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.