CASE SUMMARIES 20161 Order by Magistrate for party to complete contract for sale of unit

In Vella v Waybecca Pty Ltd (No 2) MC 01/2016, a registered proprietor of a unit agreed to sell it but failed to complete the sale. As a result of legal proceedings being issued, the Magistrate made an order for specific performance of the contract. Upon appeal-HELD: Appeal dismissed. 1. Section 78B of the Judiciary Act provides that where a cause pending in a court of a State or Territory involves a matter arising under the Constitution or involving its interpretation, it is the duty of the court not to proceed in the cause unless and until the court is satisfied that notice of the cause, specifying the nature of the matter, has been given to the Attorneys-General of the Commonwealth and of the States, and a reasonable time has elapsed since the giving of the notice for consideration by the Attorneys-General, of the question of intervention in the proceedings or removal of the cause to the High Court.

2. Section 78B does not impose on the Court a duty not to proceed pending the issue of a notice no matter how trivial, unarguable or concluded the constitutional point may be. If the asserted constitutional point is frivolous or vexatious or raised as an abuse of process, it will not attach to the matter in which it is raised the character of a matter arising under the Constitution or involving its interpretation.

Australian Competition and Consumer Commission v C G Berbatis Holdings Pty Ltd [1999] FCA 1151; (1999) 95 FCR 292; 167 ALR 303, applied.

3. Even assuming that the land the subject of the contract for sale was integral to the work carried by the company formerly operated by V., it was a complete misconception to say that this somehow meant the defence power of the Commonwealth arose in an appeal from an order enforcing the sale of that land. The power in the Constitution exists to allow the Commonwealth to make laws relating to defence. The existence of the power to legislate in respect of defence does not mean that every private contract that in some way may relate to defence engages that power. The power relates to legislation, not to private contracts.

4. The complaint sought specific performance of a contract for the sale of land. That was a claim for equitable relief. The order made by the Magistrate on 24 June 2013 was for specific performance. Accordingly, the Magistrate had jurisdiction to make that order provided that the value of the relief was within the jurisdictional limit of the Magistrates’ Court. ‘Jurisdictional limit’ is defined in s3(1)(b) of the Magistrates' Court Act ('Act'). It is now, and has been since 2005, $100,000. The contract price for the land was well within that limit. Accordingly, the order made 24 June 2013 was within the jurisdiction of the Magistrate. The relevant determinant for the jurisdictional limit was the monetary value of the contract. The argument of V. that the value of the land exceeded the jurisdictional limit of the Magistrates’ Court because it had value to him other than a monetary one was fallacious.

5. The power conferred by s135(2)(c) of the Act to make ‘any arrangement’ for the ‘carrying into effect’ of the relevant ‘power’ under s135(1), here the power to order specific performance of the contract conferred by s100(1) of the Act, is a very broad one. On its face, it seems sufficiently broad to encompass orders requiring someone else to comply with an obligation primarily cast on a party, when that party has failed to comply with that obligation.

6. The Magistrate acted within power in making orders 1-6 of 6 June 2014. There was no challenge to the exercise of his discretion in doing so, and given that V. had been given multiple opportunities to comply with the order to complete the contract himself and had failed to do so, any such challenge would likely have had limited prospects of success.

7. The conduct of the hearing by the Magistrate did not demonstrate any breach of procedural fairness or bias. Indeed to the contrary – the conduct of the hearing by the Magistrate was entirely appropriate, and in allowing Mr Giza to address him went beyond what was required of him.

8. The determination of the adjournment application by the Magistrate was an exercise of his discretion in a matter of practice and procedure. It could only have amounted to an error of law in narrow circumstances, for example if the Magistrate took into account an irrelevant consideration or failed to take into account a relevant consideration. There was nothing to show any such error. On the contrary, both the recording and the informal transcription of his reasons showed that the Magistrate read and considered the medical certificates, and properly considered other relevant factors, including the history of the proceeding, the repeated failure by V. to comply with Court orders, and the prejudice to WP/L if there was further delay, in the light of the history of the proceeding. He noted that V. had not availed

himself of opportunities to contest the substantive relief, the judgment being by default and not sought to be set aside or appealed, but had repeatedly failed to comply with the previous orders that required him to complete the contract. The Magistrate’s conclusion that the balance of justice favoured refusing the adjournment because of the prejudice that would be occasioned to the then plaintiff by further delay was clearly open to him.

2 Sentencing – White collar crime – general deterrenceIn Aitchison v The Queen MC 02/2016, a defendant was convicted of white collar crime involving the amount of more than $5million. The question was whether general deterrence was relevant as part of the sentencing. Upon appeal against a sentence of eight years’ imprisonment-HELD: Appeal dismissed. 1. There is a series of decisions in which appellate courts have held that the principle of general deterrence is not inconsistent with the version of s16A of the Act that applied at the time A. was sentenced.

2. The unamended s16A of the Act made it plain that the matters which were expressly identified in s16A(2) were in ‘addition to any other matters’. General deterrence has been a feature of sentencing practice throughout all jurisdictions, not just Australia. For it to be excluded, express words would have been necessary.3. The point of the amendment was to clarify the law, not to change it. General deterrence has long been a fundamental aspect of sentencing such that clear language would be necessary to exclude it as a sentencing principle. Parliament did not intend to change the law. Rather, the point of the amendment was to overcome arguments about the proper interpretation of s16A(2) such as that advanced by A. in this case. It seems plain that, in enacting the amendment, Parliament did not intend to introduce something which it considered was not already there.

4. In relation to the statement by the sentencing judge that A.'s previous good character was not a main consideration in fixing the sentence, whilst previous good character remains of relevance, it does not shift the main considerations in sentencing for white collar crime from general deterrence and denunciation, because people who commit these types of crimes usually can do so because of their good character and reputation.

5. In relation to the appeal that the sentencing judge failed to distinguish between white collar offences committed against the public revenue and individuals, on several occasions, courts have said that offences against the revenue are not victimless crimes: everybody suffers. The present argument by A. had only to be explained for its futility to become apparent.

6. As to whether the sentence was manifestly excessive, while the present case involved no comparable breach of trust, the amount dishonestly obtained was very much greater and A. had lied on several occasions when he was asked to verify his expenditure. It may be accepted that the sentence imposed was stern and at the higher end of the range but it was not outside the range for comparable offences.

3 Change of plea – whether a miscarriage of justice occurredIn Weston (a pseudonym) v The Queen MC 03/2016, the accused was found guilty of certain charges and later pleaded guilty to more charges. Subsequently the accused sought to change his plea to one of not guilty but the application was refused by the trial judge. Upon appeal-HELD: Leave to appeal granted but appeal dismissed.Per Redlich JA:1. It was common ground between the parties that the test to be applied was whether a miscarriage of justice would have arisen if W. was not permitted to withdraw his plea of guilty and enter a plea of not guilty. The parties differed in their submissions as to when a miscarriage of justice may arise.

2. The Crown submitted that the question of whether a guilty plea was entered freely and voluntarily, and whether it constituted a true admission of guilt, were in fact one and the same question; the sole test being whether a miscarriage of justice would have occurred if the plea were not changed. The Crown submitted that the onus was on W. to establish any exceptional circumstances that he relied upon in order to invoke the exercise of discretion.

3. A number of propositions, most of them not in controversy on the appeal, may be drawn from the authorities reviewed: General 1. The basis of a plea on arraignment is that in open court an accused freely says what

he is going to do; and the law attaches so much importance to a plea of guilty in open court that no further proof is required of the accused’s guilt.2. The plea of guilty constitutes an admission of all of the legal ingredients of the offence and is the most cogent admission of guilt that can be made. Its significance rests in part upon the high public interest in the finality of legal proceedings.

3. To permit the withdrawal of a plea of guilty before conviction or the overturning of a conviction on appeal where the integrity of the plea has not previously been challenged depends upon there being in the Court’s opinion a miscarriage of justice if the applicant were to be held to his plea.

4. The applicant seeking to question the integrity of his plea, whether before or after conviction bears the onus of establishing such miscarriage.

5. To impugn the integrity of the plea, whether before or after conviction, the applicant must show an ‘issuable question of guilt’ and the existence of some circumstance which affects the integrity of the plea so that it would be a miscarriage of justice to hold the applicant to his plea. Some of the more common examples cited that may justify the conclusion that the applicant should not be held to his plea are that the applicant may not have appreciated the nature of the plea which he had entered, there may be no evidence upon which he could have been convicted, he may not have intended to admit that he was guilty, or his plea may have been induced by fraud or threats or other impropriety or that it was not offered with a consciousness of guilt.

6. It is undesirable to lay down a test which would attempt to define the circumstances in which a miscarriage of justice may be found to arise. The exercise of the discretion is not to be fettered by any preconceptions of limitations arising from the approach taken in previous decisions.

7. A claim whether before or after conviction that circumstances exist which affect the integrity of the plea process must be approached with caution.

Integrity of plea challenged before conviction and sentence8. Where the integrity of the plea is in issue at the time of the plea or is challenged before conviction, the position is as stated in Kumar. Where the applicant seeks to alter his plea before conviction and sentence, the judge may entertain that course upon finding a circumstance established that affects the integrity of the plea.

9. Consistent with the reasoning in the joint judgment in Maxwell and Kumar, even if the plea was free and voluntary it will also be within a sound exercise of the discretion to allow the applicant to change his plea before conviction and sentence if the applicant establish that he did not believe himself to be guilty at the time of the plea but pleaded guilty in order to gain some technical advantage.

10. It is for the applicant to identify the grounds which it is claimed establish a miscarriage of justice and adduce evidence that persuades the judge that such grounds exist.

Integrity of plea challenged only after conviction11. Where the integrity of the plea is first challenged after conviction, proof of a circumstance, that compromises the integrity of the plea is necessary. Since Meissner, decisions have consistently been to the effect that a miscarriage will only arise where some objective circumstance is established that permits the judge to conclude that the plea was attributable to that circumstance and not to a consciousness of guilt.

12. Evidence that an applicant does not believe himself guilty at the time of the plea is relevant to but not decisive of the issue. Such a belief is relevant because it may inform the question whether there is some circumstance that has compromised the integrity of the plea and whether there has been a miscarriage of justice. But the belief is not decisive because, as the long line of authority since Meissner demonstrates, an accused may be bound by his plea notwithstanding a belief that he is innocent at the time of the plea.

13. The expression ‘that the plea be attributable to a genuine consciousness of guilt’ has been consistently treated, particularly on appeal against conviction, as the conclusion which follows where no circumstance has been established that materially affected the integrity of the plea. Where circumstances are found to exist which compromise the integrity of the admission of guilt, the inference that would otherwise be drawn from the plea, namely that it

was made in recognition of guilt, is not then available. The plea is not then to be attributed to a consciousness of guilt but to some other operative cause and a miscarriage of justice may have been established. Where it has not been shown that anything has occurred that affected the integrity of the plea, no miscarriage of justice will ordinarily arise from a refusal to allow the withdrawal of the plea.

4. Having found that W. freely and voluntarily made the plea, there was no basis upon which the trial judge should have concluded that the plea was not a true admission of guilt. For these reasons, the Crown submitted, there was no miscarriage of justice in declining to allow the plea to be withdrawn.

5. The trial judge having rejected W,'s explanation for pleading guilty, no circumstance remained which affected the integrity of the plea. Accordingly, there were no circumstances which could have given rise to the conclusion that the plea was not attributable to a consciousness of guilt. No occasion therefore arose for the trial judge to advert to the conclusion, ordinarily drawn from a plea, that it was attributable to a consciousness of guilt plea. Further, even if his Honour discretely considered W.'s belief in his guilt, there was no explanation which then remained as to why his Honour should have concluded that the integrity of the plea was in any sense compromised so as to require the discretion to be exercised in favour of W. and allow him to amend his plea.

6. Accordingly, leave to appeal was granted but the appeal was dismissed.

Per Whelan and Kaye JJA:7. The test, whether a trial judge should grant leave for an accused to change his or her plea from guilty to not guilty, is whether a miscarriage of justice would ensue if such leave were denied to the applicant. In determining that question, the judge has a discretion which must be exercised judicially in the circumstances. In order to enliven the discretion, the applicant must establish sufficient circumstances that would justify the exercise of the discretion in his or her favour.

8. The judge rejected the three reasons relied on by W. for pleading guilty to the charges. The finding by the judge, that W. understood the charges to which he pleaded guilty, and that he made an informed plea to them, necessarily meant that the judge was satisfied that W. intended to admit and accept his guilt of the offences that were the subject of the charges to which he pleaded guilty. Thus, W. failed to persuade the trial judge that any circumstance existed which would impugn the integrity of his guilty plea, or which could have indicated that his guilty plea was attributable to a circumstance other than a consciousness by him of his guilt.

9. In each case (before and after conviction) the test is the same — miscarriage of justice — although its application will often be different on an appeal after conviction than on an application to the trial judge before conviction, for obvious reasons.

4 Jurisdictional limit for indictable offences in the Magistrates’ CourtIn Finn v Wallace & Stewart MC 04/16, the defendant pleaded guilty to four charges and was sentenced on two of them to 30 months’ imprisonment. The maximum term of imprisonment that can be imposed in the Magistrates’ Court is two years. Upon appeal-HELD: Appeals allowed. Matters remitted to the Magistrates' Court for re-hearing before a differently constituted court. 1. The Magistrate, in sentencing, did not, in the orders for each charge, seek in any way to link charges 3 and 6 together. There was nothing in the orders to suggest that the sentence of 30 months’ imprisonment on charge 3 was an aggregate sentence of the two indictable charges, 3 and 6. But even if the orders contained such a link, it did not overcome the fundamental error that the Magistrate was prohibited by the Act from sentencing F. to 30 months’ imprisonment on charge 3 and 30 months’ imprisonment on charge 6; this prohibition was not in some way ameliorated because the sentencing occurred in the context of imposing an aggregate sentence.

2. Section 9(4)(b)(i) of the Act states that in imposing an aggregate sentence of imprisonment in respect of two or more offences, the Court is not required to pronounce the sentences that would have been imposed for each offence. Having determined to impose sentences on each charge, however, the Magistrate was required to sentence in accordance with s113(1) of the Act. The imposition of a term of imprisonment of 30 months on charges 3 and 6 in the circumstances was ‘impermissible’.

3. Because the Magistrate, in sentencing on each charge, referred to individual sentences

being part of an aggregate sentence and a concurrent sentence did not result in the Magistrate being able to disregard the very clear words of s113(1) of the Act that the maximum term of imprisonment for an indictable offence heard and determined summarily was two years.

5 Coronial determination as to cause of deathIn Mortimer v West MC 05/16, the Coroner published a finding into death without holding an Inquest. The sister of the deceased filed a notice of Appeal.HELD: Appeal dismissed. 1. Contrary to the M.'s assertion, the Coroner was not required to conduct an inquest into the death of the deceased. A Coroner must hold an inquest if, immediately before death, a person was ‘placed in custody or care’. A person in care of the Mental Health Authority is not ‘a person placed in custody or care’. Accordingly, there was no requirement, in the circumstances, for the Coroner to conduct an inquest.

2. M. contended that a locum doctor had been found to be untruthful and the Coroner should have stated this in his Finding and the evidence that M. did not adhere on occasions to the medical plan of management of the deceased as commented by the Coroner in his Finding was non-existent.

3. M. disputed the version of a statement provided by a doctor to the Coroner but the Coroner referred to this matter. Accordingly, the issue raised was not a point of law and was not deserving of any further attention.

4. M. took objection to the comments made by the Coroner in his reasons concerning administration of medication to the deceased by M. The comment was made in the context of M.'s criticism of the medical management of the deceased. The Coroner was permitted to make comments ‘on any matter connected with the death, including matters relating to public health and safety or the administration of justice’. The comment of the Coroner was permissible and was based on ‘the investigation’ conducted by the Coroner.

5. M. failed to identify a point of law to support her appeal. Even if an appeal ground could have been formulated by relying upon a failure to find facts, any such failures did not constitute an arguable case on appeal.

6 Application for a permanent stay of theft charges granted.In DPP v Giurina and The Magistrates’ Court of Victoria MC 06/16, the manager of a Body Corporate was charged with 182 thefts in relation to his conduct in the affairs of the Body Corporate. Action had already been taken in VCAT with an order being made that G. return all records and funds held or controlled by him. A later order was made by VCAT that there was insufficient evidence to show that G. had not complied with the earlier orders. When the charges came before a Magistrate, a permanent stay was granted. Upon appeal-HELD: Application granted. Magistrate in error. Matter remitted to the Magistrates' Court for rehearing before another Magistrate.1. All that the Vice President of VCAT decided was whether or not G. was in breach of an order for failing to transfer all funds held or controlled by him at the date of Deputy President Lulham’s orders of 1 May 2012.

2. The Vice President of VCAT held that it had not been demonstrated that there was a credit balance on 1 May 2012 when the Deputy President of VCAT made his order and therefore the apprehended contempt in failing to deliver up that credit balance was not made out.

3. In the present case, it could not be said that the decision by the Vice President of VCAT decided any matter which would have directly touched on the issue raised by the charges of theft against G. It should also be noted that the events which formed the basis of the theft charges all predated the orders of the Deputy President of VCAT and that G. was charged with the thefts prior to the decision of the Vice President of VCAT.

4. The acquittal for contempt had no negative bearing on the prosecution case. The absence of funds in the account on a specific date did nothing to undermine the prosecution case, and was in no way inconsistent with the elements of the offence of theft. Any conviction for theft would not controvert the acquittal for contempt. The suggestion that the Vice President of VCAT made any decision that G. had not formed an intent to permanently deprive the body corporate of funds was simply nonsensical.

5. The error made by the presiding Magistrate was fundamental, because it was the basis on which he decided that the principles set out in R v Carroll [2002] HCA 55; (2002) 213 CLR

635; 194 ALR 1; 77 ALJR 157 were applicable to this case.

6. Accordingly, the Magistrate was in error in making the order to permanently stay the charges instead of determining them.

7 Claim for monies due under a guarantee – construction of terms of the guaranteeIn Asset Flooring Pty Ltd v North MC 07/16, a flooring company supplied and fitted flooring to a company under a credit account whereby North personally guaranteed payment of all monies owing. When Asset later claimed monies due, the Magistrate concluded that the claim was premature and dismissed the claim. Upon appeal-HELD: Appeal allowed. Magistrate's order set aside and remitted to the Magistrate for further hearing and determination.1. The rights and liabilities of parties under a provision of a contract are determined objectively, by reference to its text, context (the entire text of the contract as well as any contract, document or statutory provision referred to in the text of the contract) and purpose. In determining the meaning of the terms of a commercial contract, it is necessary to ask what a reasonable businessperson would have understood those terms to mean. That enquiry will require consideration of the language used by the parties in the contract, the circumstances addressed by the contract and the commercial purpose or objects to be secured by the contract. Ordinarily, this process of construction is possible by reference to the contract alone. Indeed, if an expression in a contract is unambiguous or susceptible of only one meaning, evidence of surrounding circumstances (events, circumstances and things external to the contract) cannot be adduced to contradict its plain meaning.

Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd [2015] HCA 37; 325 ALR 188; (2015) 89 ALJR 990, applied.

2. Bearing in mind the language used in the contract, the circumstances that it addressed and its commercial purpose or object, a reasonable business person would not have understood clauses 4 and 8 of this guarantee to operate in the manner articulated by the Magistrate, which did not correctly, or perhaps fully, identify the relevant test. By reason of that error, the guarantee was incorrectly construed.

3. There was no relevant ambiguity in the language used in the contract. The two clauses were intended to apply in different circumstances. To construe cl 8 as the charging clause was plainly inconsistent with the express words of each of clauses 4 and 8 and the document read as a whole. Further, to construe cl 4 as limited by the reference to ultimate balance in the concluding part of cl 8 resulted in a construction of the guarantee that made commercial nonsense or a working commercial inconvenience.

4. The Magistrate ought to have concluded that because there was no evidence of any dividend, composition or payment having been received by the company from the customer, cl 8 was not enlivened in any way in its operation on the obligation of the parties under the guarantee. The text of the guarantee did not assign any operative effect to the act of lodging proof of debt with a liquidator on the obligations that it creates. To the contrary, the relevant fact enlivening the operation of that provision was the receipt by the creditor of a payment, which never occurred.

5. The only conclusion open to the Magistrate was that, properly construed, the guarantee provided that upon the appointment of a liquidator to Rahan, all of the moneys owing at the time (alleged to be $70,515.50) and which may have become owing thereafter (alleged to be a further sum of $39,161.66) became immediately owing and due and payable by the guarantor N. to the creditor AFP/L without notice or demand.

8 Claim by company against owner of shares in a block of units for outstanding maintenance fees and special leviesIn Sullivan v Greyfriars Pty Ltd MC 08/16, the owner of a unit was ordered to pay amounts owing pursuant to levies imposed by a company. Upon appeal-HELD: Leave to appeal granted only in relation to the order for the payment of interest but appeal dismissed.1. Ms McLennan, a director of GP/L, gave evidence describing the document produced to the Court as containing the Articles, and the magistrate was therefore entitled to proceed on the basis that it contained the relevant operative provisions of GP/L's Articles of Association governing the imposition of levies.

2. The resolutions which were placed in evidence were resolutions of the annual general meeting of the respondent rather than of any meeting of the directors. While the resolutions recorded in the minutes of the general meetings may have had no effect, they were still evidence of the directors having first determined and then placed before the members the

annual budgets (which included the maintenance levies) and resolutions for the maintenance levies.

3. It could be inferred from Ms McLennan's evidence that the directors were instrumental in deciding the amounts of the levies, and the minutes could be taken as showing that the general meeting and the directors acted in tandem in this respect. Ms McLennan gave evidence that the amounts in question were owing by S., and the Registrar accepted and acted upon her evidence. In our opinion, the Registrar was entitled to do so.

4. There was no basis for setting aside the orders for payment of the levies on the basis of any denial of natural justice. While the claims were amended at a regrettably late stage, S. was not disadvantaged as a result. The net effect was to reduce the overall claim by more than half, as a result of abandoning a claim for legal costs and other disbursements. While the amounts of the levies were updated and increased, the substance of the claims and the manner of their proof was unchanged. In the circumstances, there was no denial of natural justice.

5. In relation to the ground of appeal which contended that the Registrar failed to consider S.'s defence regarding the provision of notice or to provide adequate reasons, it may be accepted that the Registrar's reasons were very brief and did not explain why she was ‘satisfied that the levies had been properly raised’. But it was tolerably clear from the state of the evidence, which the Registrar said she had carefully considered, that the decision was based substantially on the evidence of the Director Ms McLennan. While the Registrar did not advert to the question whether adequate notice had been given of the necessary resolutions, there was no basis in the evidence, or S.'s oral submissions at trial, for thinking that shareholders were required to be given notice of meetings of directors (as distinct from meetings of shareholders). S.'s argument at trial depended on the existence of such an obligation. The Registrar ought to have dealt with the argument, but her failure to do so did not give rise to any miscarriage of justice.

9 Civil proceedings – costs – whether order final or interlocutoryIn Sam Law Pty Ltd v ADZ Homes Pty Ltd and Ors MC 09/2016, a Magistrate made orders in relation to claims before the Court. On appeal-HELD: Appeal dismissed.1. In relation to the submission by SAM Law that the Magistrate's order striking out the proceeding was a final order, the order made by the Magistrate was not a final order. While for all practical purposes the orders striking out the proceeding brought the proceeding to an end, it was clear from the authorities that one looks to the legal, rather than the practical effect of the orders. Orders which might practically bring finality to a civil proceeding may still be interlocutory.

2. In relation to the submission that the Magistrates' Court did not have jurisdiction to hear the claim because of the Court's jurisdictional limit of $100,000, the dispute was over who had the right to possession of the certificate of title and not possession of the property.

3. Even if the Magistrate had done what SAM Law asserted he should have done, that is, heard and determined the summary judgment application prior to hearing the application for leave to discontinue, it seemed quite likely that this application would have been unsuccessful. In any event, it was difficult to see how the Magistrate was in error in hearing the application for discontinuance first, leaving the summary judgment application in abeyance. It was an approach consistent with sheer common sense, and the court’s and the parties’ obligations under the Civil Procedure Act. There was little point in devoting substantial court resources to arguing the merits of a proceeding which was otiose.

4. To the extent that the appeal sought to attack the substantive decisions of the Magistrate to proceed with the application for discontinuance first, to not find in favour of SAM Law upon its summary judgment application, and to order that the proceeding be struck out with no order as to costs, the Magistrate made no discernible error of law. He applied the correct test, and the outcome was unremarkable in the circumstances.

5. As for the procedural fairness grounds relied upon, SAM Law was represented by counsel. In an adversarial system it cannot be the case that an obligation is imposed upon a judicial officer to prompt a barrister or seek confirmation that a barrister had made every point he or she wished to make, or bring to their attention points they ought to be making.

6. The contention that a judicial officer should restrain themselves in engaging in dialogue with counsel about the strength or otherwise of their submissions is, in the present

day, unsupportable. It is not only parties and practitioners who are subject to the obligations under the Civil Procedure Act to promote the efficient use of court resources and ensure that the resources devoted to an issue are proportionate: the same obligations are imposed upon judicial officers as well to identify and efficiently deal with the real issues in dispute. In the present case, the dispute received the attention it warranted in all of the circumstances.

7. The dismissal of the claim against Best Hooper was entirely consistent with the Magistrate’s ruling with respect to the costs of the proceeding, which in effect found that the proceeding was reasonably brought, and that there were arguable defences, and that each party ought to bear their own costs. In those circumstances, a finding that a firm of solicitors had breached its obligations under s18 of the Civil Procedure Act by wrongly signing a Proper Basis Certificate would be arguably perverse.

10 Sentencing – Youth Justice Centre Order with a Community Correct OrderIn DPP v Jordan and Anor MC 10/2016, a Magistrate sentenced a 20-year old defendant to a Youth Justice Centre Order and a Community Correction Order. Upon appeal-HELD: Appeal granted and the convictions and sentences imposed amended.1. Although there was power under s44(1) of the Sentencing Act 1991 ('Act'), as discussed in DPP v Boulton [2014] VSCA 342, to impose a combined sentence in respect of one offence, such sentence involving a term of imprisonment for two years or less and a CCO, there was no equivalent direct power under s44(1) to combine a CCO and a YJCO. Imprisonment is a wholly different sentencing order from youth detention and there is no warrant for construing the word imprisonment as if it encompassed detention in a youth justice centre.

2. In this case, the six-month YJCO was imposed concurrently with a CCO on charge 7. Similarly, YJCOs were imposed concurrently with CCOs on each of charges 10 and 11. It was beyond the power of the sentencing court to impose those orders. However, the sentences on charges 10 and 11 did not carry the additional vice of being incapable of being complied with under ss38(2) and 45(1)(c) of the Act, because the YJCOs on each of those two charges were only for a period of three months.

3. As at the hearing of the appeal, J. was aged 21 years and therefore too old for a YJCO. J. had undergone three months’ detention at a youth justice centre pursuant to the orders made by the Magistrate. Because the YJCO was removed on the appeal, J. was capable of commencing the CCO on similar terms to those fixed by the Magistrate.

11 Costs following civil proceeding trialIn Dual Homes Pty Ltd v Moores Legal Pty Ltd and Anor MC 11/2016, the plaintiff was successful and the defendant successful on some discrete issues. Upon appeal-HELD: Defendants to pay 70% of the plaintiffs' costs of the proceeding on a party/party basis to 1 April 2013 and thereafter on a standard basis.1. The Victorian Court of Appeal in Chen & Ors v Chan & Ors [2009] VSCA 233 distilled the relevant principles as to costs as follows:

(1) The general rule is that costs should follow the event. Absent disqualifying conduct, the successful party should recover its costs even where it has not succeeded on all heads of claim. (2) The Rules of Court permit significant flexibility in determining questions of costs. In particular, the Court is entitled to examine the realities of the case and will attempt to do ‘substantial justice’ as between the parties on matters of costs. (3) Where there is a multiplicity of issues and mixed success has been enjoyed by the parties, a Court may take a pragmatic approach in framing the order for costs, taking into consideration the success (or lack of success) of the parties on an issues basis. Generally, if such an order is made, it is reflected in the successful party being awarded a proportion of its costs but not the full amount.

(4) A Court may, when fixing costs in a claim where there has been mixed success, take into account complications which it considers will arise in the taxation of costs, as part of its consideration of the overall interests of justice.

(5) Where a Court determines to make an order apportioning costs, then it does so primarily as ‘a matter of impression and evaluation’, rather than with arithmetical precision, having considered the importance of the matters upon which the parties have been successful or unsuccessful, the time occupied and the ambit of the submissions made, as well as any other relevant matter.

(6) Where a number of parties have had the same representation, there is a ‘rule of thumb’ as to the apportionment of costs, namely that, where some of those parties have been successful and others have not, each successful party is only entitled to his or her proportion of the costs incurred on behalf of all, plus the costs, if any, incurred exclusively on his or her behalf. The primary issue for determination in such a case is that of fairness as between the parties, having regard to the manner in which the trial, or appeal, has been conducted.

(7) Usually, an order for costs will be made on a party/party basis. But an order for costs on a solicitor/client or indemnity basis may be made where special or unusual circumstances have been demonstrated, for example, by establishing misconduct in the proceeding, that the proceeding was brought for an ulterior purpose, or that it was patently unreasonable to institute, or maintain, the proceeding. Special circumstances may also include the making of an allegation of fraud which is not proved.

2. As the plaintiffs succeeded in the proceeding, they recovered, inclusive of interest, $585,084.52. That was the primary event which costs should follow.

3. The plaintiff’s judgment was more favourable to it than the settlement offer that it received prior to trial that was disclosed by the parties.4. The quantification of the property losses was a sufficiently discrete issue to permit the conclusion that the defendants succeeded on that issue although they lost on all other issues.

5. The plaintiffs’ submission that they should have their costs of the issues on which they succeeded on an indemnity basis because, contrary to s18(d) of the Civil Procedure Act 2010 (Vic), the defendants did not have a proper foundation for the factual and legal positions that were advanced at trial, was rejected. That conclusion did not follow from the defendants’ failure to succeed on those issues.

6. As a matter of impression and evaluation, having considered the significance of the issues upon which the parties had been successful or unsuccessful, the time occupied and the ambit of the submissions made, substantial justice was achieved between the parties on matters of costs by ordering that the plaintiffs recovered 70% of their costs.

12 Accident Compensation claim – dismissed by MagistrateIn Hettiarchici v RACV MC 12/2016, an Accident Compensation claim was made setting out the reasons why the claim should be successful. The Magistrate dismissed the claim. Upon appeal-HELD: Appeal allowed. Magistrate's order set aside and remitted to the Magistrates' Court for hearing by a different Magistrate.1. In relation to the question whether the Magistrate provided adequate reasons, the failure of a judicial officer to provide adequate reasons is an error of law. In view of the fact the trial went for six days and 400 pages of transcript were produced, it was surprising but not necessarily fatal that the Magistrate's decision was sparse. In the Magistrate's judgment, no specific reference was made to any of the medical evidence nor any detail about the evidence given by H.

2. It was not just the evidence of H. (which was lengthy) which needed to be considered and pronounced upon (even if only in a cursory fashion), but also that of a number of medical practitioners, who had histories consistent with his account and had, based on that history, formed a diagnosis supportive of his claim.

3. It was necessary for the Magistrate to explain the grounds of her conclusion in sufficient detail to enable a reviewing court (in this case the court dealing with the point of law on appeal) to see the grounds upon which the conclusion was based, but without detailed reasoning as to the evidence. When considered in the context of a six-day trial with a considerable body of evidence, the Magistrate’s reasons in this case were inadequate.

4. The acceptance (or otherwise) of the evidence of the claimant H. and the medical practitioners was of critical importance and should have been addressed squarely – not left to inferences and the reading in to the reasons of words in an attempt to decipher the basis for the Magistrate’s decision. It was incumbent upon the Magistrate to state, in terms (and not by implication), her conclusion as to acceptance or otherwise of the evidence of H. and the medical practitioners.

5. The reference to H.'s failure to seek medical treatment in the months leading up to

December 2013 did not, in and of itself, lead to the conclusion that the Magistrate rejected his evidence.

6. In summary, H. made out his case that the reasons provided by the Magistrate were inadequate.

7. The Magistrate's conclusion that there was no medical material to support the claim in relation to stress and anxiety demonstrated a fundamental misconception of the evidence. A number of doctors, either in whole or part, supported the proposition that H.'s mental condition was related to his employment during the relevant period (and not just to the bullying/harassment or management action). To say that there was no medical material was an erroneous finding of fact unsupported by the evidence.

8. Accordingly, H. established an error of the law on this ground.13 Failing to vote: non-conviction fine on Commonwealth offence

In Toscano v Magistrates’ Court of Victoria and Stubbs (Australian Electoral Commission) MC 13/2016, T. was charged with failing to vote at a Federal election. T. submitted that compulsory voting was unconstitutional but the Magistrate concluded that the Court lacked jurisdiction to determine such a matter and imposed a fine without conviction. Upon appeal-HELD: Appeal allowed. Magistrate's order quashed and remitted to the Magistrates' Court for hearing before another Magistrate.1. The Magistrates’ Court has jurisdiction to hear and determine summary offences, including an offence under s245 of the Commonwealth Electoral Act 1918 ('Act'). In the course of hearing and determining whether such an offence had been committed, the Magistrates’ Court had jurisdiction to determine a constitutional issue such as that raised by Dr T. That issue fell within one of the limits set by the Magistrates’ Court Act 1989 and referenced by s39(2) of the Judiciary Act, namely that the proceedings relate to a summary offence.

2. Accordingly, the Magistrate denied Dr T. procedural fairness and erred in concluding that the Magistrates' Court lacked jurisdiction to determine Dr T.'s submission that s245 of the Act was unconstitutional.

3. The Magistrate had no power to make an order which did not record a conviction but simultaneously fined Dr T. $170.00.

4. The terms of s19B of the Crimes Act 1914 (Cth) do not permit the imposition of a fine without recording a conviction which the magistrate ordered. The nature of the orders which might be made by a magistrate are spelled out in section 19B. The discretion vested in the magistrate permits the magistrate to either convict and impose the appropriate penalty, or to dismiss the charge or to discharge the person without proceeding to conviction upon that person entering into what is commonly called a bond to be of good behaviour.

Commissioner of Taxation v Doudle [2005] SASC 442; (2005) 195 FLR 76; 61 ATR 221, applied.

14 Time limit for bringing action – what constitutes an “order”In O’Grady (Victorian WorkCover Authority) v Magistrates’ Court of Victoria and Ors MC 14/2016, a Magistrate, after conducting a special examination procedure in relation to the prosecution of an employer for a fatal industrial accident, made an order for costs against the WorkCover Authority. The parties said they would draft the orders made but did not do so and 55 days later, VWA sought an order to quash the Magistrate’s order. HELD: Application for an extension of time refused and the originating motion dismissed.1. From the circumstances, it was sufficiently certain that the Magistrate made a costs order on 19 June 2015. There was sufficient certainty, and objectively, that was the apparent intention and effect. It was something more than a statement of the result or the making of a provisional order. The result bespoke the order. It was not as if the matter called for conception of orders or working out of orders to effectuate the result. The invitation to prepare a ‘formal’ order did not derogate from the pronouncement of an immediately effective order.

2. The VWA were looking for judicial review on a point which it conceded below even though it later tried to re-open. The concession was something that might disqualify ultimate discretionary relief for certiorari. But the VWA said there was a question of general importance about the power of the Magistrates’ Court to order costs of legal representation in favour of examinees in this field of workplace prosecutions. There is at least an arguable case, but even if the case was a strong one, other factors may outweigh the merits such that overall it could not be said that there were special circumstances justifying the extension.

3. Weighing up all factors in the events that occurred, VWA's case on special circumstances was not deserving. What prevailed was that the predicament as obtained was of the informant’s own making, and made by its concession on the very point on which review was being sought in circumstances where there was nothing to obscure the point. The peculiarities of the case made this an unsuitable vehicle to test the point about power, despite the concession. The point can be taken again if it arises, as is distinctly possible, on another occasion. However, there was no real injustice in refusing an extension.

15 Estoppel – finding made – whether person estopped from contesting causation in subsequent proceedingIn Laratae v Dean’s Pty Ltd MC 15/2016, an employee applied to the County Court for compensation in relation to an injury suffered whilst working. The application was dismissed on the basis of limited medical evidence as to the permanency of any loss earning capacity so the employee filed an amended Complaint in the Magistrates’ Court seeking entitlements but the Magistrate held that the employee was estopped from arguing that her employment was not a significant contributing factor because of the decision made by the County Court judge. Upon appeal to the Supreme Court, the judge held that the County Court Judge’s decision was not a final and conclusive determination and the medical questions could be referred to the Medical Panel. Upon appeal-HELD: Application for leave to appeal refused.1. When one construes s134AB of the Act (including, as it does, sub-s(19A)), one comes to the conclusion that Parliament did not intend that findings made along the way to the determination of a serious injury application would be finally determined so as to preclude them being re-litigated subsequently. It is to be remembered that serious injury applications are trials on affidavit where witnesses are ordinarily not able to give viva voce evidence unless the party not calling the relevant witness has given a notice requiring that witness to attend for cross-examination. Further, as the practice notices that have existed in respect of these applications show, these applications have traditionally been conducted in a way that limits the ability of parties to engage in fully contested hearings in the sense that there is a significant reliance upon affidavits, medical reports and other documents, while the times for adducing oral evidence or cross-examining witnesses are held under tight control by the judges who hear these applications.

2. As was submitted by the employer, the acceptance of L.'s submissions would result in the potential for the creation of two conflicting and mutually exclusive issue estoppels. If L. was to pursue a common law claim for damages, pursuant to the leave granted by the County Court judge, to a final conclusion, the court hearing the common law claim for damages might determine that L.'s claimed injury was not employment related (s134AB(19A) preventing L. in her common law claim from relying upon any issue estoppel said to have been created by the judgment in the serious injury application). The finding on L.'s damages trial would then give rise to an issue estoppel that is to the opposite effect of that for which L. contended. By its very nature there could not be the possibility of conflicting issue estoppels arising out of the one court between the same parties in related litigation.

3. There was no substance in L.'s contention that the County Court judge’s finding on causation in the s134AB application gave rise to an issue estoppel.

4. Accordingly, L.'s proposed appeal had not been shown to have any real prospect of success and was refused.

16 Variation of an interim Family Violence Intervention OrderIn L v L and Magistrates’ Court of Victoria MC 16/2016, a Magistrate purported to vary an interim family violence intervention order on an ex parte basis and where no application had been made by a party for such variation. Upon appeal-HELD: The Magistrate's purported variation was beyond power.1. There are prohibitions on persons recording court proceedings, publishing such a recording, or transmitting such a recording to another person imposed by ss4A-4C inclusive of the Courts Security Act 1980 (Vic). The prohibitions are subject to exceptions, including an exception for recordings prepared by employees of Court Services Victoria or authorised by Court Services Victoria. The recordings from which the solicitor for the plaintiff caused transcripts to be made were provided by the Magistrates’ Court itself. Accordingly, it was assumed that they were prepared either by employees or agents of Court Services Victoria and so the prohibitions did not apply.

2. The Magistrate said on 7 September 2015 that she could only make a ‘continuing order’ if she was satisfied that there were grounds. If by this observation she meant that she was required to reconsider the interim order, on this its first return after service, that was incorrect. If an interim order is to be reconsidered prior to final hearing, and the application

has not been withdrawn, recourse must be had to the provisions in the Family Violence Protection Act 2008 dealing with revocation and variation.

3. The Magistrates’ Court has no power on its own initiative to vary an interim order made to protect an adult. The Court may only vary or revoke a family violence intervention order on its own initiative, i.e. on its own motion, in relation to certain orders for the protection of a child. In the case of orders for the protection of an adult, and leaving aside variations by consent for the moment, variation or revocation of a family violence intervention order, including even an interim order made ex parte, is only permitted on written application. The persons who may apply to vary or revoke an order include the parties, the protected person (if not a party), or a police officer, but in the case of the respondent to the application the leave of the Court is required.

4. No application at all, let alone a written application, was made by either the plaintiff or the first defendant, or indeed any other person, to the Magistrate on 7 September 2015 to vary the original ex parte order made on 28 August 2015. She acted on her own initiative. It followed that she acted without power, and the purported variation was liable to be quashed for jurisdictional error.

5. The Family Violence Protection Act 2008 also specifies certain matters that the Court must consider on application to vary or revoke a family violence intervention order, and that where an interim order is made to vary a family violence intervention order, it must be on evidence. The Magistrate did not observe these requirements.

6. The Magistrate alerted the parties at an early stage to her concern that there were limited grounds for a ‘continuing order’, and reiterated that view after hearing from them. She did not, however, at any time before announcing the changes that she would make to the order explicitly foreshadow that she would change it, or how. She simply announced those changes after the parties came back before her after discussions between them, without giving them the opportunity to address her on the proposed changes or call evidence in relation to them. Had the Magistrate had power to vary the order on her own initiative, it was strongly arguable that procedural fairness would have required her to give the parties that opportunity.

7. The Magistrate could not correct an order she had made without jurisdiction, once that order had entered into the records of the Court and correctly reflected her intention. It followed that the impugned order could only be corrected on appeal or review. Appeal was not available as the order was not a final order, as is required for appeal on a question of law pursuant to s109 of the Magistrates’ Court Act 1989 (Vic). This proceeding was commenced on a correct view of the law.

8. The plaintiff made an application for a certificate under s7 of the Appeal Costs Act 1998 (Vic). That section provides a limited right of recovery to a successful appellant in an appeal on a question of law from an order made in a civil proceeding in the Magistrates’ Court where the Supreme Court refuses to order the respondent to pay the appellant’s costs. As it is a precondition of the section that the respondent has not appeared in the proceeding below, or in the appeal, the section appears especially apposite where a costs order is refused because of non-appearance on the appeal.

9. The proceeding was necessary because the court below could not correct the impugned order. It was successful, both because the plaintiff’s submissions were accepted and because the court below had done so. The plaintiff did not seek final relief because the first defendant also acquiesced to restoration of the earlier interim order, but she did so only after the institution of this proceeding and its first return date. The amount that the plaintiff could recover under s7 was likely already incurred by him by that date. Accordingly, an indemnity certificate was granted to the plaintiff under s7 of the Appeal Costs Act 1998.

17 Service of civil complaint interstateIn Lang v Carron Investments Pty Ltd MC 17/2016, a civil complaint was served on a party interstate but the affidavit of service failed to disclose that a Form 1 Notice under the Service and Execution of Process Act had been served on the party. After a default judgment was entered against the party, an application for a rehearing was made but was unsuccessful. Upon appeal-HELD: Appeal allowed. Magistrate's order quashed and the default judgment set aside.1. The following propositions were not in dispute between the parties:

(a) that judgments which were irregularly obtained ought to be set aside, irrespective of the merits of L's claims; and

(b) that in order to effect valid service outside Victoria, the relevant requirements of the SEPA must be complied with, including the terms of s16 of the SEPA, which provides that service is effective only if copies of such notices as are prescribed are attached to the process, or the copy of the process, served.

2. The decision of the Magistrate to refuse to set aside the default judgment was not arbitrary, capricious, or even plainly unjust. However, the reasons made no reference to the question whether the default judgment was irregularly obtained because the first affidavit of service did not provide evidence, or sufficient evidence that service of the complaint had been validly effected. Accordingly, it was possible to impugn the decision on the basis that it was not possible for a court to comprehend how the decision was arrived at, and that the decision lacked an evident and intelligible justification.

3. Rule 10.02 of the Magistrates' Court Civil Procedure Rules 1989 ('Rules') provided that any application for an order in default of defence must be accompanied by an affidavit or declaration of service of the complaint. The affidavit or declaration of service must evidence valid service of the complaint, which, in the case of service interstate, must include evidence of service of a SEPA notice. The first affidavit of service made no reference to a SEPA notice so that the evidence of service in the first affidavit of service was insufficient to enliven the jurisdiction of the Magistrates' Court to grant default judgment.

4. Having regard to the terms and policy of the Rules, including the provisions of Part 1 of Order 10 of the Rules, not simply 10.1 and 10.2 of the Rules, that in order for the Court to grant judgment in default of defence, the evidence before the Court must prove valid service of the complaint in question, including, in the case of defendants resident interstate, service of a SEPA notice. The provisions of Part 1 of Order 10 provide for an expeditious means of entering judgment against debtors who fail to dispute the existence of debt.

5. The implied finding of the Magistrate that the first affidavit of service constituted evidence of valid service sufficient to satisfy the registrar that an order for default judgment ought to have been made was not, particularly in the absence of an evident or intelligible justification, legally reasonable. Whilst it was open for the Magistrate to find on all of the evidence that valid service had been effected upon L., the first affidavit of service was not capable, of itself, of providing adequate evidence of valid service.

6. Accordingly, the default judgment was set aside, but the Magistrate’s findings that valid service was in fact effected on L. was not reversed. It was arguably open to CI. to apply for dispensation for compliance with the Rules under rule 2.04 of the Rules, as the proceeding remained on foot. What was lost was the opportunity to immediately enforce the debt which was the subject of the claim, not the right to prosecute the claim, at least not at this stage. For completeness, there had not been any relevant delay on the part of L. in bringing the application to set aside the default judgment or prosecuting this proceeding.

18 Sentencing – effect of delay on sentenceIn Marasco v The Queen MC 18/2016, an office manager was charged with dishonesty involving a financial advantage of $26,000. There was a delay of more than five years from the last offending date to the date of sentencing. Upon appeal-HELD: Leave to appeal granted and allowed. The term of imprisonment set aside and varied to 160 days and the imposition of the CCO confirmed.1. Substantial delay between the apprehension of an offender and the date of sentence will mitigate the sentence provided the delay is not attributable to the fault of the defendant.

2. Some delay is almost always necessary if white-collar crimes are to be properly investigated. Nevertheless, to a significant degree the delay in this case was not due to M.'s fault.

3. In the present case, it was apparent first that much of the delay was due to hearing dates falling through as a result of no fault of M. Secondly, the exchange of expert reports and consequent negotiation resulted in a very material reduction in the number of charges. It could not be regarded as a case of deliberate delay tactics. The acquittal on four of the remaining charges also confirmed this conclusion.

4. Accordingly, M. was entitled to the full benefit of his good record since the offending and apparent rehabilitation. He was also entitled to allowance for the ongoing stress and anxiety the delay had caused him.

5. The sentencing judge was correct to emphasise that the offending involved extended and repeated duplicity and dishonesty over a 20-month period, a gross ongoing breach of trust and a serious impact upon the victim employers. Also, the sentencing judge was correct to emphasise that M. had demonstrated no remorse or apparent insight into his offending. 6. Nevertheless, the amount involved in the dishonesty was relatively limited, being approximately $26,000. M. was a relatively young man at the time of the offending (being 22–24 years old) and had no prior convictions. The five-year delay which occurred between the discovery of his offending and the date of sentence was substantially due to matters which were not M.'s fault. He had demonstrated a capacity to work and live honestly over that period. He was married and living a stable life. His prospects of rehabilitation were regarded as good. The delay in the matter had also caused him continuing anxiety and stress as corroborated by the psychologist’s report and this constituted a material consideration and an additional punishment.

7. In all the circumstances, the sentencing judge’s order was varied to substantially substitute time served for the term of imprisonment imposed, while maintaining the imposition of the two year Community Corrections Order.

19 Estate agent had non-solicitation clause in contract of employmentIn WP (Noble Park) Pty Ltd v Issak MC 19/2016, an estate agent signed a written contract of employment whereby, if his employment was terminated, he was not allowed to solicit or obtain the custom of any person who was a client of the business. The complaint was dismissed. Upon appeal-HELD: Appeal upheld. Magistrate's order set aside and the proceeding remitted to the Magistrates' Court to be heard by another Magistrate.1. The Magistrate construed the phrase ‘in any circumstances whatsoever’ as constrained by the specific circumstances listed in cl 17. However, this approach was inconsistent with the ordinary meaning of the words of cl 8.4(b). In lieu of ‘whatsoever’, it would have been a very simple matter for the contract to have stated, ‘prescribed in clause 17’.

2. Viewed objectively, the purpose of cl 8.4(b), which would have been apparent to both parties when the contract was signed, was to confer a benefit upon WP. and a burden upon I. during the period of 9 months post termination of his employment. To construe the obligations imposed upon I. by cl 8.4(b) as not applying in circumstances where he resigned, seriously undermined the benefit conferred upon WP. and the burden imposed upon I. There was no rational reason why the restrictions imposed upon I. by cl 8.4(b) should not have been activated upon his resignation. Indeed, as occurred in the present case, a non-solicitation clause is equally, if not more, likely to have work to do in circumstances where a former employee has resigned, establishes his or her own business, and is looking to build a client base.

3. Accordingly, the appeal was upheld, the orders of the Magistrate set aside and the proceeding remitted to the Magistrates’ Court to be heard by a Magistrate other than the Magistrate who dismissed the proceeding.

20 Drink/driving – charge laid without driver being cautioned.In Moir v Stokes MC 20/2016, charges of drink/driving were laid without the driver being cautioned before being questioned. The charges were found proved. Upon appeal-HELD: Application for judicial review dismissed.1. At the hearing in the County Court, M. deliberately elected to place her submissions upon a foundation of law, not upon a foundation of fact. The County Court judge rejected the objection by addressing the legal foundation relied upon. Accordingly, the judge committed no breach of the rules of natural justice or other error of law in the manner in which he did so.

2. It is clear that s139(2)(b) of the Act specifies a condition that relates to the state of the mind of the investigating official and not the state of the actual evidence. The applicability of s139(2)(b) turns on whether the investigating official (subjectively) had formed the belief that, not on whether the court might (objectively) find that, there was sufficient evidence to establish that the person had committed an offence. Therefore, a positive result in a preliminary breath test, and the reading recorded, may be a relevant, but would not be a determinative, consideration.

3. At the level of statutory interpretation, which was M.'s submission, it can only be based on s139(2)(b) of the Evidence Act and/or s53, s55 or some other section of the Road Safety Act. There is simply nothing in those provisions to justify this interpretation. Something in the nature of a statutory deeming would be needed and there is none. The question whether the officer held the belief was a particular question of fact and could not be answered by

reference to general propositions of the kind advanced M. 21 Evidence – circumstantial evidence – reasonable hypothesis consistent with

innocenceIn Allen v Brown MC 21/2016, offences of burglary and theft of motor vehicles were dismissed as the account of events could not be rejected as a reasonable possibility. Upon appeal-HELD: The motion to review allowed, the dismissals all set aside and substituted a determination that each of the charges was proved.1. The inference that the prosecution was asking the Magistrate to draw was an inference that B. was one of the three thieves who burgled and stole from the two supermarkets. The Magistrate took an incorrect approach by looking at particular bodies of evidence in isolation, and deciding that conclusions adverse to B. could not be drawn from the pieces of evidence that he looked at in isolation. The Magistrate should have looked at the whole of the evidence concerning property at the Lenna Street premises, the glass fragments, and sunglasses with DNA on them, and considered whether it could properly be inferred from all of that evidence that B. was one of the three thieves.

2. It was open to the Magistrate to consider the whole of the uncontroversial circumstantial evidence, and, without drawing any intermediate conclusion, reach a conclusion of guilt.

3. Alone, neither the evidence about the glass, nor the evidence about DNA on the sunglasses, nor the presence of the stolen property, might have warranted a conclusion of guilt. But the question that should have been asked was whether there was any rational hypothesis that was consistent with B.'s innocence.

Chamberlain v The Queen (No 2) [1984] HCA 7; (1984) 153 CLR 521 at 535; 51 ALR 225; (1984) 58 ALJR 133; and

Shepherd v The Queen [1990] HCA 56; (1990) 170 CLR 573; 97 ALR 161; (1990) 65 ALJR 132; 51 A Crim R 18, referred to.

4. Once one analysed the uncontroversial evidence, it was clear that no reasonable Magistrate could have considered that there was a rational hypothesis consistent with B.'s innocence. It followed that the only appropriate conclusion was that each of the charges was proved beyond reasonable doubt. The circumstances established beyond reasonable doubt that B. was one of the three thieves, and it followed that he was guilty of all the six charges.

22 Victims of crime assistance – where applicant had previously received paymentsIn Pham v Victims of Crime Assistance Tribunal MC 22/2016, an application was made to VOCAT for financial assistance but was refused because he had already received more than the statutory maximum from the TAC. Upon appeal-HELD: Leave to appeal granted and appeal allowed. VCAT's order set aside and VOCAT's order varied by awarding P. the sum of $20,000 by way of assistance for loss of earnings.1. It is convenient to commence by considering the power of VOCAT to make an award under the Victims of Crime Assistance Act 1996 ('Act'). Section 50(1) of the Act contains three criteria that must be satisfied to enliven that power. An act of violence must have occurred. The applicant must be, relevantly here, a primary victim of that act of violence. And the applicant must be ‘eligible to receive the assistance’. This directs attention to the provisions of the Act that confer ‘eligibility’ for assistance.

2. While there is a presumption that a word used throughout a statute has a consistent meaning, it is only a presumption, which ‘will always yield to the requirements of the context in which [the word is] used’. In the Act, the word ‘amount’ denotes a sum or a figure. But there is no statutory definition or other significance attached to the term. Section 50, for example, does not speak in terms of VOCAT awarding an ‘amount’. Section 8(2) itself refers to the ‘amount awarded’ being ‘made up of amounts’. Section 8(3) contemplates that an ‘amount’ for other expenses may be included in ‘the amount’ awarded. The Act uses the word ‘amount’ simply to describe a sum or figure in a variety of contexts. Rather than giving the word an unvarying meaning, it is those contexts that must give meaning to the word in any given case.

3. There is therefore no requirement that ‘the amount (if any) to be awarded’ in s16 must be read as referring to the same ‘amount’ as that which may be awarded under s8. When one turns to the two provisions themselves, they reveal that the ‘amounts’ may differ. The ‘amount awarded’ under s8 refers, by the words of the provision, to the actual award of assistance. In contrast, s16 speaks of the ‘amount (if any) to be awarded’. The latter expression speaks to an anterior point at which the amount to be awarded is being ascertained but the actual award of assistance, for which s8 provides, is yet to be made. There is no reason why these two ‘amounts’ must be the same. The implication is rather to

the contrary, because s16 envisages that the ‘amount’ that is to be awarded is provisional because it is liable to be reduced under the section. The words ‘to be awarded’ emphasise the anterior operation of the provision.

4. Any deduction under s16 is to be made in the course of calculating the amount of assistance to be awarded to an applicant, and it is only after that has been done that the limits in s8 are applied to decide the amount of assistance ultimately to be awarded.

5. Accordingly, the order made in VCAT in respect of the claim for assistance for loss of earnings was set aside and in its place it was be ordered that the application to VCAT for review be allowed and the order made by VOCAT be varied by awarding P. $20,000 by way of assistance for loss of earnings.

23 Contract of sale of land to include s32 statementIn Pole v Jasenthuhewage MC23/2016 the vendor of a property did not include with the contract of sale a copy of the proposed plan of subdivision. The buyer sought to rescind the contract and sought repayment of the deposit monies. The Magistrate upheld the claim of the buyer. On appeal-HELD: Appeal dismissed. 1. The terms of s32(7) of the Act provide a reasonably high bar for a vendor, given that the burden is on the vendor to establish each of the separate elements outlined in order to deny the purchaser’s entitlement to rescind a contract of sale under section 32(5) of the Act.

2. The Magistrate found that the vendor P. had acted honestly, but that in failing to provide a copy of the proposed plan of subdivision with the section 32 statement, he had not acted reasonably.

3. It is clear that in order to establish an error of law on the part of the Magistrate, the vendor P. had to show that the Magistrate misdirected himself as to the correct law, applied the wrong test, or that his decision was illogical or irrational. It was simply insufficient to assert that, based upon the evidence, another decision maker might have reached a different conclusion.

4. The Magistrate noted that the vendor P. was an experienced builder/developer, who either did know or should have known that the proposed plan of subdivision needed to be included in the section 32 statement. He found that, in circumstances where the proposed plan of subdivision was capable of being located, it should have been provided, even if that meant delaying the sale of the property. It was apparent from the reasons that the Magistrate found that the proposed plan of subdivision should have been provided to enable the purchaser J. to make a fully informed decision, to enable meaningful negotiation, and to give her pertinent knowledge prior to determining whether to enter into a contract. Clearly, the Magistrate was cognisant of the objective of the requirements imposed by s32 of the Act, that is, to ensure that potential purchasers of land are provided with relevant information about the land, the Act being important consumer protection legislation. The consumer protection objectives of the Act are consistent with the mandatory requirements of s32 of the Act, the significant consequences of a failure to comply with the Act, and the relatively onerous task facing a vendor seeking to avoid those consequences.

5. The grounds of appeal and submissions did not expose any error of law on the part of the Magistrate. The appeal simply took issue with the factual findings of the Magistrate. Accordingly, the appeal failed.

24 Domestic Animals matter – dog owner required to produce dog when requestedIn Schmidt v Newsom and The County Court of Victoria MC24/2016, S. was the owner of a dog which bit another dog causing serious injury. When requested by Council officers to produce his dog, S. refused and was later charged and found guilty. Upon appeal-HELD: Application to review dismissed.1. It was argued by S. that the offence created by s76(1)(b)(ii) of the Act was ambulatory in nature. This meant that there were essential elements of that offence going beyond s76 itself, which were to be found in other provisions of the Act. Because Charge 6 did not contain all of the essential elements of the offence with which the informant sought to charge S., the charge itself was invalid, and the conviction based on that charge was bad.

2. S.'s arguments were rejected. Charge 6 clearly contained the elements of the offence specified in s76(1)(b)(ii) of the Act. Therefore, Charge 6 would only be invalid if there were essential elements or ingredients of the offence which were not found in s76 but were found elsewhere in the Act.

3. Section 76 is self-contained. Only one offence is created by s76(1)(b)(ii), being the failure to produce the animal as required by that section. The offence is not ambulatory in nature. No reference is made in s76 to requirements found elsewhere in the Act, one or more of which is necessary to complete the offence.

4. Charge 6 complied with s6 and Schedule 1 of the Criminal Procedure Act 2009, and made plain to S. precisely the offence with which he was charged. The charge contained the essential elements of the offence created by s76(1)(b)(ii) of the Act, and was valid.

5. The s81 ‘reasonable suspicion’ requirement was not incorporated as an essential element or a fact requiring proof into the offence created by s76(1)(b)(ii) of the Act. The power of an authorised officer to require production of an animal is provided by s74 of the Act. Section 81 deals with a different issue of seizure of an animal in certain circumstances.

6. In any event, the County Court judge correctly found that reasonable suspicion was established.

7. S.'s application to further amend the grounds in the Amended Originating Motion was declined. Having regard to the history of this proceeding, and the effect any amendment would have on the disposition of a proceeding, the application to amend was not granted.

25 Bail application – accused in ‘show cause’ positionIn DPP v Spiteri MC25/2016, S. was charged with aggravated burglary involving a firearm and was required to show cause in relation to his application for bail. The Magistrate granted bail but failed to include in the order a statement of reasons for making the order. Upon appeal-HELD: Application for leave to appeal dismissed.1. The Magistrate did not make mention of ‘show cause’ in the reasons for granting bail. On the other hand, there could be little doubt that the Magistrate was aware that S. was in a show cause position. She did not make any mention of ‘show cause’ in the order granting bail although she was obliged to do so.

2. The provisions of s4 of the Bail Act 1977 are not to be taken lightly and the Magistrate ought to have included in the order a statement of reasons for making the order. It might have sufficed if she had dealt with the matter in her brief oral reasons. The failure of the Magistrate to deal appropriately with the matter constituted error and those provisions of the Act ought to be dealt with punctiliously. The question was whether the failure to have observed the provision would in this case lead to a successful appeal.

3. The Magistrate understood that S. was in a show cause position and accepted that, for the reasons she stated, S. had shown cause. This was underlined by virtue of the fact that she did deal with the question of unacceptable risk.

4. The Magistrate was entitled to give weight to the question of delay and the question of family support. The family support was clear and if S. wanted to run his trial on the basis that he did not deliberately point the firearm at Senior Constable Fox, it would mean a very significant delay. The Magistrate was entitled to come to the conclusion that the risks which S. represented could be sufficiently ameliorated by the imposition of strict conditions. That was particularly so given the positive CISP report.

26 Insurance claim for lost Rolex watch dismissed by MagistrateIn Kalloghlian v Chubb Insurance Co of Australia Ltd MC26/2016, K. made a claim on his insurance company in respect of his watch which went missing when he was overseas. The Magistrate rejected the claim. Upon appeal-HELD: Appeal allowed. Magistrate's decision set aside and matter remitted to the Local Court to be heard by a different Magistrate.1. The principles relating to the obligation of a trial judge to give adequate reasons for making findings of fact, including findings said to be demeanour based, were summarised by McColl JA (with whom Ipp JA and Bryson AJA agreed) in Pollard v RRR Corporation Pty Ltd [2009] NSWCA 110. The following is a summary, with reference only to some of the leading authorities:

(i) The giving of adequate reasons lies at the heart of the judicial process, since a failure to provide sufficient reasons can lead to a real sense of grievance because the losing party cannot understand why he or she lost (at [57]): see Beale v Government Insurance Office of NSW (1997) 48 NSWLR 430, at 442; (1997) 25 MVR 373, per Meagher JA.

(ii) While lengthy and elaborate reasons are not required, at a minimum the trial judge’s reasons should be adequate for the exercise of a facility of appeal, where

that facility is available (at [56]): see Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247, at 260, per Kirby P; at 269, per Mahoney JA.

(iii) The extent and content of the reasons will depend on the particular case and the issues under consideration, but it is essential to expose the reasoning on a point critical to the contest between the parties (at [58]): see Soulemezis v Dudley, at 259, per Kirby P; at 280, per McHugh JA. This may require the judge to refer to evidence which is critical to the proper determination of the issue in dispute (at [62]): Beale v GIO, at 443, per Meagher JA.

(iv) Where credit issues are involved, it is necessary to explain why one witness is preferred to another. Consequently, bald findings on credit, where substantial factual issues have to be addressed, may not comply with the common law duty to give reasons (at [65]): Palmer v Clarke (1989) 19 NSWLR 158, at 170, per Kirby P (with whom Samuels JA agreed).

(v) Where an appellate court concludes that the trial judge has failed to give adequate reasons, the court has a discretion whether or not to direct a new trial. If, despite the inadequate reasons, only one conclusion is available, a new trial may not be necessary (at [67]).

2. This was a classic case where a claimant on an insurance policy had almost only his own word to prove ownership or possession and loss of the object for which the claim was made. An insurer might take the view in such circumstances that a plaintiff would need to commence proceedings so that his evidence could be given on oath and tested in a court. Paragraphs 17 to 19 of the judgment read as if the Magistrate was considering the matter from the point of view of an insurer in such circumstances, when his Honour had the additional benefit of evidence on oath and cross-examination and, as it happened, the evidence of another witness that provided some small support for the Plaintiff’s claim. The Magistrate appeared to have approached it from that point of view because there was no reference anywhere in the judgment to his assessment of the Plaintiff’s evidence nor his assessment of Mr Sanossian’s evidence. His Honour’s focus was only on documents and material that was not provided.

3. Ultimately, the Plaintiff K. had to be believed to succeed in this case. It was incumbent on the Magistrate to assess his evidence and explain why it was not accepted. Additionally, when Mr Sanossian’s evidence went a little way to corroborating the Plaintiff, it was incumbent on the Magistrate to say either why he did not accept that evidence or to say why, if it was accepted, it did not support the Plaintiff.

4. The judgment of the Magistrate did not provide reasons that were sufficient to enable the Appeal Court to gain a proper understanding of the basis of the verdict. The parties, particularly the Plaintiff K. did not know why the decision was made and the Plaintiff was entitled to have reasoning in sufficient detail to enable him to understand why he lost. It was not sufficient that the Plaintiff could infer that his evidence was not accepted. He was entitled to know why that was so.

5. Additionally, the Magistrate did not seem to have asked himself the correct question which was whether the Plaintiff brought himself within the insuring clause relevant to the loss. His focus on the purchase of the watch appeared to have overlooked entirely that it was sufficient that the insured either own or possess the watch. Nowhere in the judgment was the insuring clause nor the definition of “Contents” set out or referred to.

6. Accordingly, K. demonstrated that the Magistrate’s reasons were inadequate. It was not the case that, despite the inadequate reasons, only one conclusion was available on the evidence. The proceedings were remitted to the Local Court to be dealt with by a different magistrate since it was likely, that the Magistrate had impliedly made credit findings.

27 Bail application – terrorism offences – exceptional circumstances to be shownIn R v Naizmand MC27/2016, the defendant was charged with five terrorism offences and sought bail on the ground that exceptional circumstances existed. HELD: Application for bail dismissed.1. The expression “exceptional circumstances” is not defined in the legislation. Clearly enough, circumstances are not exceptional unless they are unusual or uncommon. Circumstances will be exceptional if they are atypical or abnormal. Exceptional circumstances could also therefore be described as extraordinary. In the nature of things, the reference to circumstances being exceptional is literally a reference to the regularity with which they

might be expected to occur, not necessarily a reference to the nature or quality of the circumstances in question. In other words, what are looked for are circumstances that are or that appear to be an exception to what normally or regularly occurs, whatever may be their particular or defining characteristics. Circumstances that occur regularly or frequently, even if wholly unacceptable, are hardly exceptional.

2. The following principles may be derived from the relevant caselaw:(1) Section 15AA of the Crimes Act 1914 has been said to enact a rebuttable presumption against bail being granted to a person charged with a terrorism offence(2) Section 15AA of the Crimes Act 1914 prevents the court from granting bail unless it is satisfied that exceptional circumstances exist to justify bail. While such a provision requires the applicant to satisfy the court, it does not prohibit bail in all cases. It has been observed that each application for bail, even under these provisions must be so dealt with in a way that does more than pay mere lip service to the anxious concern of the law that circumstances do alter cases and that it is rarely, if ever, that a simple, not to say a simplistic one size fits all approach, will be the best way of achieving a just individual result.(3) As the ‘presumption’ referred to in (1) above is rebutted only if exceptional circumstances exist to justify bail, the onus is upon an applicant to satisfy the Court affirmatively that such circumstances exist.(4) Section 15AA sets an extremely high hurdle. The requirement for exceptional circumstances imposes a high test.(5) The word ‘exceptional’ has received judicial attention in many cases. What must be shown is that there is some situation which is out of the ordinary in some respect which the detainee can point to as justifying the adjective ‘exceptional’.(6) The concept of exceptional circumstances is necessarily a flexible one. Such circumstances may be constituted by a combination of matters which taken together may render the case exceptional.(7) Exceptional circumstances is a threshold issue that requires a case-by-case examination and that there is no definitive definition that would apply to all cases.(8) In considering the issue of exceptional circumstances, not only can a combination of matters constitute such features but they can include features that are subjective to the particular applicant, features which bear upon the nature of the alleged offence and features which emphasise, absent the particular test, that the applicant is otherwise a person who will answer bail.

3. Taking all of the matters upon which N. relied into consideration together, they did not amount to exceptional circumstances sufficient to justify a grant of bail. Accordingly, N.'s application for bail was dismissed.

28 Sentencing – Community Correction OrderIn Nicholls v The Queen MC 28/2016, an accused appeared before the County Court in relation to contravention of a Community Correction Order and further charges. The accused was sentenced to a total of 13 months’ imprisonment. Upon appeal-HELD: Appeal allowed. N. sentenced to an aggregate term of six months' imprisonment wholly cumulative on the term imposed for contravention of the CCO making a total effective term of imprisonment of seven months.1. The sentence imposed on charge 2 was the maximum sentence for that offence. N. had pleaded guilty and was entitled to some discount for that factor alone. The offending could not properly be described as being in the worst category. In the circumstances, the sentence was manifestly excessive.

2. The sentences imposed on charges 4 and 8 did not reflect the different nature of the trespasses and the circumstances in which they were committed and the orders for cumulation were excessive and breached the principle of totality and that the total effective sentence was manifestly excessive.

3. The sentence imposed for contravention of the CCO was not excessive but was an appropriate sentence. Accordingly, the appeal was allowed. The orders made whereby the contravention of the CCO was found proven, whereby N. was convicted and sentenced to one month’s imprisonment for that contravention and whereby the CCO, made 16 June 2014, was cancelled, was confirmed.

4. As to the offences with respect to which the CCO was made, N. was resentenced to an aggregate term of six months’ imprisonment which was wholly cumulative on the term imposed for contravention of the CCO, making a total effective term of imprisonment of seven months.

29 Sentencing – extensive theft from partnership – CCO not appropriateIn Thorpe v The Queen 29/2016, the accused pleaded guilty to two charges of theft of $264,308.06 over a period of years. Upon appeal-HELD: Appeal dismissed.1. Insofar as the Judge's remarks in the course of debate might have been taken to indicate a view that the only punitive aspect of a CCO is community work, they betray a misunderstanding of the nature of a CCO. As the Court made clear in Boulton v The Queen [2014] VSCA 342; (2014) 46 VR 308, there are a number of punitive aspects attending a CCO beyond a condition that an offender undertake unpaid community work.

2. It was open to the judge to conclude that T.'s offending was too serious to justify being dealt with by a CCO. In his victim impact statement, T.'s business partner Mr Chapman described the effect of T.'s peculation as ‘immense and irreparable’. Prior to T.'s thefts, Mr Chapman and his family ‘were financially sound, happy and content’ but T.'s thieving destroyed their dreams and the financial security that they enjoyed. Victim impact statements by Mr Chapman’s wife, and other members of his family, made it clear that a number of people suffered significant adverse effects as a result of T.'s crimes.

3. Moreover, T. was in a position of considerable trust, which he abused. He stole not only from an employer, but from a friend. In the circumstances, he must have recognised the appalling consequences that could and did result from his thefts. His offending was protracted, and involved a large number of individual dishonest transactions, employing a variety of dishonest methods.

4. Accordingly, it was open to the judge to conclude that T.'s offences were too serious to warrant the imposition of a CCO.

30 Sentencing – single ‘course of conduct’ chargeIn Poursandis v The Queen MC 30/2016 the accused pleaded guilty to a single charge of obtaining a financial advantage by deception involving 541 acts of dishonesty valued at $4,929,800. The accused was sentenced to a term of seven years’ imprisonment with a minimum period of four years and six months. Upon appeal-HELD: Application for leave to appeal dismissed.1. The charge to which P. pleaded guilty was drafted upon a ‘course of conduct’ basis. This represents a new, and somewhat novel, basis upon which a sentence can be imposed. The ‘course of conduct’ provisions were introduced by ss11, 12, 13 and 17 of the Crimes Amendment (Sexual Offences and Other Matters) Act 2014. These provisions amended both the Criminal Procedure Act 2009 and the Sentencing Act 1991.

2. This new form of offending should be governed by orthodox sentencing principles. That means that close attention must be given to the maximum sentence available for the offence charged. The maximum remains a ‘yardstick’ by which the gravity of the offending is to be assessed, even though the offence itself is charged in ‘course of conduct’ terms.

3. Thus the fact that there may have been hundreds of individual acts of deception did not mean that the maximum sentence available for the charge of obtaining a financial advantage by deception, ten years’ imprisonment, could legitimately be imposed where there were present significant mitigating circumstances.

4. The question whether a ten year maximum afforded adequate scope for punishing conduct as grave as that perpetrated by P. was one that should have been considered with great care by the Crown when determining whether to negotiate a plea on the basis of a single charge of ‘course of conduct’ offending. One consequence of negotiating a plea on that basis was that the Crown lost the opportunity to have the offender sentenced as a ‘continuing criminal enterprise’ offender.

5. It could be said that the sentence of seven years’ imprisonment, for offending of this gravity, fell outside the range reasonably available to the sentencing judge. That was so, even granting that the maximum penalty for this offence was ten years’ imprisonment. The non-parole period of four years and six months was, if anything, moderate.

31 Accident compensation – Court to determine afresh worker’s claim for compensation in the form of weekly paymentsIn Jarvis v The Salvation Army Southern Territory MC 31/2016 a worker’s employment was terminated due to misconduct. The Magistrate was required after hearing evidence to make the decision whether the weekly payments should have been reinstated. Upon appeal-HELD: Appeal allowed. Proceeding remitted to the Magistrates' Court for rehearing and determination by another Magistrate.

1. Both sides conceded that the magistrate erred in law when he approached the task as if it was an application in the nature of a judicial review of Allianz’s decision not to reinstate weekly payments. Sections 39 and 43 of the Accident Compensation Act 1985 ('Act') required the magistrate to enquire into, hear and determine the question of J.'s entitlement to the reinstatement of his weekly payments. The magistrate was required, after hearing evidence in submissions, to remake the decision that had been made by Allianz.

2. Rather than attempt to artificially confine the expression ‘the worker’s misconduct’ in paragraph (d) of s114(2A) of the Act so as to hold that that expression did not encompass misconduct that is not sufficiently serious or significant for the purposes of the Act, as was contended for by TSA, the better view was that the relevance of the misconduct, and the weight to be attached to it, fell to be considered when the Authority (or a court) came to ‘determine’ whether or not to pay (or alter the amount of) compensation in the form of weekly payments as referred to in, and required by, paragraphs (f) and (g) of s114(2A) of the Act.

3. The task of the magistrate was to hear all of the relevant evidence called and tendered by the parties and, after receiving any relevant submissions, to determine afresh J.'s application for the reinstatement of his weekly payments. Consistently with ss39 and 43 of the Act, the magistrate was required to determine whether or not a relevant precondition was established and then whether or not compensation in the form of weekly payments should be paid to J. having regard to the object and purpose of the Act. This the magistrate did not do. The judge was, therefore correct to allow the appeal. However, the judge erred when he concluded that, once the magistrate found that a necessary precondition existed, the magistrate’s decision was fettered by the insurer’s (Allianz) original decision.

4. It followed that the application for leave to appeal was granted, the appeal allowed and consequential orders made remitting the proceeding for rehearing and determination in the Magistrates’ Court by another Magistrate.

32 Traffic offence – whether defendant to have full access to red light camera ManualIn Cai v The County Court of Victoria and Ors MC 32/2016, a County Court Judge allowed sections of the Manual to be provided to the defendant. Upon appeal-HELD: Originating motion dismissed.1. C. had to demonstrate not only that an error of law occurred, but that it was a vitiating error. The Supreme Court was not entitled to interfere with a decision unless it was satisfied that there was, in fact, a vitiating error of law.

Portland Properties Pty Ltd v Melbourne & Metropolitan Board of Works (1971) 38 LGRA 6, 18 and 22; [1971] VicSC 198, applied.

2. There was no error in the approach taken by the primary judge, who had the relevant documents before him, including the manual and the order and reasons of Ginnane J. Although repeatedly pressed by C., the fact that the primary judge did not have regard to the transcript of the hearing at which Ginnane J delivered judgment was irrelevant. This was because C. fundamentally misunderstood that, firstly, the court acts by making judgments and that it is the authenticated judgment that constitutes the decision amenable to judicial review in this proceeding. It is the formal order of the court, and not any snippet of transcript that constitutes the court’s judgment, especially transcript of proceedings after reasons for judgment are pronounced. The words used by his Honour when explaining his decision were spoken in an attempt to assist C. to understand the procedure that would follow now that judgment had been pronounced. The primary judge would have fallen into error had he preferred that statement to the authenticated order and the published reasons.

3. C. had not substantiated any alleged error of law on the part of the primary judge. The judge’s approach to his task was entirely proper. The judge was clearly satisfied upon examining the full manual that, apart from the few sections identified, there was no further material within it that met the legitimate forensic purpose identified by Ginnane J. The judge did all that he was required to do.

4. C. exhibited a firm belief in his entitlement to the entire manual irrespective of his lawful rights to the extent that he refused to listen to attempts to explain procedures and principles to him in order to assist him, whether that be by the primary judge or by the Supreme Court judge. There was no basis to consider that he was treated unfairly in all of the circumstances.

5. Accordingly, the originating motion was dismissed.33 Discovery of documents – client legal privilege

In Patrick Stevedores Operations (No 2) Pty Ltd v Port of Melbourne Corporation (No 2) MC

33/2016, an order for discovery of written advice was sought which was resisted on the grounds of relevance and client legal privilege. HELD: Application for discovery and inspection of the Advice given by Port's lawyers refused.1. The principles concerning waiver of privilege have been considered in a number of recent authorities. There was no dispute that privilege is a fundamental right or entitlement which should not lightly be found to have been waived. It is also not disputed that in determining whether there had been a waiver of privilege, the question was whether Port, as the privilege-holder had, by its conduct in pleading and relying on evidence of its state of mind, acted in a way that was inconsistent with the maintenance of the privilege in the Advice. That generally turned on the relevance of the Advice to that state of mind.

2. The application of the test of inconsistency requires an examination of the precise nature of the pleaded state of mind and of the impact of the particular communication upon it. There was no dispute that Patrick had the onus of showing that Port's state of mind was likely to have been formed due to the legal advice.

3. Pursuant to s133 of the Evidence Act 2008, the Court may order that the Advice be produced to it and may inspect it for the purpose of determining the question of waiver. Patrick submitted that there was no need to exercise this power as the inference was that the Advice was likely to have affected Port’s state of mind. Port submitted that the absence of merit to Patrick’s application rendered inspection of the Advice unnecessary, but invited the judge to take that step.

4. Patrick had not shown any real as opposed to fanciful likelihood that the Advice affected the relevant state of mind of Port. There was no dispute between the parties that it was Saleeba’s state of mind that was really in question. His evidence will be that he held the relevant belief consistently between 2007, when he began his position at Port, right through the relevant negotiations leading to the execution of the Renewal Deeds and through to the present time. There was no possible basis to infer any likelihood that the Advice had anything to do with the formation of his state of mind in 2007, or even the confirmation of that state of mind in 2011 when the Advice was given.

5. Port had, by its conduct in pleading and relying on evidence of its state of mind, not acted in a way that was inconsistent with the maintaining privilege in the Advice. This was not a case where Port was making assertions about its state of mind in circumstances where there were confidential communications likely to have affected that state of mind.

6. On inspection of the Advice, it did not concern whether by clause 4.6 Port only granted Patrick one option for a further term.

7. Accordingly, Patrick's application for discovery and inspection of the Advice given by the lawyers to Port was refused.

34 Planning and Environment – plaintiff convicted of depositing soil on his property illegallyIn Kitanovski v Melton City Council and Anor MC 34/2016. A property owner was charged with a number of offences under the Planning and Environment Act 1987 and found guilty. Upon appeal-HELD: Application for review dismissed.1. A reading of the whole of the transcript of the County Court hearing disclosed that procedural fairness was afforded to K. by the trial judge in the conduct of that hearing. In those circumstances, ground 1 of the application for review was rejected.

2. The charges made specific reference to the particular use made of the property without a permit, that is, ‘... the deposit of soil and other related materials ...’. K.'s complaint was that because there was no reference to that particular use to be found in either s126(2)(b) of the Act or in clause 35.04-1 of the Planning Scheme, a charge which included reference to that use was not a charge which described the offence ‘... in the words of the provision creating it, or in similar words,’ and was therefore invalid.

3. The charges contained the essential elements of the offence alleged, stated the legal nature of the offence in the terms of s126(2)(b) of the Act and clause 35.04-1 of the Planning Scheme and made plain to K. the offence with which he was charged. Accordingly, the charge complied with the common law requirements.

4. (a) As can be seen from sections 1 and 4, the design of the Act is to deal, without restriction, with the planning of the use of land in Victoria.

(b) That planning task is to be performed in the interests of all Victorians. In this way and other ways, the Act is expressed very much in terms of community values and the protection of community interests.

(c) It is clear from Part 6 that a planning scheme in force under the Act may regulate the use of any land. Again there is no particular restriction on this power.

(d) That such regulation might extend to the particular use in this case, being ‘deposit of soil and other related materials’ was effectively conceded by K. In other words, if that use appeared in the list of specific uses in section 2 of clause 35.04-1 then K., on his own argument, would have had no cause for complaint.

(e) The innominate use clause is a tool which it was necessary for the drafters of the Planning Scheme to use because of the likely impossibility of listing in clause 35.04-1 every use to which land in this zone could be put.

(f) In the scheme of the clause 35.04-1 table, use of the innominate clause does not cause any uncertainty or ambiguity. A use not otherwise listed in any of the sections of the clause 35.04-1 table is a use requiring a permit.

(g) The context in this case includes the nature of the right which is restricted, the degree of restriction, and the manner in which and the degree to which other similar rights have been restricted by the Act and the Planning Scheme. What is involved is infringement of K.'s right to use his property in one particular fashion in circumstances in which K. agrees that his rights to use the property are otherwise properly restricted by the provisions of the Act and the Planning Scheme. It is a significantly more modest restriction or infringement of rights than was contended by K.

35 Traffic offence – defendant intended to provide expert’s report – Magistrate adjourned hearingIn Emily Salisbury v Local Court of NSW MC 35/2016, the defendant’s counsel said that it was intended an expert to be brought to court. The magistrate refused to start the hearing, made directions about service of the expert’s report and adjourned the matter. Upon appeal-HELD: Application for leave to appeal granted and the Magistrate's order set aside and remitted to the Local Court of NSW for determination according to law.1. The Local Court of NSW is created by s7 of the Local Court Act 2007 (NSW) ('the LCA)'. It is constituted by a Magistrate pursuant to s8 of the LCA. It derives its powers from the LCA, being the statute which creates it. Whilst it has no inherent power, it does have an implied power to do such things as are necessary for the exercise of the power(s) otherwise conferred upon it.

Grassby v R [1989] HCA 45; (1989) 168 CLR 1; 87 ALR 618; (1989) 63 ALJR 630; (1989) 41 A Crim R 183, applied.

2. The criminal justice system is accusatory in nature. It obliges the Crown to make out a case before any response is forthcoming from the accused. The formal presentation of a charge is a critical step in the criminal justice process. The prosecuting authority must be taken to assert that, at that point, it is able to establish guilt beyond reasonable doubt. From that point the accusatory nature of our criminal process should be given full effect. Fundamental to such system is the principle that the Crown bears the onus of proving the guilt of an accused. That principle gives rise to an accused person having a number of rights.

3. Even accepting that a Local Court has an implied power of the kind of which Dawson J spoke in Grassby (supra), any such implied power does not extend to the power to make an order, the effect of which is to abrogate fundamental common law principles which govern the rights of an accused. The underlying principle of the accusatorial system is that it is for the prosecution to put its case both fully and fairly, before the accused is called upon to announce the course that he or she will follow. The order that ES serve an expert report in advance of the hearing traversed that principle. In making it the Magistrate acted beyond his power.

4. The terms of s28 of the LCA are general. The section contains nothing in the way of a clear legislative statement that the accusatorial system is to be abrogated, or some aspect of it curtailed. In these circumstances, the terms of s28 cannot be interpreted as conferring a power on a Magistrate to require an accused person to disclose his case, or to disclose whether evidence will be called and, if so, from whom it will be called and what that evidence is.

36 Costs order – below amount sought – whether award manifestly inadequate.In Bell v Velios MC 36/2016 a charge was withdrawn and the magistrate made an order for the defendant’s costs considerably less than the amount sought. Upon appeal-HELD: Leave to appeal refused and appeal dismissed.1. A successful accused is generally entitled to their costs. An accused person is successful if, amongst other things, the charges against him or her are dismissed for want of prosecution. An order will be made in the sum of the costs incurred by the accused if the

accused can satisfy the following three conditions. First, the costs must be properly incurred by the accused. The parties agreed at the hearing that to be properly incurred the expenses must have been reasonably required to ensure adequate presentation of the accused's case in order to obtain a just determination. Secondly, the expenses must be due and payable, or paid, by the accused to another person or as court fees. Thirdly, the amount of costs ordered, other than for court fees, shall be in accordance with the scale fixed from time to time by a costs determination.

2. A court cannot in its discretion award costs less than the full amount of properly incurred expenses that are proved. The decision whether expenses are properly incurred or whether costs sought under item 6 of table C of the 2012 Determination or the 2014 Determination for preparation where the trial does not proceed are reasonable in the circumstances is discretionary.

3. A magistrate may apply a broad brush approach to fixing costs and in doing so the magistrate must make sufficient inquiries and possess whatever information is required to ensure that the award of costs is logical, fair and reasonable.

4. The magistrate was required to decide what costs were properly incurred and the amount that was reasonable in the circumstances. When awarding costs, a magistrate's inquiry need not follow any particular path. What is required is that the magistrate make sufficient inquiries and possess whatever information is required to make a logical, fair and reasonable costs award.

5. Although the magistrate's reasoning was not fully disclosed, her Honour considered submissions as to the costs that B. was claiming, work done, time spent and the very simple nature of the charge before deciding what the appropriate award in this case would be. The magistrate made sufficient enquiries so that there was enough information before her to enable her to decide the appropriate costs award. It was open to counsel to make further submissions as to the work done and it was counsel's duty to do so.

6. The scale must accommodate charges of varying degrees of difficulty in matters that may themselves be of varying degrees of complexity. This matter related to a very simple charge and counsel for B. conceded there was nothing exceptional about getting up the matter for the expected trial and only two short appearances were necessary by counsel. In those circumstances even if the award of $1,500 was to be considered as low it was not so low as to manifest error. Nor did this represent an extreme case which warranted interference with the decision below.

7. Accordingly, leave to appeal was refused.

37 Self-represented litigant not permitted to use the Bar table – whether Judge in error.In Goldberg v Stocker and County Court MC 37/2016, a County Court judge refused to allow a self-represented litigant to use the Bar table. Upon appeal-HELD: Order to review dismissed.1. A self-represented litigant is not entitled to conduct his or her trial from the Bar Table. It is up to the presiding judge as to what is to be adopted in his or her court.

2. A judge has discretionary power to control the processes of the court. Part of that discretionary power is the inherent right of a judge or magistrate to regulate the proceedings in his/her court which is exercised in order to secure or promote convenience and expedition and efficiency in the administration of justice.

3. Traditionally, the Bar table is used by advocates appearing in the case before the court. Every now and then a judge, as part of the control of the court’s processes, may make orders as to where counsel are to be positioned at the Bar table (usually when counsel cannot agree upon the starting order). But there is nothing in terms of custom or precedent that precludes persons other than advocates from using the Bar table.

4. Accepting that there is no right of a self-represented litigant to have access to the Bar table and that permission must be given by the judicial officer, it is entirely appropriate – both in terms of perception and to facilitate the practical running of a case – that a self-represented litigant have access to the Bar table.

5. G., an experienced self-represented litigant, did not appear either deflected or

unsettled by his inability to sit at the Bar table. He used the Bar table from time to time upon which to place papers and he was able to put submissions and to respond to any issues raised by the judge. He was not shut out from raising points and the appeal was conducted fairly and consistently with the principles enunciated in Ucar v Nylex Industrial Products Pty Ltd [2007] VSCA 181; (2007) 17 VR 492 and Tomasevic v Travaglini & Anor [2007] VSC 337; (2007) 17 VR 100.

6. The judge behaved fairly and impartially and G. was given a fair hearing of his appeal, albeit that it was conducted from the body of the Court. To put it another way, notwithstanding G.'s position in Court, there was nothing in the conduct of the hearing that departed from the fundamental principle that the judge was independent and impartial – and appeared to be so.

7. Accordingly, whilst it was regrettable that G. was not allowed access to the Bar table, G. was not denied procedural fairness by the judge's refusal to permit him to conduct his appeal from the Bar Table.

38 Debt Recovery Agency – must be given sufficient detailsIn Defteros v Prushka Fast Debt Recovery Pty Ltd MC 38/2016, a Magistrate found that there had been a failure by a solicitor to give sufficient details for a debt recovery agency to recover debts.HELD: Appeal dismissed. 1. The Magistrate did not err in the construction of clause 5 of the agreement. There was no ambiguity in the term ‘insufficient detail’, even read with the antecedent words ‘misleading’ and ‘false’. The construction of Defteros Lawyers to the effect that there must have been some conscious withholding of the information to amount to insufficient information was not accepted. No element of consciousness or moral obloquy could be imported into the term ‘insufficient’: whether the amount and nature of the information that was provided was sufficient or insufficient involved an objective factual judgment.

2. The commercial purpose of both parties was to recover the debt. However, in the current case, the only party which held information regarding the existence of the debt, the quantum of the outstanding debt, and the debtor’s alleged liability to pay the debt was Defteros Lawyers. If it was unwilling or unable to provide sufficient information regarding the debt, Prushka could not perform its side of the bargain. As for the submission that the Magistrate ought to have determined liability on a debtor by debtor basis, this submission was not particularly relevant to the construction of clause 5, or any other ground of appeal. Accordingly, the Magistrate did not misconstrue clause 5 of the agreement.

3. There was clearly evidence before the Magistrate that despite repeated requests from Prushka, Defteros Lawyers simply ignored the requests for information and assistance. It could not be said that the Magistrate’s finding was irrational or perverse, or not open to her to make on the evidence. Accordingly, Ground 2 of the grounds of appeal was not made out.

39 Evidence – hearsay exception in a civil caseIn Ying Mui & Ors v Frank Kiang Ngan Hoh & Ors MC 39/2016, the question of first-hand hearsay evidence in a civil case was considered for its admissibility.HELD: The statements were admissible.1. Section 64(3) of the Act applies only to first-hand hearsay, that is, a previous representation made by a person who has personal knowledge of an asserted fact pursuant to s62(1) of the Act.

2. The operation of s64(3) is broad, and applies, consistently with the administration of practical justice in its application, whenever the maker of the representation has given evidence or is available to do so.

3. The principal purpose behind s64(3) of the Act is to maintain fairness in the trial process in relation to first-hand hearsay representations, whether the representations are contained in oral statements or in documents, but in either case when the maker of the representations has been or is to be called to give evidence. The discretion in s135 may operate to support the objective of fairness. Whether that purpose is or is not achieved at the trial, will depend on the inexhaustible variety of individual circumstances which present themselves for consideration in the course of the evidence.

4. The s64(3) exclusion should operate in this case to enable the conversations to be admitted on the ground of fairness.

40 Sentencing of offender in relation to sex offences as a registrable offenderIn Blyss v The Magistrates’ Court of Victoria & Ors MC 40/2016, the defendant had been found

guilty on five occasions relating to obscene exposure and ordered to comply with reporting obligations. HELD: Application for an extension of time dismissed.1. It is clear that ‘an offence’ in s11(1) of the Offenders Registration Act 2004 (‘Act’) includes offences other than Class 3 and Class 4 offences. Looking only at the ordinary meaning of the subsection, it seems that any offence qualifies, as long as it is not a Class 1 or Class 2 offence. However, when interpreting s11, the Court must also consider context. This means ‘an offence’ in s11(1) should be read in the broader context of the Act and its purposes.

2. It is sufficient to note that if re-offending in the same circumstances would fall within the Act’s purposes, then the initial offending qualifies as ‘an offence’ under s11(1) (as long as it is not a Class 1 or Class 2 offence). An offence would also qualify as ‘an offence’ under s11(1) if it harms the sexual safety of one or more persons or of the community, because a risk of committing that offence again in the future would be a risk to sexual safety.

3. Applying that construction of ‘an offence’ to the present case, the offence of wilful and obscene exposure, as committed by B. in 2011, was a qualifying offence. It had a ‘sexual flavour’. While in his car in a public place B. had pulled his pants down and masturbated. At least two passers-by saw him, and he looked directly at one of them. Such offending put children and other vulnerable people passing by the car at risk of seeing him. Reducing the likelihood of further offending in similar circumstances fell within the purposes of the Act, as did facilitating the investigation and prosecution of further offending by B. in similar circumstances.

4. The Magistrate was entitled to take into account any other material he considered appropriate. In the absence of transcript it was not possible to know what, if any, other matters were considered by the Magistrate. Based on the material that was before the Magistrate, and the absence of transcript, it was not possible on appeal to find that the Magistrate’s decision was not open to him. It was open to the Magistrate to be satisfied beyond reasonable doubt that B. posed the relevant risk, and he therefore had jurisdiction to make the order he did.

5. It was open for the Magistrate to be satisfied beyond reasonable doubt that there was a real risk that B. would re-offend by committing wilful and obscene exposure, and that B. therefore posed a risk to the sexual safety of one or more persons or of the community. The Magistrate’s finding was not unreasonable, irrational or illogical.

6. In circumstances where the order did not purport to set out the Magistrate’s reasons for decision, failing to refer to the purposes and scope of the Act in the order or failing to record that he reached the required satisfaction, did not establish that the Magistrate did not in fact consider those things. Accordingly, B. failed to establish that the Magistrate failed to take into account a relevant consideration.

41 Taxation offences – failure to lodge returnsIn Hudson v Commissioner of Taxation MC 41/2016, the defendant was found guilty of failing to lodge income tax returns over a nine-year period. Upon appeal-HELD: Appeal dismissed.1. The Magistrate correctly observed that the offences charged were ones of absolute liability with no fault element and the defence of mistake of fact was not available.

2. The unchallenged evidence before the Magistrate supported the conclusion that H. had been required by the Commissioner, pursuant to a taxation law, to furnish in the approved form the nominated taxation returns. Nothing in the evidence before the Magistrate served to rebut those facts averred in (i) to (v) of each of the charged offences such that the averments, thereby, retained their status as prima facie evidence of the factual matters asserted in accordance with section 8ZL of the Taxation Administration Act 1953 and the unchallenged affidavit evidence supported findings in terms of those facts averred in (i) to (v).

3. The Magistrate was correct to find the elements of each offence to have been established beyond reasonable doubt. H. was fully aware of the case he was required to answer and suffered no prejudice. The burden of H.'s defence was not as to the nature or elements of the charge he was facing but by way of technical objections to the validity of the Final notice, P1, and to the quality of the prosecution’s proofs.

4. It was open to the Magistrate, on the unchallenged evidence before her, to find that when Susan Nelson instituted the prosecution against the appellant on 18 March 2013, she

was appropriately authorised.

5. The Magistrate was correct in finding that the Final notice, P1, did create a requirement pursuant to a taxation law for H. to give an approved form to the Commissioner, in particular, to give income tax returns in the approved form for each of the financial years particularised in the Complaint and Summons. The second element of the offence, that H. did not lodge any of the returns as required by the Commissioner, was conceded. Accordingly, each of the seven charged offences were established beyond reasonable doubt and the Magistrate was correct in so finding.

6. The mere fact that the Final Notice recorded H.'s purported TFN by way of a reference for administrative purposes within the Taxation Office, and even if that TFN were to be unlawfully recorded or not even applicable to the person in question, said nothing about whether or not the Commissioner had imposed a valid requirement pursuant to a taxation law on H. to give an approved form to the Commissioner by a specified time (the first element of the offence).

7. R v Whittaker [2015] QCA 116, applied; Regina v Bates [2007] NSWCCA 297; 68 ATR 265, discussed; Cassaniti v DPP (Cth) [2008] NSWDC 2; Martin v Department of Transport, Energy and Infrastructure [2010] SASC 141; Fox v Percy [2003] HCA 22, (2003) 214 CLR 118; (2003) 197 ALR 201; (2003) 77 ALJR 989; (2003) 38 MVR 1; (2003) 24 Leg Rep 2; Theophilus v Police [2011] SASC 135, (2011) 110 SASR 420; Ambrose v Edmonds-Wilson (1988) 48 SASR 514; (1988) 92 FLR 429; (1988) 19 ATR 1217 and Whittaker v The Queen [2016] HCASL 21, considered.

42 Coroner – decision made not to hold an inquestIn Chol v Peter White Coroner MC 42/2016, a Coroner decided after receiving the Police Brief of Evidence and considering all relevant matters, not to hold an inquest into the death of a person. Upon appeal-HELD: Appeal dismissed.1. The Coroner was not obliged to hold an inquest. It was entirely within his discretion to hold or decline to hold an inquest pursuant to s52(1) of the Coroners Act 2008 (‘Act’).

2. In reaching a decision not to hold an inquest, the Coroner was required to take into account the purposes and objectives of s8 of the Act set out at [8]-[9].

3. The Coroner had sworn statements from nine witnesses as to what happened on the RKL floor. There were also sworn statements from witnesses who were on lower floors of the building and saw the deceased's body fall from level 12 to level 3. There were no inconsistencies of significance between the witnesses who spoke, in essence, with a common theme: a highly agitated young man who appeared ‘out of the blue’ and after an interaction with staff, endeavoured on a number of occasions to throw himself into a window and, tragically succeeded.

4. The investigations and the coronial brief were adequate and no further investigation was required. And, it was patently open to the Coroner on the material available to conclude that the death was not the result of a homicide.

5. It could not be concluded that the factual basis for the Coroner’s decision was so flawed that his discretion miscarried. 6. If the Coroner was, after perusing all the material, satisfied that an inquest would serve no useful purpose then that was his call. The Supreme Court will only interfere in an appeal under s87 if an error of law is demonstrated.

7. Accordingly, the end result was that the Coroner did not commit an error of law in exercising his discretion to refuse to allow an inquest.

8. The section 87A of the Act operates prospectively from 1 January 2015 in relation to any decision made by a Coroner from that day. Section 87A was therefore not applicable to this appeal.

43 Drink/driving – refusing breath test – caution given – effectIn Ball v Chargelegue and The County Court of Victoria MC 43/2016, a caution was given to a person said to have been driving his motor car when it was involved in a collision. When asked to submit to a breath test, the person refused and later was found guilty of the offence and fined and his driver licence cancelled. Upon appeal-HELD: Application dismissed.

1. The word ‘required’ when used in s49(1)(c) of the Road Safety Act 1986 ('Act') is used in its ordinary sense. Accordingly, whether the undisputed primary facts constituted a ‘requirement’ to undergo a preliminary breath test was a question of fact.

2. The question of law that then arose was whether the finding of the County Court that B. had been ‘required’ to undergo a preliminary breath test within the meaning of s49(1)(c) was open on the basis of the undisputed primary facts.

3. In determining whether the finding of the County Court that there was a valid requirement to undergo a preliminary breath test communicated by the police officers, it was common ground that the latter communications, if spoken without the preceding Caution, would have been sufficient to constitute a valid requirement under s49(1)(c) of the Act.

4. Accordingly, the question was: Whether the entirety of the relevant communications was so confused by the Caution that it was not open to the County Court to conclude that the requirement was clearly communicated?

5. Looking at the entirety of the relevant communications, it was open to the County Court to conclude that B. was given sufficient information to know what was required of him and why.

6. Accordingly, the conclusion of the County Court that the police had validly required B. to undergo a preliminary breath test was plainly open on the undisputed evidence.

44 Judges – professional relationship between judge and a legal practitioner – whether judge should have been disqualified for biasIn Bodycorp Repairers Pty Ltd v Maisno (No 10) MC 44/2016, an application was made that a judge recuse himself because he was at the Victorian Bar over years and knew a Queens Counsel on a professional basis.HELD: Application to disqualify rejected.1. Whether or not a judge should disqualify himself from hearing a case on the ground of bias, either actual or ostensible, requires an objective appraisal of the materials before the court. The fact that a party may have a subjective apprehension of bias is not of itself sufficient to warrant or require the disqualification of a judge.

2. The test to be applied is whether, objectively assessed, there is material before the court to support a conclusion of actual bias on the part of the judge (for which in this case the plaintiff did not contend) or a reasonable apprehension by parties or a member of the public that the judge might not bring an impartial and unprejudiced mind to the resolution of issues in the case.

3. Ordinarily interaction (social or otherwise) between a practising lawyer who becomes a judge and other members of the legal community in that city does not itself give rise to an apprehension of bias if one of those members is involved in proceedings before the judge.

Bienstein v Bienstein [2003] HCA 7; [2003] FLC 93-124; (2003) 195 ALR 225; (2003) 30 Fam LR 488; (2003) 24 Leg Rep 23, applied.

4. Although it is a duty of a judge to disqualify himself or herself for proper reason, that duty is met by an equal duty not to disqualify himself or herself save for a proper reason. Parties ought not to be encouraged to believe that by an application for the disqualification of a judge they can have their case heard by a judge thought to be more likely to decide a case in their favour.

5. Counsel for the plaintiff was unable to make any submission as to why the professional relationship identified in the judge's disclosure would have had the capacity to create, in the eyes of a reasonable observer, a reasonable apprehension that the judge might not bring an impartial and unprejudiced mind to the resolution of issues in the case. Neither was he able to cite any authority supporting the proposition that such a professional relationship simpliciter could constitute a basis for disqualification. The authorities make it plain that, without more, a simple professional relationship does not justify a judge disqualifying himself or herself from hearing an application.

45 VCAT – proceedings commenced before a Magistrate and dismissed as an abuse of processIn Weber v Deakin University and Ors MC 45/2016 Weber commenced proceedings in the Magistrates’ Court asserting that he had been discriminated against and was liable for damages. The Magistrate was satisfied that the proceeding was an abuse of process and permanently stayed the proceeding. Upon appeal-

HELD: Appeal dismissed.1. The nature of an appeal under r 77.06 of the Supreme Court (General Civil Procedure) Rules 2005, was considered by Zammit J in an earlier decision in this proceeding and Her Honour concluded that in order to succeed, W. had to identify error—legal, factual or discretionary—by the Associate Judge. W. did not identify any error by the Associate Judge, and accordingly the appeal was dismissed.

2. The Court is given a wide discretion as to costs by s24(1) of the Supreme Court Act 1986 and the Civil Procedure Act 2010. The discretion is not unfettered and must be exercised judicially. This will generally result in the usual position that ‘costs follow the event’; that is, a successful party will normally be entitled to their costs of the proceeding from the unsuccessful party. Accordingly, absent any persuasive reason to depart from the usual position, DU were entitled to the costs order that was made. The fact that W. was unrepresented did not of itself grant him immunity from an adverse costs order. It was merely a factor to be weighed in the exercise of the Court’s general discretion.

3. W. provided no reason why the usual rule should not apply before the Associate Judge and failed to identify an error in the exercise of his Honour’s discretion.

4. W.'s WorkCover claim was not examined by the Magistrate. The only reference to the WorkCover proceedings made by the Magistrate was as to the basic details of the claims, a comment that ‘[t]hose proceedings have yet to be heard and determined.’ In coming to his conclusion to refuse to reinstate the proceeding, the Magistrate specifically observed ‘[t]hat is not to imply absence of merit in the next allegation W. raises.’ Accordingly, the ground of appeal was not made out.

5. It was relevant and necessary for the Magistrate to consider the proceedings in VCAT for the purposes of identifying whether the proceedings in the Magistrates’ Court sought to litigate afresh the case that had already been determined in the VCAT. Consideration of the VCAT decision was necessary in order to address the respondents’ arguments and was essential to the task before the Magistrate. The ground of appeal was not made out.

6. The Magistrate did not err by failing to consider the High Court ruling in R v Gray; ex parte March [1985] HCA 67; (1985) 157 CLR 351 as it was not relevant to the Magistrate's decision.

7. As W. did not establish that the Magistrate erred as alleged in his various grounds, the appeal was dismissed.

46 Bail – granted by Magistrate – appeal lodgedIn DPP (Vic) v Hassan MC 46/2016 a Magistrate granted bail with a number of special condition to the defendant. Upon appealHELD: Appeal dismissed.1. Mr Grant, who appeared for the Director, made it clear that the only complaint was that, in his submission, the Magistrate was manifestly wrong in failing to be satisfied that there was an unacceptable risk that H. would not answer his bail. He submitted that the magistrate ought to have been satisfied that there was an unacceptable risk of flight and therefore should not have granted bail.

2. Having regard to the principles set out in Beljajev v DPP (Vic) & DPP (Cth) [1991] VicSC 376, and for the reasons given by the Judge in this review, it was open to the Magistrate, on the material before her and in light of the conditions and surety she proposed, to conclude that she was not satisfied that, if granted bail, there was an unacceptable risk that H. would flee to Lebanon and fail to answer his bail or that he would commit further offences.

3. Accordingly, the appeal was dismissed. 47 Search warrants – power of Magistrate to order return of seized items

In Siddique v Martin and Magistrates’ Court of Victoria MC 47/2016 the question of things seized and brought before a Magistrate was considered on appeal by the Court of Appeal.HELD: Appeal allowed. Order that the Magistrate's decision be quashed and that the Magistrates' Court re-hear and re-determine S.'s application for the return of his property. Siddique v Martin [2015] VSC 423, MC 34/2015, overruled.1. There is no reason to read s78(6) of the Act strictly or narrowly. Quite the opposite. While a strict construction may be mandated with respect to the authorisation of State interference with private property, a broad construction is to be preferred with respect to a statutory provision that alleviates that interference. Nor does there seem to be any reason why Parliament would have intended to distinguish between seized items that had been

named and described in the relevant warrant and other items seized in the course of executing the self-same warrant. The police officers responsible for the search and seizure saw no reason to draw any such distinction.

2. There is nothing unnatural or inappropriate in saying that goods seized in circumstances like the present are seized ‘under a search warrant’. The Crown’s argument that the items in question were seized under purely common law powers and that, therefore, they cannot be said to have been seized ‘under a search warrant’ was not accepted. Throughout this litigation, the Crown maintained that all of the items seized were lawfully seized. If that be so — at least, if the items were seized in accordance with the law — then none of the items was seized under purely common law powers and all of them were seized ‘under’ a search warrant within the meaning and for the purposes of s78(6) of the Magistrates’ Court Act.

3. It does not matter whether, for all purposes, the ‘extended’ power derives from or is dependent upon the statutory warrant. What matters is whether a relevant seizure is appropriately regarded as a seizure ‘under a search warrant’ within the meaning of s78(6) of the Act. The Crown’s submission that a clear distinction between items named in the warrant and other items seized but not named in the warrant is both possible and appropriate for the purposes of s78(6) was rejected.

4. It can be said that the extended power is ‘incidental’ to the principal power conferred by the warrant. There is no question about the existence of the extended power. It plainly exists. The question is whether it can be said that goods seized in the exercise of that power are goods seized ‘under a search warrant’. That question was answered in the affirmative.

5. In consequence, the Crown would accept that goods in this category would properly be described as goods seized ‘under a search warrant’ within the meaning and for the purposes of s78(6) of the Act. If that be correct, it would seem to be quite extraordinary to treat differently goods not named or described in the warrant but lawfully seized in the course of executing the warrant in accordance with the ‘common law extension of search on a search warrant’. Those goods ought also to be properly described as goods ‘seized under a search warrant’ within the meaning and for the purposes of s78(6).