the plaintiff to reply.
In my view, Ground 11 also requires consideration of the finding by the Judicial Registrar that the first defendant turned left into Winterton Road ‘against a sign that everybody agrees was not able to be seen on the day in question’.[5] The first defendant concedes that the plaintiff did not agree before the Judicial Registrar that this was the case. The first defendant does dispute, however, that this finding is properly described as being an error of law, and, even if it is such an error, whether it justifies the quashing of the decision.
[5]Reasons of the Judicial Registrar, as they appear transcribed by the plaintiff, at Court Book p128, lines 14-15. This transcript was prepared by the plaintiff, rather than by an authorised transcription service, but the first defendant took no objection to it. The plaintiff first put his transcription into evidence in his first affidavit, dated 24 November 2016 and sworn 28 November 2016. He included a paginated and line numbered version in his affidavit dated 29 November 2016, sworn 30 November 2016. I will refer to that version, which appeared in the Court Book at pp 86-129.
It is not every error of law that can support intervention by judicial review. Where an error is alleged to be an error of law, relief by way of judicial review can only be granted where that error is on the face of ‘the record’. The source of this limitation lies at least in part in the concern identified by the High Court in Craig v South Australia[6] (‘Craig’) that judicial review not be transformed ‘into a discretionary general appeal for error of law upon which the transcript of proceedings and the reasons for decision could be scoured and analysed in search for some internal error’.[7]
[6](1995) 184 CLR 163.
[7]Craig, at [17].
Thus it is necessary to identify what is ‘the record’. In the absence of legislative extension, the High Court in Craig held that ‘the record’ comprises only the documentation which initiates the proceeding, the pleadings (if any), and the order.[8] There has been legislative extension to the meaning of ‘the record’ in Victoria. Section 10 of the Administrative Law Act1978 (Vic) (‘Administrative Law Act’) provides:
[8]Ibid at [19].
10 Reasons to be part of record
Any statement by a tribunal or inferior court whether made orally or in writing, and whether or not made pursuant to a request or order under section 8, of its reasons for a decision shall be taken to form part of the decision and accordingly to be incorporated in the record.
Counsel for the first defendant did not submit in relation to any of the matters relied on by the plaintiff that, even if established to be errors and errors of law, they were not on the record and so could not permit relief by way of judicial review. To the contrary, both parties took me at length to the transcript for their competing contentions as to whether or not the Judicial Registrar had been in error. Nevertheless, whether or not an error of law is on the record is a matter on which the Court is required to be satisfied before relief can be granted on that basis.
For reasons of convenience, and to reflect the submissions as put, I will first consider the matters before me, including alleged errors of law, on the basis of the whole of the material- being the pleadings, the transcript and exhibits below, the order and, where relevant, the further evidence in this proceeding. The question of the record only becomes relevant if the only ground established is an error of law. For that ground to permit relief, it must be an error of law on the record.
As will be seen, I do not think that the plaintiff has established any ground for judicial review except in relation to the finding by the Judicial Registrar that the plaintiff agreed that the ‘no left turn’ sign could not be seen. That error is an error of law, there being no evidence to support it, and it is in the Judicial Registrar’s reasons. As the reasons form part of the record, that error is ‘on the face of the record’.
The proceeding before the Judicial Registrar
The pleadings
In the statement of claim attached to his complaint, the plaintiff alleged various particulars of negligence on the part of the first defendant including:
3 a) Failing to notice or abide by each of two consecutive road traffic signs which indicated ‘to Winterton Road via service road only’; and ‘no left turn at Winterton Road’;
3 d) Deliberately jamming on his brakes in front of the plaintiff after the sounding of the plaintiff’s car horn; and/or failing to leave enough stopping space for the plaintiff’s vehicle behind him upon the plaintiff’s exit from the intersection of Princes Highway and Winterton Road.
The plaintiff also alleged a number of aspects of ‘causal link’ including:
4. The defendant in his intention to turn left into Winterton Road, missed or ignored the sign at the beginning of service road which read ‘to Winterton Road via service road only’.
5. The defendant then continued along the Princes Highway toward Winterton Road and failed to see or ignored the ‘no left turn’ sign at the corner of Winterton Road.
10. The defendant then, upon the sounding of the plaintiff’s car horn which was sounded to alert the defendant of the plaintiff’s position, just a little way off the intersection, applied his brakes fully and suddenly as in a rage at the plaintiff having sounded his horn, or for whatever other reason may be supplied by the defendant. The specific damage to each vehicle attests to this attitude of the vehicles; both dipped down at the front and one under the other at the rear.
The first defendant in his Notice of Defence denied the alleged negligence, including the allegations at paragraphs 3a and 3d of the statement of claim. The first defendant did not admit the ‘causal link’ alleged in paragraph 4 of the statement of claim and further stated that it was irrelevant to the cause of the collision, pleading that the cause was solely the plaintiff’s negligence.
Thus, the plaintiff by his pleading squarely asserted that the first defendant was negligent in executing a left hand turn from the Princes Highway into Winterton Road against the two consecutive road signs which prohibited it. He said this was a cause of the collision. He further alleged that a cause of the collision was the first defendant coming to a sudden stop after both vehicles were in Winterton Road. The first defendant by his pleading denied that he was negligent in turning against the ‘no left turn’ sign at Winterton Road, but did not expressly deny that there was such a sign. As will be seen, at the hearing he admitted there was such a sign, but said it could not be seen. The first defendant in his Notice of Defence did not deny the presence of the earlier sign at the beginning of the service road, but put the plaintiff to proof of it and its relevance.
In relation to causation, the first defendant in his Notice of Defence denied braking in the manner alleged but did not deny that turning left in contravention of the two signs may have played a causal role- he put the plaintiff to proof on those matters.
Thus, on the pleadings (which are undeniably part of the record) the role played by the first defendant turning left against the two signs was in dispute, both as to negligence and as to causation.
Referral to arbitration by a judicial registrar
Section 102(1) of the Magistrates’ Court Act1989 (Vic) (‘Magistrates’ Court Act’) provides as follows:
102 Arbitration for small claims
(1)The Court must refer a complaint under which theamount of monetary relief sought is less than $10 000 to arbitration in accordance with this Division.
The section then sets out various exceptions. Although there is no evidence on the point before me, I infer that none of these apply. The plaintiff has put in evidence the Notice of Arbitration.[9] That Notice states that the proceeding has been ‘listed for arbitration before a Magistrate’. In fact, the arbitration was conducted by a judicial registrar. Rule 8 of the Magistrates’ Court (Judicial Registrars) Rules2015 (Vic) (‘Magistrates’ Court (Judicial Registrars) Rules’) permits a judicial registrar to ‘deal with and exercise all or any of the powers of the Court’ in, amongst other types of matters, a proceeding for a cause of action for damages where the amount claimed is less than $10,000. This was such a claim.
[9]Exhibit GW-12 to the plaintiff’s affidavit sworn 24 February 2017 and also Exhibit GW-16 to his ‘Affidavit to Show Cause’ sworn 21 March 2017.
An arbitration is permitted, and perhaps intended, to be a less formal procedure than a hearing in which the usual rules of procedure and evidence apply. Section 103 of the Magistrates’ Court Act relevantly provides:
103 Conduct of arbitration
(1)An arbitration under this Division is to be conducted by the Court constituted by a magistrate or, if the Rules so provide, by a registrar.
(2) In conducting an arbitration, the Court—
(a)is not bound by rules of evidence but may inform itself on any matter in such manner as it thinks fit; and
(b) is bound by the rules of natural justice; and
(c)is not required to conduct any proceedings in a formal manner; and
(d)may exercise any powers that the Court may exercise in hearing and determining a complaint.
(2A)Nothing in subsection (2)(a) prevents the application of Part 3.10 of the Evidence Act 2008 to the conduct of an arbitration.
(3) Evidence in an arbitration—
(a) may be given orally or in writing; and
(b) if the Court so requires, must be given on oath or by affidavit.
(4)The Court must determine according to law any question that arises for determination in an arbitration.
(5) (Not applicable)
There are, however, formal requirements in relation to the form and content of an award in an arbitration and as to its legal effect. Section 104 relevantly provides:
104 Award
(1)An award of the Court in an arbitration under this Division must be in writing.
(2)If the Court includes in an award a statement of the reasons for making the award, only the terms of the award and not the reasons must be in writing.
(3)An award of the Court in an arbitration under this Division has effect as if it were an order made by the Court in a proceeding heard and determined by it.
(4)If the Court does not include in an award a statement of the reasons for making the award, the Court must, if requested to do so orally or in writing by a party to the arbitration within 28 days after the making of the award, furnish to that party within a reasonable time after receiving the request a statement in writing of the reasons for making the award.
Further, s 105 provides that costs may be awarded in an arbitration except for very small claims.
It follows from s 104(3) that judicial review of the award lies as if it was an order of the Court.
The arbitration
At the arbitration, the plaintiff was not legally represented. The first defendant, who I will call ‘the defendant’ or ‘Mr Ropata’ when referring to his evidence at the arbitration, was represented by counsel instructed by the solicitors for his insurer. At the commencement of the arbitration, the Judicial Registrar suggested to the plaintiff that he give ‘a snapshot or summary’ of his version of events leading up to the collision. This was perhaps intended to be equivalent to an opening by counsel. The plaintiff was not sworn at this stage, only later when he was about to be cross examined. In this opening, the plaintiff referred both to there being a ‘no left turn’ sign at the intersection of Winterton Road and the Princes Highway and that just as the plaintiff had completed his right hand turn into Winterton Road the defendant, then in Winterton Road, ‘slammed his brakes on as hard as he possibly could’.[10]
[10]Transcription p 7, lines 27-28 at CB 89. The plaintiff initially said this happened ‘before I could clear the road behind me’ but later clarified that when the first defendant ‘slammed the brakes on’ his i.e. the plaintiff’s car was off the Princes Highway, but ‘only just over the line’.
The Judicial Registrar then asked clarifying questions of the plaintiff in relation to both of these matters. In relation to the sign, he asked where it was and if it was facing the defendant on the Princes Highway. The plaintiff responded ‘Yes, that’s facing him’. Counsel for the defendant interjected to say ‘we agree there’s a sign there but we’ll show you a photo on the day of what the sign was actually facing’.[11] The plaintiff showed the Judicial Registrar at this point a view of the intersection of Winterton Road and the Highway downloaded from Google in October 2015.[12] That view shows the sign largely facing the direction of travel on the Highway, although the pole is tilted at a slight angle away from the road. It was apparent then at this point of the arbitration that the dispute on the pleadings about the ‘no left turn’ sign was maintained in the evidence. In other words, there was a factual dispute between the plaintiff and the defendant as to whether or not the ‘no left turn’ sign was facing the direction of travel on the Highway.
[11]Transcription p 8, lines 25-26 at CB 90.
[12]Part of Exhibit GW-3 to the plaintiff’s affidavit sworn 28 November 2016. For ease of reference, I marked this photograph as Exhibit C at the summary judgment hearing on 20 April 2017.
The plaintiff then gave his account of what occurred after the collision. He said that he asked the defendant if he had seen the ‘no left turn’ sign, and the defendant then went over and looked at it (without the plaintiff, who stayed at the site of the collision) saying words to the effect that it was crooked, and ‘how am I supposed to see that’.[13]
[13]Transcription pp 10-11, CB 92-93.
At this point in his account, the plaintiff referred to the earlier sign at the service road. His account and the questions by the Judicial Registrar were as follows:[14]
[14]Transcription p 11 line 33 to p12 line20, CB 93-94.
Plaintiff:But there’s also another sign that tells you to turn in the slip road to make that turn, that was before that sign, there was nothing wrong with that sign.
His Honour: So there was a further sign up the road was there?
Plaintiff:Coz it was a slip road, you can see the slip road that he’s meant to turn left on but he went around the long way.
His Honour: What does that sign say?
Plaintiff:It says left, Winterton, Entry to Winterton Road from slip road only, from service road only. Your honour I wasn’t trying to attribute blame as to how he got into that position. I had the duty to give way to all traffic no matter what happened, but because he commandeered that situation he didn’t allow me exit from …
Mr Ross:Now we’re getting into explanation.
His Honour: What I’m focussing on is not so much all of the lead up to that. I hear from your evidence that you were crossing the highway turning right up Winterton Road, that he executed a left turn against the sign etc etc. Regardless of that a collision hasn’t occurred at this stage has it?
Plaintiff:No.
The plaintiff then continued his account. He said that the defendant put his brakes on ‘really hard’ because he, the plaintiff, was ‘bipping’ his horn at him, although he acknowledged that this was a conclusion that he was drawing. The plaintiff referred on a number of further occasions to the braking being ‘very violent’ or the defendant ‘slamming on’ his brakes, asserting that it was this sudden stop that caused the accident. He agreed with the summary of his case by the Judicial Registrar in these terms:
Judicial Registrar: So you’re suggesting by braking suddenly you had no choice but to run into the back of him rather than stay on the Princes Highway?
Plaintiff:Yes that’s right. Yeah.[15]
[15]Transcription p 14 lines 24-27, CB 96.
The plaintiff’s final comment before being sworn for cross examination, in response to the invitation from the Judicial Registrar to add anything else, was in these terms:
Yes I just know in my heart that I didn’t do anything wrong on that morning, whatever happened it was not a matter of me not leaving enough space for the car in front. It was someone else taking control of the space I was leaving for the car in front they took, just as if you were parked and somebody reversed back into you, you haven’t got any control of that space anymore it’s been taken from you.[16]
[16]Transcription p 15, lines 23-28, CB 97.
Under cross examination, the plaintiff acknowledged that Mr Ropata had slowed down to turn into Winterton Road to at least 20 kph, possibly 10 kph, and had his left blinker on, and that, as a consequence, he, the plaintiff, was not surprised that Mr Ropata turned.[17] In relation to the ‘no left turn’ sign, the plaintiff was shown the three photographs that Mr Ropata now deposes he took immediately after the collision, the first two of which show the pole of the ‘no left turn’ sign bent at an angle further than 90 degrees to the highway, and the sign itself not perpendicular to the direction of travel, but almost parallel to it.[18] The plaintiff denied that the sign was in this position at the time of the collision, saying ‘It wasn’t like that…It wasn’t flat, it was a little bit crooked, it wasn’t flat.’ He added ‘I think he’s changed that sign. Yeah, coz it wasn’t that’.[19]
[17]Transcription pp 19-20, CB 101-102.
[18]SR 1 to the affidavit of Stewart Ropata sworn 14 June 2017.
[19]Transcription p 26 line 29 – p 27 line 15, CB 108-109.
The plaintiff agreed that the first defendant after looking at the sign could have said ‘It’s turned the wrong way’.[20] It was put to the plaintiff that the first defendant was going to say that after the accident he spun the sign around to its correct position. The plaintiff replied that he did not see him move the sign ‘I just remember it wasn’t as bent as that. It was bent like it was in the google picture’.[21] The picture downloaded from Google to which the plaintiff refers shows the pole bent slightly away from the Princes Highway, but the sign apparently still substantially facing the direction of travel along the Highway. When it came to his case, Mr Ropata did not in fact give any evidence that he had moved the sign back into the correct position, and nor did his counsel assert this in his opening summary for him.
[20]Transcription p 26 lines 9-12, CB 108.
[21]Transcription p 27 lines 31-32, CB 109.
The plaintiff was also asked a number of questions directed to any belligerence by Mr Ropata. In particular, it was put to him that on his account the accident occurred because Mr Ropata was ‘performing road rage’, to which the plaintiff replied that ‘it’s one of the factors why it happened.’[22] He was also asked about the distance between his vehicle and that of Mr Ropata when the collision occurred. Although the evidence is a little unclear on this point, the plaintiff’s final answer is that there was a half car length between the front of his car and the back of Mr Ropata’s ‘when he hits the brakes’.[23]
[22]Transcription p 16, lines 8-11, CB 98.
[23]Transcription p 29 lines 21-22, CB 111.
Without objection from the defendant, after his cross examination the plaintiff produced some photographs, including a photograph he said he took at the scene, which he exhibits in this proceeding as GW-18 to one of his affidavits.[24]
[24]‘Affidavit to show cause’ dated 21 March 2017. Also part of GW-3 to the plaintiff’s affidavit sworn 28 November 2016. I marked this photograph, as further marked up by the plaintiff at the summary judgment hearing, as Exhibit B.
The defendant’s case commenced with an opening by counsel, which Mr Ropata then affirmed on oath. The opening broadly reflects the case as put to the plaintiff in cross examination, including that the plaintiff pointed out the ‘no left turn’ sign to Mr Ropata after the collision; Mr Ropata said ‘it’s turned the wrong way’; and he took the photographs which had already been shown to the plaintiff on the day. One exception is that there was no mention in counsel’s opening of Mr Ropata twisting the sign back to its correct position, and nor was Mr Ropata asked about this in some brief further evidence in chief that he gave.
The plaintiff’s cross examination of Mr Ropata covered the three areas that the plaintiff spoke about in his own opening - that Mr Ropata braked violently in annoyance at the plaintiff using his horn, and this was the cause of the collision; that Mr Ropata turned against a ‘no left turn’ sign; and that Mr Ropata by executing his left hand turn had not left the plaintiff enough room to safely turn right into Winterton Road. Mr Ropata denied braking violently; said he did so to avoid hitting a car turning from the service lane; and denied that he had made up the existence of that car. He agreed that there was a ‘no left turn’ sign at the intersection. In relation to the allegation that he had not left the plaintiff enough room, Mr Ropata said he had not seen the plaintiff wishing to turn right and was not aware of the plaintiff’s vehicle at all until he heard its horn after he had already turned left.
The plaintiff did not ask Mr Ropata any questions about the earlier sign on the Princes Highway that said to turn left into Winterton Road from the service lane (although he did put to him questions about the car entering from the service lane) and did not put to him the allegation that the photographs said to have been taken by Mr Ropata were not accurate, or were taken after Mr Ropata had changed the sign. In my assessment, the thrust of the cross examination was not directed at whether or not Mr Ropata had disregarded or disobeyed the two signs directing left turning traffic not to turn at the Princes Highway but only at the service road, but rather at the other two of the plaintiff’s contentions - that Mr Ropata had braked violently, and failed to leave the plaintiff enough room to safely execute his right hand turn.[25]
[25]See, in particular, the cross examination at pp 42-to its end at 46, CB 124-128.
Order and reasons of the Judicial Registrar
The Judicial Registrar dismissed the plaintiff’s claim, and allowed the claim by Mr Ropata in the sum of $7,297.08 together with $288.83 interest and costs of $3094.70. The orders as sent to the plaintiff bear the name and title ‘Magistrate/Registrar: O’Keefe’.[26] In other words, they do not on their face show that the award was made by a Judicial Registrar.
[26]Exhibited to a number of affidavits, including as GW-13 to the plaintiff’s affidavit sworn 24 February 2017 and as GW-17 to his affidavit sworn 24 March 2017.
The reasons given by the Judicial Registrar were as follows:
His Honour:
It appears to me from the evidence here that the vehicle driven by Mr White is travelling along Princes Highway on the day in question and continues to turn right into Winterton Road, observes traffic coming before him, observes the Defendant in the far left hand lane of the Princes Highway travelling in his direction, and proceeds to move across to execute his right hand turn into Winterton Road, intending to wait for Mr Ropata to pass, instead, his evidence is that he sees him slow, sees him put the indicator on, and sees him slow down and execute a left turn into Winterton Road, against a sign that everybody agrees was not able to be seen on the day in question. The real point or issue for the Court is to what happens after that. Now, I’m satisfied with the evidence before me, given by all the parties, that Mr Ropata having executed his left hand turn, sees a vehicle in the slip lane ahead of him, brakes, presumably for that vehicle, and the outcome of that is that the vehicle driven by Mr White runs into the rear of his vehicle. There is a fair bit of evidence as to what is said after the collision. Having heard all of the evidence and taking into consideration the civil test on the balance of probabilities, I am satisfied that the vehicle driven by Mr Ropata was run into from behind by Mr White and I am not satisfied that the evidence before me is any grounds or reason for Mr White running into the rear end of Mr Ropata’s vehicle. In all of the circumstances on the balance of probabilities I am satisfied that the damages caused to Mr Ropata’s vehicle was caused solely by the negligence of the vehicle driven by Mr White and I can find no particular negligence on the part of Mr Ropata. It follows therefore that the claim by Mr White against Mr Ropata will be marked as dismissed. And there will be order on the Counterclaim for an amounts for the costs …[27]
[27]Transcription p 46 at CB 128.
Ground 11: allegation of fraud
The allegations
The plaintiff alleged in answer under cross examination at the arbitration that Mr Ropata had changed the sign so that it no longer faced the road before taking photographs of it. In Ground 11, the plaintiff asserts that the Judicial Registrar erred by failing to consider this allegation.
In his affidavits and written submissions in this proceeding, the plaintiff explicitly accuses the first defendant of fraud. He alleges that the photographs produced at the arbitration were not taken at the time of the collision at all.[28]
[28]Plaintiff’s affidavits sworn 28 November 2016 at [6]; 24 February 2017 at [28]; and 24 March 2017 at [18] and submissions dated 27 March 2017 at [12].
At the hearing of the first defendant’s summary dismissal application, the plaintiff called on a subpoena he had issued for production of the photographs. He said that the photographs produced were not the same as those he recalled Mr Ropata tendering at the arbitration. He said that the ones tendered at the arbitration had no other cars in them and were taken in broad daylight. As is evident, this is a further allegation of fraud- not just that the sign was twisted before the photographs were taken and/or they were taken at a later time, but that the first defendant does not produce in this proceeding what he produced before the Judicial Registrar.
The plaintiff had tendered his own photograph at the arbitration.[29] I asked him at the summary dismissal hearing to mark up a copy of that photograph, to show what he said was the ‘no left turn’ sign. The marked up photograph is Exhibit B. Regrettably, the plaintiff’s photograph does not give a clear image. Further, to my eyes the patch of light that the plaintiff says was the ‘no left turn’ sign would appear to be circular in shape, when the plaintiff’s own Google image shows that the sign is rectangular.
[29]Part of GW-3 to his affidavit sworn 28 November 2016 and GW-18 to his affidavit sworn 24 March 2017.
I permitted further evidence for the trial on these allegations of fraud. Mr Ropata deposes in his affidavit sworn 14 June 2017 that he took photographs on his mobile telephone at the scene of the collision; produced them and the mobile telephone at the arbitration; subsequently provided the same photographs to the solicitors for his insurer, Ligeti Partners, for provision to the plaintiff in answer to the subpoena; and that he has not taken any other photographs of the scene of the collision.
The first defendant also obtained an opinion from Ms Carly Michael, whose duties include analysing images to extract their metadata. Ms Michael deposes that she received three photographs from Ligeti Partners which she exhibits. The photographs appear to be identical to those exhibited by Mr Ropata. Ms Michael deposes that she cannot say whether or not the metadata for these photographs had been altered prior to receipt of them by her. She deposes that the metadata she extracted from the photographs record that all three of photographs were taken at 7:00am on 11 August 2015. The metadata on the first two photographs, of the ‘no left turn’ sign, records that they were taken at 7:00:24am and 7:00:40am respectively. The metadata for the third photograph, which shows the two cars in contact with each other, records that it was taken at 7:00:50am on 11 August 2015.
The plaintiff agrees that the third photograph is accurate and was taken on that day after the collision. He continues to dispute that the first two photographs exhibited by Mr Ropata are an accurate representation of the sign at the time of the collision, notwithstanding that, according to the metadata extracted by Ms Michael, the photographs of the sign were taken immediately before the photograph which the plaintiff agrees is accurate.
Discussion
As noted above, the plaintiff makes two distinct allegations of fraud against Mr Ropata in relation to the photographs.
I consider that the plaintiff has wholly failed to establish that Mr Ropata produces in this proceeding different photographs to those he produced at the arbitration. The only basis for this allegation advanced by the plaintiff is his recall of the photographs at the arbitration (now nearly a year ago) and his speculation that Mr Ropata may have changed the metadata on the first two photographs. This speculation is not supported by any expert evidence as to how such an alteration may have been effected. Further, the whole of the allegation flies in the face of the sworn evidence of Mr Ropata. If it was to be maintained after receiving Mr Ropata’s affidavit, the plaintiff should have given Mr Ropata the opportunity to answer it by requiring him for cross‑examination, and putting the allegation to him. The plaintiff did not do so.
I appreciate that as a self-represented litigant the plaintiff may not have been familiar with the requirement to give notice of cross examination if an affidavit was not accepted. The first defendant’s solicitors did, albeit obliquely, put him on notice of it, however, by their letter to him of 11 August 2017.[30] In this letter the solicitors for the first defendant note that the plaintiff has not given them notice that their ‘witnesses’ are required for cross examination. The plaintiff says that he understood the word ‘witnesses’ to refer only to Ms Michael, and not to the first defendant himself, as he is a party. This is an arguable distinction, but, if the plaintiff was really confused, he could have made some enquiry of Ligeti Partners, or sought clarification elsewhere. There is no evidence that he did so.
[30]First defendant’s exhibit 2.
I also consider that the plaintiff has failed to establish any error by the Judicial Registrar in failing to consider his allegation of fraud at the arbitration - that Mr Ropata had twisted the sign before taking the photographs he then produced, and essentially for the same reasons. It is a basic rule of procedure, grounded on fairness, that a party must put his or her competing version of events to the other party in cross examination to give that other party the opportunity of commenting on it. In this instance, if the plaintiff wished the Judicial Registrar to consider this allegation, he should have put it to Mr Ropata when the plaintiff had the opportunity to cross examine him, to give Mr Ropata the opportunity to answer it. In the absence of Mr Ropata having had that opportunity, I do not consider that the Judicial Registrar can be said to have erred in failing to consider the allegation. Indeed, it may have been an error had he done so.
Allegations of fraud should not be made without a sound evidentiary basis, and the party alleged to have committed the fraud must be given a proper opportunity to answer the allegations. The plaintiff entirely fails in relation to these allegations.
I take a different view, however, in relation to the finding by the Judicial Registrar that ‘everybody agrees’ that the sign could not be seen. I will return to this shortly.
Grounds 6 and 8: sign at the entrance of the service road
The plaintiff’s case in relation to these Grounds is that the Judicial Registrar did not consider the presence and significance of the earlier sign at the entrance to the service road, which directed traffic from the Highway wishing to turn left at Winterton Road to only do so from the service road. The existence and significance of the sign formed part of the plaintiff’s statement of claim. The defence filed on behalf of Mr Ropata did not admit the sign, but said that it any event it was irrelevant. The plaintiff referred to this sign in his account to the Judicial Registrar (essentially his evidence in chief). In the extract I set out earlier in this judgment, the plaintiff told the Judicial Registrar what the sign said, although he did not have a photograph of it in that hearing. He seeks to introduce a photograph of the sign in this proceeding.[31]
[31]Exhibit GW-1 to his affidavit sworn 28 November 2016 and GW-19 to his affidavit sworn 24 March 2017.
Mr Ropata gave no evidence in chief about this sign, either in his counsel’s summary (which he affirmed) or in his additional evidence in chief. Nor did the plaintiff ask Mr Ropata any questions about this sign, as opposed to the ‘no left turn’ sign at Winterton Road itself, in cross examination of him. In other words, although the plaintiff had alleged in his statement of claim that failure of Mr Ropata to heed this sign was a cause of the accident, the only evidence about it is contained in a single reference by the plaintiff.
The plaintiff contends that he did not pursue the issue of this sign because the Judicial Registrar indicated that he was not interested in the lead up to the collision, and directed him to focus on what occurred in Winterton Road itself by these words:
What I’m focussing on is not so much all of the lead up to that. I hear from your evidence that you were crossing the highway turning right up Winterton Road, that he executed a left turn against the sign etc etc. Regardless of that a collision hasn’t occurred at this stage has it?[32]
[32]Transcription p 12 lines 15-18, CB 94.
The first defendant says that Grounds 6 and 8 fail because the earlier sign was irrelevant- the Judicial Registrar correctly focused on what happened later.
I do not think it can be said that the earlier sign was necessarily irrelevant. It was raised in the statement of claim, and the plaintiff did give evidence about it. Further, it was Mr Ropata’s case that he had to brake after he had entered Winterton Road because a car was seeking to turn into Winterton Road from the service road. The necessity to brake, which may then have been the immediate cause of the collision, would arguably not have arisen had Mr Ropata himself taken the service road, as the signs intended.[33]
[33]The plaintiff makes this point in his affidavit sworn 24 February 2017 at [26] and in his affidavit sworn 21 June 2017 at [38].
The plaintiff did not, however, pursue the issue of the earlier sign by asking Mr Ropata about it in cross examination. If he wished to pursue that issue, then as stated earlier, it was a requirement of fairness that he give Mr Ropata the opportunity to comment on it. As I noted earlier, the tone of his cross examination did not focus directly on the signs. Rather it focused on his contention that Mr Ropata did not leave him enough space to safely complete his right hand turn, and on the suddenness of Mr Ropata’s braking. Further, earlier in the hearing when invited to add anything further by the Judicial Registrar immediately before he was sworn to be cross examined, the issue on which the plaintiff focused was that Mr Ropata had not left him enough space, not that Mr Ropata had turned against the signs.
In these circumstances, I do not consider that the plaintiff has shown error on the part of the Judicial Registrar in failing in his reasons to advert to the earlier sign (even assuming such an error could ground judicial review). I think the Judicial Registrar would have been entitled to assume that the plaintiff did not press the relevance of the earlier sign.
The plaintiff says that he did not ask Mr Ropata about the earlier sign in cross examination because the Judicial Registrar had already indicated that he was not interested in that issue, and he, the plaintiff, was ‘obedient’ to that direction. I appreciate that an unrepresented plaintiff may be susceptible to what he or she perceives as indications from the court as to what is relevant, and as a consequence judicial officers need to ensure that they do not cut short arguably relevant contentions. However, I do not consider that the comments made by the Judicial Registrar in the course of the plaintiff’s summary in chief can reasonably be construed as a prohibition on the plaintiff cross examining on the earlier sign. There is no indication in the transcription that the Judicial Registrar sought to confine the plaintiff’s cross examination of Mr Ropata to particular topics, and indeed he told the plaintiff that cross examination was his ‘opportunity to ask (Mr Ropata) any questions you wish to ask him’.[34] Decisions about what issues to pursue, in particular about what evidence to give in chief and what questions to ask in cross examination, are ultimately made by the parties themselves.
[34]Transcription p 118 lines 10-11, CB 118.
Ground 11: statement that parties agreed that ‘no left turn’ sign could not be seen
I take a different view in relation to the finding by the Judicial Registrar in his reasons that ‘everybody agrees’ the ‘no left turn’ sign at Winterton Road could not be seen on the day of the accident. It was plain from his evidence in chief and his answers in cross examination that the plaintiff did not agree that this was the case. The Judicial Registrar’s finding was not supported by any evidence, in so far as it related to the plaintiff. It is, accordingly, an error of law.
The first defendant submits that there was no error, or at least no significant error, because while the plaintiff did not positively agree that the sign could not be seen, he did not disagree with that proposition. Further, he agreed that the sign was crooked and he conceded that the first defendant may have expressed the view at the time that it could not be seen. I do not accept the submission. Failing to disagree is not the same as agreeing. In any event, the plaintiff disagreed in cross examination with the proposition that the sign was not facing the Highway. The plain inference is that he disagreed that it could not be seen. In the absence of agreement on the issue, the Judicial Registrar was required to make a finding as to whether or not the sign could be seen on the evidence.
This error of law was made in the reasons of the Judicial Registrar, which by virtue of the Administrative Law Act, are part of the ‘record’. It follows that it is an error which can justify the intervention of this Court by way of judicial review.
The first defendant submits that, even if an error of law on the record, judicial review should nevertheless be refused on discretionary grounds. I now turn to that issue.
Discretionary grounds for the refusal of relief
No more favourable outcome will be achieved
There are two aspects to the first defendant’s submission that relief should be refused on discretionary grounds. The first is that a fresh decision maker could not reasonably come to a decision more favourable to the plaintiff if the order is quashed and the matter remitted for rehearing. This submission turns on the contention that the error by the Judicial Registrar in finding that the parties agreed the ‘no left turn’ sign could not be seen made no real difference, because the plaintiff conceded that he knew the first defendant was turning left and that he had a duty to give way to him. In this submission, the fact that the first defendant turned left against the sign was irrelevant and the Judicial Registrar correctly determined the case on the basis of what happened after the first defendant left i.e. what happened in Winterton Road.
I do not accept this submission. That is the approach the Judicial Registrar took, but it was premised on his incorrect finding that there was no issue about turning left against a sign. Had he not made this error, he would have had to make a finding on the evidence as to whether or not the sign could be seen.
In assessing the prospects of a different outcome, which in turn may depend on whether the sign was sufficiently visible, it is necessary to consider the photographs that the first defendant produced below. The plaintiff has failed to establish any fraud on the part of the first defendant in producing to this Court different photographs to those he produced below and, accordingly, I proceed on the basis that the photographs that Mr Ropata exhibits to his affidavit, the colour version of which is the first defendant’s Exhibit 1, are those that he produced below and that they accurately show the sign at the time of the collision. I accept the submission of the first defendant that the photographs show a sign that is not perpendicular to the direction of travel. I do not accept his submission that the photographs show that the sign could not be seen by oncoming traffic. I cannot exclude the possibility that a judicial registrar or magistrate could on rehearing reasonably find that the sign at the intersection sufficiently alerted drivers not to turn left there when coupled with the earlier sign at the service road, which directed Winterton Road traffic to turn left from the service road.
If a finding that the sign sufficiently alerted or reminded drivers not to turn left at the intersection is reasonably possible, so is a conclusion that the first defendant at least contributed to the accident by turning against the sign. It follows that the error by the Judicial Registrar cannot be said to be insignificant. It may have made a difference, and quashing of his order should not be refused because no more favourable outcome could be achieved on rehearing.
Alternative avenues for redress
The second aspect to the first defendant’s submissions that relief should be refused rests on the availability of other avenues for redress.
The authorities I will shortly discuss establish that where an alternative and more appropriate avenue of redress was available to an applicant for judicial review, but not utilised by him or her, then judicial review may be refused. In this case, the first defendant submits that there were two other such avenues available to the plaintiff, which he could have utilised, but did not. These were review of the order made by the Judicial Registrar by a Magistrate pursuant to s 16K of the Magistrates’ Court Act (wrongly identified in the affidavit in support of the first defendant’s application for summary dismissal as s 18K) or appeal to this Court on a question of law pursuant to s 109 of the Magistrates’ Court Act.
Review by a magistrate
Section 16K provides as follows:
16KAppeal from or review of determination of Court constituted by judicial registrar
(1)The rules may provide for appeals from or reviews of a determination of the Court constituted by a judicial registrar—
(a) whether in respect of—
(i)the hearing and determination of any proceeding (whether criminal or civil); or
(ii) any interlocutory application; and
(b)whether in respect of specified kinds of application or proceeding or generally; and
(c)by specifying whether the procedure is by way of appeal or review or both; and
(d)by specifying the way in which the Court may be constituted for those appeals or reviews.
(2)The powers in subsection (1) are in addition to and do not limit any power to make rules under section 16I.
(3)Unless the rules otherwise provide, a determination of the Court constituted by a judicial registrar may be appealed from or reviewed—
(a) on application of a party to the proceeding; or
(b) on the Court's own motion.
(4)If the rules do not provide for an appeal from or a review of a determination of the Court constituted by a judicial registrar, the determination is to be subject to a review or an appeal conducted—
(a)by way of hearing de novo by the Court constituted by a magistrate; and
(b) otherwise in accordance with the rules, if any.
Provision is made in the Magistrates’ Court (Judicial Registrars) Rules for an application for review pursuant to s 16K by r 16. That rule provides as follows:
16 Review of determination of Court constituted by judicial registrar
(1)An application under section 16K(3)(a) of the Act for review of a determination of the Court constituted by a judicial registrar must be—
(a) in Form 1; and
(b)accompanied by an affidavit that must state the reasons for the application.
(2)The application and the affidavit must be filed within 14 days after the day on which the determination was made.
(3)The Court may extend time under paragraph (2) before or after the time expires, whether or not an application is made before the time expires.
(4) The application for the review must be determined by the Court—
(a)after consideration of the application and the accompanying affidavit; and
(b)unless the Court otherwise directs, without notice to any person.
The following rule, rule 17, provides that an application for review under r 16 does not operate as a stay of the subject order. Rule 18 provides that there is a stay ‘(i)f the Court directs that the hearing and determination of a proceeding by the Court constituted by a judicial registrar be reviewed’. It is plain that these rules intend a two stage process - application for review, which may be granted or refused, and, if granted, a review. They are silent as to the permitted grounds for an application for review, and the nature of that review, if granted.
In the absence of a clearer articulation of the nature of this avenue of redress, it is difficult to determine if it was indeed, as the first defendant asserts, a more appropriate avenue than judicial review. For the purpose of analysis, I will take the argument for the first defendant at its highest and assume that review under this rule is a flexible means of redress, which can be sought for any perceived error made by the Judicial Registrar, whether of fact, law or procedural fairness, and that possible outcomes, if review is granted, include hearing afresh i.e. de novo. I also note that while the intention of rule 16 is that application for review be made swiftly, an extension of time can be sought, and there is no limitation on the grounds on which such an extension may be granted.
On this expansive view of this avenue of redress, it is both more flexible from the point of view of the aggrieved party as to the errors that can ground relief, and quicker and less expensive from the point of view of the other party than seeking judicial review in this Court. This analysis does suggest that seeking a review was the preferable avenue of redress, and so failure to utilise it is a discretionary basis on which relief in this judicial review proceeding could be refused.
The plaintiff answers this suggestion in his affidavit sworn 24 February 2017. He deposes that he was not aware that the judicial officer who conducted the arbitration was a judicial registrar and not a magistrate until so informed by Justice Ginnane in the directions hearing for this proceeding. In support of this contention, the plaintiff exhibits both the Notice of Arbitration and the Notice of Order Made.[35] The Notice of Arbitration states that the complaint has been ‘listed for arbitration before a Magistrate’. A person reading that Notice would then assume that the arbitrator was indeed a magistrate, unless told to the contrary. The plaintiff deposes that he was at no point on the day of the arbitration told that Mr O’Keefe was a judicial registrar, not a magistrate, and there was nothing to suggest that this was the case in the conduct of the arbitration or the two previous arbitrations that he observed. Nor does the Notice of Order Made make this clear. The judicial officer identified as having made the order is described as ‘Magistrate/Judicial Registrar: R. O’Keefe’. The descriptor ‘Magistrate’ is not crossed out.
[35]Exhibits GW-12 and GW-13 respectively to his affidavit sworn 24 February 2017.
There is no evidence in the first defendant’s case to contradict this evidence by the plaintiff, and so I accept it. I conclude that the plaintiff did not know until after this proceeding was commenced that the remedy of seeking review of the order by a magistrate was available to him, and could not have known without making further enquiries to resolve the ambiguity in the Notice of Order Made as to the characterisation of the judicial officer. Given the clear indication in the Notice of Arbitration that the arbitrator was to be a magistrate, it was not unreasonable not to make those enquiries. It follows that the availability of seeking review by a magistrate is not a reason to refuse relief in this proceeding.
Appeal on a question of law
The first defendant also relies on the availability of appeal on a question of law pursuant to s 109 of the Magistrates’ Court Act as an alternative basis for the discretionary refusal of relief by way of judicial review. That section provides:
109 Appeal to Supreme Court from final order made in civil proceeding
(1)A party to a civil proceeding in the Court may appeal to the Supreme Court, on a question of law, from a final order of the Court in that proceeding.
(2) An appeal under subsection (1)—
(a)must be instituted not later than 30 days after the day on which the order complained of was made; and
(b)does not operate as a stay of any order made by the Court unless the Supreme Court so orders.
(3)Subject to subsection (2), an appeal under subsection (1) must be brought in accordance with the rules of the Supreme Court.
(4)An appeal instituted after the end of the period referred to in subsection (2)(a) is deemed to be an application for leave to appeal under subsection (1).
(5)The Supreme Court may grant leave under subsection (4) and the appellant may proceed with the appeal if the Supreme Court—
(a)is of the opinion that the failure to institute the appeal within the period referred to in subsection (2)(a) was due to exceptional circumstances; and
(b)is satisfied that the case of any other party to the appeal would not be materially prejudiced because of the delay.
(6)After hearing and determining the appeal, the Supreme Court may make such order as it thinks appropriate, including an order remitting the case for re-hearing to the Court with or without any direction in law.
(7)An order made by the Supreme Court on an appeal under subsection (1), other than an order remitting the case for re-hearing to the Court, may be enforced as an order of the Supreme Court.
Appeal on a question of law pursuant to s 109 is of right if made within time. Thus it does not suffer from one disadvantage of seeking review under s 16K of the Magistrates’ Court Act, being that a preliminary application is required. Appeal under s 109 is limited to a question of law, but within that limitation a s 109 appeal affords a dissatisfied party broader scope than judicial review, because the error of law need not appear on the record. There is also considerable overlap between a s 109 appeal and judicial review in relation to allegations of breach of procedural fairness, because breach of procedural fairness is an error of law, and so can be a basis for either s 109 appeal or judicial review.
A significant difference between the two remedies lies, however, in the time frames within which they may be instituted as of right. For a s 109 appeal, that period is 30 days. That period can be extended, but extension is subject to the stringent requirements of s 109(5). For judicial review pursuant to O 56 of the Supreme Court (General Civil Procedure) Rules2015 (Vic), the period is 60 days. This period may be extended, and, arguably, the grounds for extension are less stringent than in the case of s 109(5).[36]
[36]Rule 56.02(3) provides that ‘special circumstances’ are required.
In Kuek v Victoria Legal Aid and anor[37] (‘Kuek’) the Court of Appeal upheld the refusal by a trial judge to grant relief by way of certiorari in respect of an error of law that could have been the subject of appeal by way of s 109 from the Magistrates’ Court. In that case, the plaintiff had sought, and been refused, an extension of time to bring an appeal pursuant to s 109 against an order of a magistrate. He then sought judicial review of the order. Phillips JA, with whom Winneke P and Buchanan JA agreed, held that:
In substance the application for judicial review was no more and no less than the appellant's attempt to appeal by another means and so much was tacitly acknowledged by the form of the originating motion in that it sought leave under s.109(4) and judicial review in the alternative. The judge held that in those circumstances the appellant could not succeed under Order 56, and I agree.
It is important that in relying in the originating motion upon alleged errors of law on the face of the record, the appellant was seeking on his application under Order 56 to raise matters that could have been agitated on appeal under s.109 had his appeals been in time. A claim for jurisdictional error, if properly established, might be in different case, but I am not now dealing with that. In relation to alleged errors of law, the appellant was not seeking recourse to Order 56 because of some alleged defect or insufficiency in the appeal permitted under s.109. As pointed out by the trial judge, the appellant was seeking merely to circumvent one of the limitations quite plainly imposed on an appeal by s.109 and it cannot be that a would-be appellant, who fails to act in timely fashion under s.109, can re-cast his or her appeal as an application for judicial review under Order 56 where the time limit is not 30 days but 60. [38]
[37]3 VR 289; [2001] VSCA 80
[38]Ibid at [15] and [16].
Phillips JA did not confine his judgment to the circumstance where judicial review is sought to avoid a time limitation. He went further, expressing the view that:
In my opinion, this Court should now affirm that, unless there are indeed exceptional circumstances, a litigant may not raise for determination under Order 56 - or at all events may not raise with any real chance of success - a matter or thing which is proper for determination on an appeal where that very litigant has a right of appeal under s.109.[39]
[39]Kuek, per Phillips JA further at [16].
Notwithstanding this broad statement, Kuek is plainly distinguishable on its facts from the current case. Mr Kuek was an experienced solicitor; the plaintiff is a lay person who is not legally represented. The plaintiff says that he enquired about avenues for redress in the Registry of this Court and was told about both avenues- appeal under s 109 and an application for judicial review and asked to identify which better reflected the errors he considered had been made. As the plaintiff considered the principal error lay in breaches of procedural fairness he elected to pursue judicial review. There is no evidence as to whether at that time he was within, or outside, the time to appeal under s 109. Alleged breaches of procedural fairness did form a large part of the original grounds in the plaintiff’s originating motion. As it transpired, those grounds were summarily dismissed but their presence goes some way to explaining this choice of avenue for relief, at least for a plaintiff without the benefit of legal assistance.
In Hoe v Manningham City Council[40] (‘Hoe’) Kyrou J (as he then was) cited Kuek and other cases which had followed it, but in the case before him declined to refuse relief by way of judicial review to an unrepresented plaintiff in respect of a decision of the Victorian Civil and Administrative Tribunal that was affected by jurisdictional error. The plaintiff in that case could have pursued his grievance by means of the statutory appeal mechanism provided by s 148 of the Victorian Civil and Administrative Tribunal Act1998 (Vic). His Honour relied on five factors in reaching his conclusion that it would be inappropriate to refuse relief by way of certiorari. Three of those also apply in this case - that the plaintiff is unrepresented; that had the statutory appeal been pursued, it would likely have been successful, at least in that case by the grant of leave to appeal; and that it would be consistent with the overriding purpose of the Civil Procedure Act2010 (Vic) (‘Civil Procedure Act’) to grant the relief sought.
[40][2013] VSC 195.
The other two factors on which Kyrou J relied do not apply in this case. They were first, that in the case before him, the error was one of jurisdiction. Such an error goes to the heart of the supervisory jurisdiction exercised by this Court over inferior courts and tribunals. Indeed, Phillips JA in Kuek in the portion quoted earlier noted that the same discretionary considerations for the refusal of relief because of an avenue of appeal may not apply to jurisdictional error. The other factor relied upon by Kyrou J was that the dispute in that case was of long standing and had already generated much litigation.
In his reference to the Civil Procedure Act, Kyrou J was referring to s 7(1). That section and s 8(1) respectively provide:
7 Overarching purpose
(1)The overarching purpose of this Act and the rules of court in relation to civil proceedings is to facilitate the just, efficient, timely and cost‑effective resolution of the real issues in dispute.
8 Court to give effect to overarching purpose
(1)A court must seek to give effect to the overarching purpose in the exercise of any of its powers.
This overarching purpose requires the Court to consider factors that do not necessarily all tend in the one direction. What is ‘just’ for one party, for example, is not necessarily efficient or cost-effective from the point of view of the other party. In this case, as in Hoe, in my judgment the balance of factors is against the refusal of discretionary relief. I do not consider that it would be just to refuse relief to the plaintiff, on the ground that he could have pursued another avenue of redress, when he is unrepresented and there is no evidence of any prejudice suffered by the defendants occasioned by the utilisation of O 56 as opposed to an appeal pursuant to s 109. In particular, there is no evidence of any prejudice occasioned by the longer time period within which an O 56 proceeding may be instituted. The first defendant is an individual, but he is represented by the solicitors for his insurer and they have the conduct of the case. Finally, the outcome of this proceeding will be to remit the dispute to the Magistrates’ Court for rehearing. This Court can substitute its decision for that below on a successful appeal, but remittal would very likely have been the outcome even on successful appeal, given the limited exploration of the issues below.
Conclusion and orders
For these reasons, I will quash the order of the Judicial Registrar and remit the complaint and counterclaim to the Magistrates’ Court for rehearing according to law. Given the costs and time already incurred compared to the amounts in issue, it would be sensible for the parties to consider whether they can now reach an agreed outcome that does not require the dispute to be heard again.
I will ask the first defendant, being the represented party, to prepare an appropriate form of order reflecting these reasons for consideration by the plaintiff. In relation to costs, the first defendant may seek an indemnity certificate pursuant to s 4 of the Appeal Costs Act1998 (Vic), subject to s 35A of that Act. If agreed, the proposed order can be submitted to me for consideration in chambers. If not agreed, I will hear the parties further.
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