CASE SUMMARIES 20141 Preliminary brief for speeding charges – Must be properly prepared

In McWhirter v Dunlop; Tran v Harris MC 01/2014, Dixon J determined two appeals against magistrates’ findings that charges of driving at an excessive speed were proved. The alleged offences were proved by production of a Preliminary brief which did not fully comply with the provisions of the Road Safety Act 1986 and the Regulations made thereunder. Upon appeal—

HELD: McW's appeal allowed and an order made reducing the length of the driver licence order to six months. Tran's appeal dismissed.1. When proceeding ex parte on a preliminary brief, there is nothing in the statute that relieves the prosecution of the obligation to demonstrate the existence of every necessary element of the offence. The task of determining whether the matters disclosed in the preliminary brief disclose the offence charged will be discharged when the magistrate is satisfied, that the matters set out in the preliminary brief demonstrate that evidence is available to prove, beyond reasonable doubt, every necessary element of the offence.

Hannan v Norman [2006] VSC 228 [21]; (2006) 45 MVR 520; MC 16/2006; andChallis v Williams [2013] VSC 490; MC 36/2013, applied.

2. In McW's case, the brief was of a poor standard in that it did not prove the speed limit that applied to the driver and whether his speed exceeded the applicable speed limit by more than 45km/h. Having regard to the whole of the informant's statement, it was open to the court to be satisfied that the matters set out in the preliminary brief disclosed the offence of disobeying the speed limit. However, the basic want of attention to detail by the informant in preparing the preliminary brief meant that the necessary facts that determined the appropriate penalty had not been established. Neither the applicable speed limit nor the extent to which it had been exceeded had been proved. All that the informant’s statement could establish was speeding to some degree.

3. Accordingly, it was not open to the Magistrate in McW's case to be satisfied beyond reasonable doubt that McW had exceeded the speed limit by 45km/h or more. The Magistrate could only be satisfied that McW exceeded the speed limit by less than 35km/h. It was appropriate in all of the circumstances to suspend McW's driver licence for a period of 6 months.

4. In Tran's case, there was a number of observations deposed to by the informant in his statement that, when taken together with the laser reading, provided an adequate basis for the Magistrate to be satisfied beyond reasonable doubt that the speed of Tran's vehicle exceeded 125km/h.

5. In the circumstances, the Magistrate was entitled to consider that the matters contained in the preliminary brief disclosed the offence charged and was entitled to accept in evidence the informant’s statement in the preliminary brief as the basis for determining the charge. Further, the Magistrate was entitled to accept that Tran had disobeyed the speed limit and that, for the purposes of penalty, he was driving a vehicle that was not a heavy vehicle which exceeded the speed limit by more than 45km/h. Accordingly, Tran’s appeal was dismissed.

6. Obiter: By way of a parting observation, in each case insufficient attention was paid by the informant to the requirements of a proper statement for a preliminary brief. If it be the case that the speed detection device was used in the manner prescribed by the regulations it was hardly an onerous requirement in the preparation of the statement to say so. The same might be said about the informant in McW's statement. If he made the observations attributed to ‘police’ he should have said so.

2 Sentencing – whether non-parole period can be fixed where two sentences of six months’ imprisonment were ordered to be served cumulativelyIn Harding v County Court of Victoria & DPP MC 02/2014, a Judge of the County Court on appeal from a Magistrates’ Court matter imposed two sentences of six months’ imprisonment to be served cumulatively but made no order in relation to a non-parole period. HELD: Order of County Court Judge quashed and set aside and matter remitted to the County Court to be determined by a differently constituted County Court.1. Having regard to the provisions of s11 of the Sentencing Act 1991 ('Act'), a court must fix a non-parole period for an offender sentenced to a term of two years or more (unless the court considers fixing any such period to be inappropriate because of the nature of the offence or past history of the offender), and may fix a non-parole period for an offender imprisoned for a term less than two years but not less than one year. And any non-parole period so fixed must be at least six months less than the term of the sentence.

2. In s11 of the Act, the singular expressions 'an offence' and 'a term' should be read as including the plural of each and it deals directly with a situation where the court sentences an offender to be imprisoned in respect of more than one offence.

3. Upon sentencing H. to serve two terms of 6 months' imprisonment cumulative upon one another, the judge had a discretion to fix a non-parole period of at least six months less than the aggregate 12 month term.

Observation of Stephen J in R v Ryan [1982] HCA 30; [1982] 149 CLR 1; 40 ALR 651; 56 ALJR 422, not adopted.

4. With real hesitation – perhaps even generously – that for reasons less to do with the judge and more to do with the particular combination of circumstances on the day, H. did not have a practical opportunity to be heard on the question of the fixing of a non-parole period, and was thus denied procedural fairness.

5. It would have been reasonable for H.'s counsel to expect to be warned should any need to address the court on a non-parole period arise. The making of that reasonable assumption by his counsel, the failure of the judge to warn counsel of the potential need to address the issue of a non-parole period, and the consequent deprivation of an opportunity for H. (through counsel) to make submissions on that issue, resulted in a want of procedural fairness.

3 Equity – Deed of Settlement entered into by parties – Two clauses found to be penalties were voided In Legal Practice Management (Vic) Pty Ltd (in liq) v Simms Corp Hotels & Leisure Pty Ltd & Ors MC 03/2014 a Deed of Settlement was entered into by parties to a civil proceeding whereby agreement was made for a lesser amount to be paid by instalments. When conditions of the deed were not complied with, the plaintiff sought reimbursement for the whole amount due. The Magistrate dismissed the claim. Upon appeal-HELD: Appeal dismissed.1. Whether the clauses in the Deed of Settlement were void as being a penalty, it was necessary to construe the terms and inherent circumstances judged at the time of making the deed. When the Deed was entered into, none of the Simms parties could have been said to be liable for the whole of the stipulated sum of $132,394.12.

Lord Dunedin in Dunlop Pneumatic Tyre Co Ltd v New Garage and Motor Co Ltd [1914] UKHL 1; [1915] AC 79, 86-87; 1914-15] All ER 739, followed.

2. When read fairly, the Deed of Settlement did not contain an implied acknowledgment of present indebtedness on the part of each of the Simms entities for the stipulated sum of $132,394.12 as at the date of entry into the Deed of Settlement. This was not a case where it could be said each of the Simms entities had implicitly acknowledged an existing indebtedness of a larger sum that was quantified, and already due and owing.

Cameron v UBS AG [2000] VSCA 222; (2000) 2 VR 108; and Calcorp (Australia) Pty Ltd v 271 Collins Pty Ltd [2010] VSCA 259; (2010) 29 VR 462,

distinguished.Zenith Engineering Pty Ltd v Queensland Crane and Machinery Pty Ltd [2000] QCA

221; [2001] 2 Qd R 114, followed.

3. Under clause 1 of the Deed of Settlement, when read with clause 7, the Simms entities, jointly and severally, agreed to pay, and the legal practice LPM agreed to accept, the Settlement Amount of $80,000, payable by way of instalments.

4. The Magistrate correctly found that there was no express or implied acknowledgement of the indebtedness for the stipulated sum claimed. 5. In circumstances where the relevant breach under clause 9 of the Deed was the appointment of external administrators to one of the Simms parties, the increase in liability from $80,000 to effectively the sum of $137,430.68, or indeed the sum of $132,394.12, constituted a penalty, and the Magistrate was correct to dismiss the appellant’s claim.

4 Application for bail – claim by accused that he was unable to adequately prepare his defence in custody In Re Application for Bail by Jan Visser (aka John Visser) MC 04/2014, Dixon J dealt with an application for bail in respect of a serious charge. The accused stated that he was unable to adequately prepare his defence whilst detained in custody.HELD: Bail refused.1. The summary rejection by V. of the opportunity to interview prisoners was

unreasonable.

2. Accordingly, the contention advanced by V. that he was unable to prepare his defence whilst he was in custody was not established on the facts.

Shahala v R [2012] NSWSC 351, distinguished.

3. V. had a prior conviction for escaping from custody. He also had other relevant prior convictions concerning an earlier attempt to escape from lawful custody in 1988 and failing to appear in accordance with a bail undertaking in 2007. V. had an extensive criminal history in relation to substantive criminal offences that need not be detailed. It was consistent with the description of career criminal.

4. Assuming that V.s capacity to prepare his defence was compromised in some way, the Court was nonetheless satisfied that there was an unacceptable risk that if V. was released on bail, he would fail to surrender himself into custody in answer to his bail or would commit an offence whilst on bail.

5. That conclusion required that alternative methods to facilitate communication between V. and the potential defence witnesses be explored rather than V. being granted bail.

5 Application for bail – delay of more than two years – accused at risk of re-offendingIn Re Application for Bail by Tyler Foxwell MC 05/2014, Dixon J heard an application for bail in relation to a number of serious drug offences. The question of delay and personal factors of the accused were considered in the application.HELD: Bail refused.1. In relation to the substantial delay likely before the charges came on for trial, this was a significant factor in favour of bail. Delay which has not been established as inordinate, may, in conjunction with other factors, amount to exceptional circumstances.

Cox v R [2003] VSC 245 at [15] – [20], (Redlich J), applied.

2. In additional to the delay, F. was a young man with no prior convictions who enjoyed the support of his family including an offer of employment.

3. Whilst F. could demonstrate exceptional circumstances, that of itself did not create an entitlement to bail. Bail must be refused if there was an unacceptable risk that F. if released on bail would do certain things such as committing further offences, endangering the safety or welfare of members of the public or failing to surrender himself into custody to answer to bail.

DPP (Cth) v Barbaro [2009] VSCA 26; (2009) 20 VR 717; (2009) 193 A Crim R 369, applied.

4. The Crown alleged that F. owed a large drug debt in the vicinity of $108,000 and had drug debts owed to him of $60,000. If F. was released on bail, the Crown suggested that there was a significant risk that activity in relation to the collection or payment of these debts could lead to F. re-offending.

5. F. had been assessed in relation to his drug habit, but had not received nor was about to start carefully supervised treatment for his substance abuse problem.

6. As the matters presently stood, the continued detention of F. in custody was warranted.

6 Bail considerations – human rightsIn Woods & Ors v DPP MC 06/2014, Bell J detailed aspects of granting or refusing bail having regard to common law rights and liberties. 1. Everyone charged with a criminal offence is presumed to be innocent and the prosecution must prove the guilt of the accused beyond reasonable doubt. Consistently with that presumption and prosecutorial onus of proof, the purpose of bail is to ensure the liberty and other human rights of persons arrested on criminal charges. In Victoria, those rights are to be found in the common law and the Charter of Human Rights and Responsibilities Act 2006 (Vic).

2. The provisions of the Bail Act ('Act') governing entitlement to bail and the conditions of bail are compatible with human rights if they meet the standard of justification prescribed by s7(2) of the Charter. It is clear that the intention of the legislature is that the provisions are to be applied, and decision about bail are to be made, with this in mind.

3. It is established that the bail authority must carefully consider the facts and

circumstances of the individual case and determine whether the continued detention of the accused is justified. Reliance by the prosecution on ‘general and abstract’ considerations and a ‘stereotyped formula’, without more, will be insufficient. Particular allegations, such that the accused would disturb public order, must be based on facts reasonably capable of showing that kind of threat. Moreover, generalised concerns that an accused might abscond are not regarded as sufficient justification for refusing bail.

4. Reference to a person’s record of prior offending is not sufficient, without more, to justify a conclusion that he or she might re-offend. The apprehension of danger associated with re-offending must be ‘plausible’ and refusal of bail must be ‘appropriate, in the light of the circumstances of the case and in particular the past history and the personality of the person concerned. Lack of a fixed residence (eg homelessness) or of work or family ties are relevant but not determinative.

5. As can be seen from the decisions of the European Court of Human Rights and that of Refshauge J in Seears, a fundamental requirement of human rights law in the context of bail is that the individual facts and circumstances must be properly considered before the severe step of depriving the accused of his or her liberty is taken.

Seears [2013] ACTSC 187, followed.

6. Under the Bail Act, the court is required to take into account a number of matters which always include whether the accused represents an unacceptable risk of failing to answer bail, committing offences on bail, endangering the safety or welfare of the public or interfering with witnesses (s4(2)(d)). Without in any way doubting the importance of the other considerations, the primary purpose of bail is to ensure the attendance of the accused at his or her trial and the associated preliminary hearings.

7. In relation to exceptional circumstances, there must be something unusual or out of the ordinary in the circumstances relied upon by the applicant before they can be characterised as exceptional.

8. Where an applicant has to discharge the onus of showing cause why his or her detention was not justified, the applicant also has to answer a submission that the applicant represented an unacceptable risk. If the prosecution discharged that onus, bail had to be refused even where the applicant had shown cause why detention was not justified.

DPP v Harika [2001] VSC 237; andPaterson [2006] VSC 268; (2006) 163 A Crim R 122, followed.Re Asmar [2005] VSC 487, not followed.

9. In relation to conditions of bail, s5(2) of the Act is one of several provisions which have been designed to ensure that the conditions of bail (if any) impose no greater limitation upon the liberty and human rights of the accused than the circumstances of the case require. Complying with the obligation to consider the conditions of release in the specified order makes the court turn its mind to the release of the accused on the least restrictive basis which is appropriate, without preventing it from granting bail on more restrictive conditions when required by the facts and circumstances of the case.

10. In relation to the provision of a surety, the purpose of these provisions in the Act is to ensure that the power to impose a condition requiring a deposit of money or a surety is exercised in a manner which has regard to the individual means and circumstances of the accused. The intention is that the imposition of such conditions is not to be an impediment to obtaining bail when other conditions with which the accused could comply would achieve the same purpose. These provisions give effect to a general principle that excessive bail shall not be required.

11. In summary, the court now has explicit powers to impose particular conditions of bail when this is required for the purposes of bail and the ancillary purpose of protecting the community. But the authority to impose such conditions is regulated by provisions which are designed to ensure that conditions which violate the human rights of the accused are not imposed.

7 Sentencing – prosecution should not be permitted to make a statement of bounds to a sentencing judgeIn Barbara & Zirilli v The Queen MC 07/2014, the High Court dealt with the question whether a judge who refused to receive a sentencing submission from the prosecution was procedurally unfair. HELD: The Court: Each application for special leave granted, each appeal treated as instituted

and heard instanter but dismissed.1. (French CJ, Hayne, Kiefel and Bell JJ, Gageler J dissenting). The prosecution's statement of what are the bounds of the available range of sentences is a statement of opinion. Its expression advances no proposition of law or fact which a sentencing judge may properly take into account in finding the relevant facts, deciding the applicable principles of law or applying those principles to the facts to yield the sentence to be imposed. That being so, the prosecution is not required, and should not be permitted, to make such a statement of bounds to a sentencing judge.

R v MacNeil-Brown [2008] VSCA 190; (2008) 20 VR 677; (2008) 188 A Crim R 403, overruled.

2. The sentencing judge's refusal to receive submissions about range did not deny the applicants procedural fairness. It caused no other unfairness to the applicants. Each applicant had a complete opportunity to make his plea in mitigation of sentence and, in the course of doing so, make any relevant submission about what facts should be found for the purposes of sentencing and what principles should be applied in determining the sentences imposed. There was no unfairness in the sentencing judge not asking the prosecution to state an opinion about what range of sentences could be imposed. There was no unfairness in the sentencing judge not asking about what had been said or done in the course of discussions between the prosecution and lawyers for the applicants before the applicants indicated their willingness to plead guilty to certain charges. Neither the outcome of those discussions nor any hope or expectation which the applicants may have entertained as a result was relevant to the task of the sentencing judge.

3. To describe the discussions between the prosecution and lawyers for the applicants as leading to plea agreements (or "settlement" of the matters) cannot obscure three fundamental propositions. First, it is for the prosecution, alone, to decide what charges are to be preferred against an accused person. Second, it is for the accused person, alone, to decide whether to plead guilty to the charges preferred. That decision cannot be made with any foreknowledge of what sentence will be imposed. Neither the prosecution nor the offender's advisers can do anything more than proffer an opinion as to what might reasonably be expected to happen. Third, and of most immediate importance in these applications, it is for the sentencing judge, alone, to decide what sentence will be imposed.

8 Magistrate’s refusal to allow a party to appear by unqualified representativeIn Waddington v Dandenong Magistrates’ Court & Kha MC 08/2014, The Victorian Court of Appeal upheld a Supreme Court judge’s decision that a magistrate who refused to allow a party to appear by an unqualified representative was not in error.HELD: Appeal dismissed.1. Although s100(6) of the Act is permissive in that it affords a party a right to be represented by a layperson in specified circumstances, it is also proscriptive inasmuch as it limits the range of laypersons on whom it confers that right of audience ─ to laypersons empowered by law to appear for a party.

2. A layperson appointed under power of attorney is not thereby empowered by law to appear for the party. In effect, s2.2.2. of the Legal Profession Act and s100(6) of the Magistrates’ Court Act combine to produce the same result as was previously achieved by the combined operation of s111 of the Legal Profession Act 1958 and s100(6) of the Magistrates’ Court Act (except that under s111 of the Legal Profession Act, the right conferred was to appear as a solicitor or otherwise in the circumstances provided for in s100(6)). As authority shows, that did not confer a right on a layperson to appear on behalf of a party in any other circumstances.

Hubbard v Association of Scientologists International [1972] VicRp 37; [1972] VR 340; and

Cornall v Nagle [1995] VicRp 50; [1995] 2 VR 188, considered; O’Toole v Scott [1965] AC 939; [1965] 2 All ER 240; (1965) 2 WLR 1160, referred to.

3. So far from supporting the appellant W., an informed understanding of the provenance of s100(6) of the Act showed more clearly than would otherwise be the case that s100(6) did not authorise a layperson to appear on behalf a party except in the particular circumstances which it identified.

4. Even if such an appearance did not rise to the level of engaging in legal practice, that would not have availed the appellant W. in this case. It remained that a lay advocate had no right of audience other than was conferred by statute or in the exercise of the court’s discretion. Accordingly, whether or not an appearance by an occasional lay advocate amounted to carrying on practice, that kind of lay advocate’s entitlement to appear remained

at the court’s discretion. 5. There was nothing about the Magistrate's order for costs which was indicative of bias and, although it is always a question of fact and degree whether a judicial display of bad temper or intolerance crosses the line into the area of what is unacceptable, the law assumes that the fictitious bystander (by reference to whose perceptions these things are meant to be judged) is endowed with a modicum of maturity and discernment.

Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337; (2000) 176 ALR 644; 63 ALD 577; 75 ALJR 277; (2000) 21 Leg Rep 13, applied;

Johnson v Johnson [2000] HCA 48; (2000) 201 CLR 488; (2000) 174 ALR 655; [2000] FLC 93-041; (2000) 74 ALJR 1380; (2000) 26 Fam LR 627; (2000) 21 Leg Rep 21, referred to.

6. Recognising as the judge did that the Magistrate had a discretion to allow the appellant W. to appear by his lay agent, and accepting that the exercise of the discretion was informed by and required to conform to the appellant’s common law right to a fair trial, it was not and had not been shown that the Magistrate’s refusal to allow the appellant to appear by his lay agent denied him a right to a fair trial or otherwise that the exercise of discretion miscarried.

9 Witness directed to give evidence by Audio Visual link in a committal proceedingIn Kotzmann v The Magistrates’ Court of Victoria and Anor MC 09/2014, a Magistrate gave a direction that a witness in a committal hearing give evidence by audio visual link. Upon an originating motion seeking judicial review of the Magistrate’s direction:HELD: Motion denied.1. The Magistrate's decisions were not subject to an order in the nature of certiorari. Further, K. had not demonstrated that the Magistrate made either a jurisdictional error or an error of law on the face of the record. Accordingly, the proceeding had no real prospects of success and should be disposed of summarily. Even if judicial review remedies had been available in respect of the Magistrate's decisions, as a matter of discretion, no relief should be granted to K. because he had availed himself of the statutory right to apply to revoke the Audio Visual Link Order.

Potter v Tural [2000] VSCA 227; (2000) 2 VR 612; (2000) 121 A Crim R 318;Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321; (1990)

94 ALR 11; (1990) 64 ALJR 462; 21 ALD 1; andCraig v South Australia [1995] HCA 58; (1995) 184 CLR 163; (1995) 131 ALR 595;

(1995) 69 ALJR 873; 39 ALD 193; 82 A Crim R 359, applied.

2. The magistrate should have enquired of K. whether he had been provided with a copy of the provisions of the Evidence (Miscellaneous Provisions) Act 1958 Act upon which the informant relied in making her application and, if a copy of those provisions had not been provided, the magistrate should have arranged for a copy to be provided. This is because those provisions established the legal framework for the informant’s application. If it had not been possible to provide K. with a copy of the relevant provisions, the magistrate should have taken steps to read them to him.

10 Further application for bail – whether new facts or circumstancesIn Re Application for Bail by Tyler Foxwell (No 2) MC 10/2014, the accused made a fourth application for bail and was required to satisfy the court that new facts or circumstances had arisen since the last refusal of bail. HELD: As new facts and circumstances had arisen since the last refusal of bail, bail was fixed with strict conditions.1. The primary point raised on this application was not raised on the earlier application. The Judge did not evaluate the nature of the risk that F. might re-offend if admitted to bail by reference to a proposal that he be immediately assessed for a drug rehabilitation program. The fact that such an opportunity was now available was a new fact.

2. The inability of the informant to serve the police brief of evidence in time for the April 2014 committal mention was a new circumstance that permitted the Judge to more readily infer that F. faced a period of remand of more than two years from his arrest. However, the prospect of greater delay did not affect the Judge's assessment of whether there was an unacceptable risk that F. may commit further offences if admitted to bail.

3. If released on bail, F. would be required to undergo regular urine drug screens, initially three times a week and to see Mr Lamberti on a weekly basis for assessment, counselling, education and relapse prevention treatment. Mr Lamberti considered the following matters to be significant indicators that a treatment program could be beneficial for F. F. has employment immediately available through his father’s building company. He has strong family ties and a safe environment to live in. He will live at home with his father. He

appears motivated to undertake employment and drug treatment, an assessment that was made by Mr Lamberti after allowing for the applicant’s motivation to secure his liberty.

4. Bail fixed with strict conditions.11 Towing services – operating within a certain area without authorisation

In Western Truck Towing v Douglas & Anor MC 11/2014, a tow truck operator failed to comply with a condition in relation to a controlled area without authorisation and was fined. Upon appeal-HELD: Appeal dismissed.1. The plain meaning of s42(1) of the Act was clear. The use of the word “or” at the conclusion of s42(1)(a) means that s42(1)(a) cannot be read conjunctively with s42(1)(b). Any other construction is against the plain words and meaning of the section, which clearly demonstrates the legislative intention. Section 42(1)(a) states that a tow truck with a regular licence “must not” attend a road accident scene in a controlled area unless authorised by the allocation body for that controlled area and given a job number for that authorisation. The section unequivocally establishes authorisation by the allocation body as a prerequisite for a tow truck with a regular licence to attend a road accident scene within a controlled area.2. The suggested construction of s42(1)(a) of the Act by the appellant in this case is against the language of the section and the clear intention of the legislature that a tow truck with a regular licence can only attend a road accident scene in a controlled area if authorised.

Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41; (2009) 239 CLR 27; (2009) 260 ALR 1; (2009) 73 ATR 256; [2009] ATC 20-134; (2009) 83 ALJR 1152, applied.

3. Section 42(1) of the Act cannot be construed as providing a carte blanche to the licensees of regular tow trucks, licensed to operate outside controlled areas, to attend road accident scenes in controlled areas, without authorisation, to tow vehicles with a GVM of four tonnes or more. Not only is such a construction against the language of the section, it is the antithesis of the legislative intention.

Accident Towing Advisory Committee v Combined Motor Industries Pty Ltd [1987] VicRp 48; [1987] VR 529; (1986) 6 MVR 160, applied.

4. There is no inconsistency between Condition 2 and s42(1) of the Act. Condition 2 prohibits attendance of the licensed tow truck at a road accident scene inside a controlled area. Section 42(1)(a) prohibits the holder of a regular tow truck licence causing such tow truck to attend a road accident scene in a controlled area unless authorised. 5. In relation to the penalty imposed by the Magistrate, the manner in which the appellant chose to assert its “right”, by ignoring a warning that it was in breach of its Licence conditions and that its conduct was illegal, justified the finding of the Magistrate that the conduct amounted to a blatant attempt to undermine the regulatory scheme. Further, the assertion that the (illegal) conduct of the appellant was undertaken because it was pursuing its interpretation of the Act carried little weight. Such an attitude of licence holders had the potential to lead to chaotic scenes at road accidents with the attendance of unauthorised tow trucks. It is conduct that demonstrated a brazen disregard of the regulator and was in breach of the plain meaning of the Act and the Licence conditions. It might be thought this conduct reduced the significance of a lack of relevant prior convictions.

12 Cost consultant not admitted to practise carried out certain servicesIn Defteros v Scott MC 12/2014, a cost consultant who was not admitted to practise was requested by a legal practitioner to carry out certain services. When the practitioner failed to pay the consultant, he issued proceedings and was successful. Upon appeal:HELD: Appeal dismissed. 1. The question, which the magistrate was required to address, was whether the fees, claimed by S., were in respect of work, which, contrary to s2.2.2(1) of the Act, had involved the respondent engaging in legal practice.

2. A determination by a court, that a person has contravened s2.2.2(1) of the Act, is a serious finding. Such a conclusion would involve a determination by the court that the person, in this case S., had engaged in conduct which constituted an offence punishable by imprisonment of up to two years. In addition, such a determination would have the consequence of depriving S. of the capacity to continue to engage in the occupation in which he worked for the last 25 years. Accordingly, such a conclusion, by a court, would require a careful analysis of the evidence, and, insofar as any particular factual issue was in dispute, the proof of that factual issue to the comfortable satisfaction of the court. In essence, a conclusion, that a person had acted illegally, as alleged by D., should not be lightly drawn on inadequate or imprecise proofs.

3. In the present case, D. was well aware that S. had been struck off the roll of barristers and solicitors, and that he was not, thus, representing himself as acting as a solicitor. Accordingly, the case did not give rise to an inference by the consumer or potential consumer of S.'s services that S. was a solicitor.

Cornall v Nagle [1995] VicRp 50; [1995] 2 VR 188, referred to.

4. The critical question for the magistrate was whether the work performed by S., which was the subject of the fees charged by him, was work that, although not expressly proscribed by any particular provision in an Act or Regulation, nevertheless involved the exercise by S. of such expertise that, in order that the public be adequately protected, it was required to be done only by those who had the necessary training and expertise in the law.

5. The drafting of pleadings by a legal practitioner in respect of legal proceedings involves, of necessity, the exercise of specific legal expertise and knowledge of legal principles, both procedural and substantive. By contrast, the preparation of a bill of costs involves, in essence, the itemisation of work which is contained in a solicitor’s file, and the application, to those items of work, of the prescribed scale of fees.

6. The preparation of a bill of costs cannot be appropriately compared with the drafting of pleadings. No doubt, the task of the preparation of a bill of costs does involve some knowledge of the principles of the law relating to legal costs. However, in a similar way, the task of the town planning expert, the building consultant and the tax accountant, each require an understanding by those experts of principles of law which affect the area of work in which each of them specialise. The fact that a consultant, in the performance of his work, applies some knowledge of legal principles in the area of the consultant’s specialty, does not have the consequence that the consultant is thereby engaging in legal practice. Certainly, the application of legal learning, and in particular the application of detailed legal learning, in a particular area, might weigh in favour of a conclusion that a consultant has engaged in legal practice. However, it is not, of itself, sufficient to necessitate the conclusion that the particular consultant is, ipso facto, engaging in legal practice.

7. Accordingly, having regard to the evidence that was put before the Magistrate, it was open to her Honour to conclude that she was not satisfied that, in performing the work in respect of which he claimed fees from D., S. was engaged in legal practice. Thus, this case is not authority in respect of the more general question whether a cost consultant is, or is not, engaging in legal practice, contrary to s2.2.2 of the Act.

13 Appeal lodged in respect of a Judicial Registrar’s decisionIn DPP v Bryar MC 13/2014, an appeal in respect of a Judicial Registrar’s decision was lodged with the Magistrates’ Court out of time. When the matter came on before a Magistrate, the appeal was rejected on the ground of double jeopardy.HELD: Appeal allowed. Orders made by the second Magistrate quashed. Having regard to all the factors of the proceedings, the appeal was dismissed.1. The matter in dispute was whether, in criminal proceedings, the police informant may seek a review of a decision of a judicial registrar and further, whether the process was voided as a consequence of the failure to comply with process and procedures of the Act and the Rules.

2. The intent of the legislature in enacting s16K of the Magistrates' Court Act 1989 ('Act') was to provide all parties, including a police informant, with a right of appeal by way of a hearing de novo before a magistrate from a proceeding determined by a judicial registrar. The words of s16K of the Act establish such a right “distinctly”.

3. The underlying policy of s16K of the Act as indicated in the words of the section itself and the statutory intention demonstrated in the Second Reading Speech is that magistrates retain control and supervision of the Court’s jurisdiction. That necessarily means magistrates retain control and supervision of judicial registrars. Thus, by s16K(2) of the Act, the Court of its own motion may seek a direction for review of a decision of a judicial registrar. It is, in the end, incomprehensible that the Parliament would establish a regime for all parties, apart from a police informant in a criminal proceeding (of a minor nature), to seek review of a decision of a judicial registrar, particularly in circumstances where such review, by hearing de novo, is mandatory to the effective delegation of judicial power. There is no ambiguity in s16K of the Act and the establishing of a review process of the decisions of judicial registrars.

4. Such review hearing is a hearing de novo and, in such circumstances, a defence based on a plea in bar is not available. A hearing de novo involves the exercise of the original

jurisdiction and the informant or complainant starts again and has to make out his case and call his witnesses.

5. It was not a requirement of the Rules that the Magistrate, in making the order concerning the review “Application Granted” specifically identified an extension of time for the granting of the application by one day. Form 1, the form required to be used for requesting a review of the decision of the judicial registrar, made no provision for a specific request for an extension of time as permitted by r4 of the Rules. The Magistrate’s order of “Application Granted” was read as encompassing the processes required by r5(4) and (5) of the Rules and incorporating an extension of time of one day as requested in the affidavit considered by the Magistrate. The order of the Magistrate granting the application of necessity meant the Magistrate had extended time for filing of the request and the affidavit.

6. In relation to the point that the request was not made by the police informant, it was not accepted that a police prosecutor could not fill out a form and submit an affidavit on behalf of the police informant in whose name the request was commenced, in a similar way to a solicitor filling out such a form and swearing an affidavit in support on behalf of a client. To interpret the word “party” in the rule as excluding a police prosecutor acting on behalf of a police informant in a police matter was an interpretation that was overly restrictive and technical.

7. A flexible approach to statutory preconditions is to be encouraged and an approach taken that would overcome technical and rigid insistence upon procedural preconditions.

8. Having regard to the fact that the offence, the subject of the proceeding, occurred over three years ago and the hearing before the judicial registrar was protracted, the effluxion of time was very significant and B. had served his penalty. Further, it was apparent that the decision of the judicial registrar was founded on a finding of fact concerning compliance of road signage with the traffic management plan and did not involve in any sense an institutional matter. Finally, the important question of the construction of s16K of the Act had in effect overtaken this proceeding at significant cost both in time and resources. In these circumstances, it was appropriate to not refer this matter back for re-hearing.

14 Civil proceedings – effect of a self-executing orderIn Gill v Gill MC 14/2014 a self-executing order was made which was not complied with.HELD: Application for review dismissed.1. In assessing the plaintiff’s rehearing application, the Magistrate undertook the required assessment of all of the facts and the circumstances, and concluded that the plaintiff should not have had a right to be heard, that is, he should not have been entitled to defend the Defendant’s claim. This was, in substance, because having failed in the first application made pursuant to Rule 59.10(3), the plaintiff had not established any reason why the Self-Executing Order should be set aside (other than the same reasons that had been raised on the first occasion). Thus the effect of the orders made by the Magistrate was for the proceeding to revert to the position it was in the moment before the entry of judgment, and because at that time the plaintiff’s defence had been struck out, he had no standing to be heard. In those circumstances even though the plaintiff was successful in its application, he had no right to defend or to be heard on the issue of the quantum of the Defendant’s claim.

2. The Self-Executing Order, once it took effect, attracted the well-established general rule that once an order of the Court has been passed and entered or otherwise perfected in a form which correctly expresses the intention with which it was made, then the Court which made the order has no jurisdiction to alter it.

3. The reasoning of the Magistrate in rejecting the right to be heard on the question of quantum did not disclose error. He reasoned that, whilst it was conceivable that the judgment entered on 9 August 2012 could be set aside and the plaintiff could be granted leave to defend the quantum of the claim, to do that where the defence was struck out for non-compliance with orders concerning the discovery of documents relating to that quantum, and where it was the second application of that character, was unfair, not in the interests of justice and would undermine the orders of the Court. 4. The decision of the Magistrate to limit the order setting aside the judgment in the exercise of his discretion under s110 was a reflection of the purpose of a self-executing order. The purpose is to ensure timely compliance with the procedural requirements. The Magistrate was right not to set aside the Self-Executing Order in the circumstances of this case because that would have significantly undermined the utility of the Self-Executing Order, not to mention the fact that it had already been the subject of an application to set it aside based upon substantially the same material as was before the Magistrate for the purposes of the

impugned decision. 15 Drink/driving – whether breath test conducted on a breath analysing instrument

In O’Connor v County Court of Victoria & Bradshaw MC 15/2014, the defendant/driver appealed against a conviction for drink/driving. The question was whether there was sufficient evidence that the breath test had been conducted on a defined breath analysing instrument.HELD: Originating motion dismissed.1. The issue in the present case was whether the Court erred in law in holding that the operator B. had established that the breath analysing instrument, which was used to test the plaintiff O'C., was an instrument which met the definition of a breath analysing instrument in s3 of the Act. That is, whether the instrument in question was an Alcotest 7110 instrument and whether the plate attached to the instrument was inscribed with the numbers 3530791.

2. The authorities make it plain that, where notice has been given under s58(2) of the Act, the certificate constitutes evidence of each of the facts stated in it, including facts which are relevant to establish that the apparatus, used to test a person’s blood alcohol content, is a breath analysing instrument as defined by s3 of the Act.

3. In this case, the certificate contained the words “Drager Alcotest 7110”. The judge was entitled to form the view that, by containing those words, the certificate was evidence of the fact that the instrument, operated by B. was a “Drager Alcotest 7110”. The certificate was produced by an apparatus, which was used by B. to test O'C's blood alcohol content by analysing a sample of his exhaled breath. As a matter of common sense, the words “Alcotest 7110”, on that certificate, were clearly capable, without further explanation, of denoting the type of apparatus used by B. Accordingly, it was open to the judge on the evidence to conclude that the instrument used by the operator in this case, was a Drager Alcotest 7110, for the purposes of the definition of a breath analysing instrument in s3(a) of the Act. 4. The issue, whether there was a conflict between the sworn evidence of B., and the numbers which she read out in the conversation she had with O'C., and, if so, how that conflict should be resolved, was entirely a matter for the judge as the tribunal of fact in the case. The evidence of the recorded conversation did not, as a matter of law, necessitate the conclusion contended for by O'C., namely, that the judge could not be satisfied that the label, attached to the breath analysing instrument, was impressed with the number 3530791.

5. It is clear that when B. read out the numbers on the instrument, she paused after reading the numbers “51”, and then said the words “91”, as if she had read the numbers “51” in error. This observation demonstrates that there was no necessary inconsistency or tension between the evidence of B. and the recorded conversation.

6. It was a matter for the judge whether there was a relevant discrepancy between the evidence of B., and the recorded conversation, and, if so, whether that difference was required to be explained by B. Equally, it was a matter for the judge, as the tribunal of fact to decide, whether, in the absence of any such explanation, her Honour should draw the inference that any such explanation given by B. would not have assisted the prosecution. The absence of any such explanation by B. did not necessitate the conclusion that the judge could not rely on the sworn evidence of B. as to the numbers contained on the plate affixed to the breath analysing instrument.

7. Accordingly, it was open to the judge, on the evidence, to be satisfied beyond reasonable doubt that the plate on the instrument was inscribed with the letters “3530791” and to find the charge proved.

16 Speeding charge – whether evidence in preliminary brief sufficient to prove chargeIn Rodger v Wojcik MC 16/2014, an ex parte speeding charge was found proved by a Judicial Registrar and a penalty imposed. Two requirements specified in the regulations namely, that a reading of (888) had been displayed on the radar device and that the Doppler audio signal of the device was audible to indicate normal operation were not mentioned in the certificate or in evidence. Upon appeal--HELD: Appeal allowed. Sentencing orders set aside. R. found guilty of exceeding the speed limit by less than 10km/h and fined $175. 1. There was no evidence that the radar had been used in accordance with rr46(a)(ii) and (b) of the Road Safety (General) Regulations 2009. There was nothing in the police informant's statement indicating either that he had ensured that a reading of (888) had been displayed when connected to a source of electricity or that the doppler audio signal of the radar device was set at a level clearly audible to him or that any such signal had indicated normal operation.

2. In view of the fact that there was no evidence in the preliminary brief that the radar had been used in accordance with rr46(a)(ii) and (b), it was not open to infer that it had been so used. To do so would have been to speculate. While evidence is not necessarily to be understood by reference to the maxim expressio unius est exclusio alterius, it seems that, absent other evidence, no trier of fact acting reasonably could exclude the possibility of non-compliance with those provisions when the informant expressly mentioned compliance with other related provisions. In those circumstances, it was not open to the judicial registrar to act on the reading given by the radar.

3. To be sure, the judicial registrar did not in his reasons say that he found that the appellant was travelling at 127 km/h. However, it was open to the registrar to find the charge of exceeding the speed limit proved but it was not open for him to say by how much the speed limit was exceeded.

17 Speeding charge – application for release of documents – test of legitimate forensic purposeIn Agar v McCabe MC 17/2014, the presiding Magistrate refused the defendant to a speeding charge access to documents as to whether the relevant traffic camera was operating correctly at the time of the alleged offence and had been sealed in accordance with the regulations. HELD: Application for production of the subpoenaed documents dismissed. Costs order quashed. Remitted to the Magistrates' Court to rehear and determine the costs application according to law.1. In relation to the decision in respect of the application, the test of legitimate forensic purpose was one of fact and degree and allowed for differences in opinion. Although one might not agree with it, the Magistrate’s conclusion did not defy comprehension or lack an intelligible justification.

2. It fell to the Magistrate to assess A.’s reliability and credibility as a witness and, it followed, the strength of the evidence said to demonstrate the legitimate forensic purpose. There was little, if any, evidence before the Magistrate that would not have been affected by an unfavourable assessment of A. as a witness. As to whether the Magistrate did or should have assessed the evidence in this way is not known, but it was open to him to do so.

3. Even if the Magistrate had not taken an unfavourable view of A.'s evidence, there was still the question of the probative limits of that evidence. The evidence went beyond a “mere assertion” that A. was not speeding, but that was not the test. There was at least some merit to the opposite conclusion – that a collection of uncorroborated assertions that a person would or could not have been speeding added up to little more than an assertion that they were not speeding – and having identified this possible and intelligible justification for the decision, the task of the reviewing court was concluded.

4. Nothing in the Magistrate’s reasons or, for that matter, the transcript was suggestive of irrationality or illogicality or the drawing of inferences unsupported by probative material. It followed that illogicality or irrationality could not have been inferred from the conclusion itself.

5. The principles of proportionality and consistency ordinarily guide the judicial discretion to award costs. Although an unfettered discretion maximises the possibility of doing justice in every case, consistency in its exercise maintains public confidence in the legal process and is the ‘antithesis of arbitrary and capricious decision-making’. The principle that procedural costs ought be proportionate to the dispute in question will be alive in all cases but has an additional dimension in the criminal jurisdiction.

6. A challenge to quantum on the basis of its alleged disproportionality or inconsistency will only succeed where the costs order is so unreasonable or plainly unjust that the exercise of the discretion has effectively miscarried. It followed that unless the award was so disproportionate and/or inconsistent that it was manifestly unreasonable or plainly unjust, it will be irrelevant that a reviewing court might form the view that the award was inconsistent or disproportionate.

7. The costs order made by the Magistrate was severe and arguably unfair in the circumstances. The 'on the spot' penalty for exceeding the speed limit by less than 10km/h was a fine of around $180. If A. was convicted, the total pecuniary outcome of his criminal proceeding including the $6,140 costs order would be disproportionate to this penalty, which was one measure of the seriousness of the offence. Similarly, the discrepancy in costs outcomes between cases in which private counsel are and are not briefed is obvious and introduces an element of inconsistency to the decision.

8. However, the costs order was not so unreasonable or plainly unjust that the Magistrate's discretion miscarried. It was open to the Magistrate to make a costs order that did not allow senior-junior counsel his legal fees. Proportionality and consistency are only two of the many considerations that guide the costs discretion and provided they are taken into account, it is not a ground of review that they might have been given excessive or inadequate weight, or that a different conclusion on costs could or should have been reached.

9. The Magistrate might have referred to some relevant countervailing consideration or, equally, stated his opinion that the award was proportionate or that whilst it was disproportionate, proportionality was only one relevant factor in the mix. It was more probable than not that a Magistrate who was entertaining making such an award and who understood that matters going to proportionality and consistency were relevant to the exercise of the discretion would have spoken to the submission or invited the first defendant to comment upon it. The Magistrate did not acknowledge the submission at all and moved seamlessly to conclude the issue adversely to the plaintiff.

10. It followed from the above that it was more probable than not that the Magistrate did not turn his mind to the matters raised by the principles of proportionality and consistency. Accordingly, the costs order was quashed and remitted to the Magistrates' Court for rehearing and determination.

11. It is necessary to say something about the adequacy of the Magistrate’s reasons, which were really no more than peremptory statements of conclusion. The plaintiff A. did not press this as a ground of review and in any event it is not clear that this failure could have constituted reviewable error given the nature of the decision. It is desirable, however, that Magistrates sitting in the Criminal Division provide at least some reasons for their decisions. These need not be lengthy and in a case such as this might consist of no more than one or two lines. The failure to do so frustrates the review process.

18 Failure to comply with condition of tow truck licenceIn Western Truck Towing v Douglas & Kolonis MC 18/2014, the plaintiff company sought to appeal from a finding of guilt in relation to a breach of the Accident Towing Services Act 2007,HELD: Application for leave to appeal dismissed.1. Condition 2(a) of the licences relevantly required that a licensed tow truck should ‘be used as a tow truck for the purpose of lifting and carrying or lifting or towing damaged or disabled motor vehicles ... only from a road accident scene ... outside a ‘controlled area’. Four of the charges particularised the offence as being constituted by attendance at a road accident scene within a controlled area for the proscribed purpose.

2. On a proper construction of Condition 2(a), the mere attendance of a tow truck at an accident scene within a controlled area for the proscribed purpose was a breach of the condition because what Condition 2(a) prohibited was the ‘use’ of a licensed tow truck ‘for the purpose of’ lifting and carrying damaged or disabled motor vehicles. It was a wholly inescapable inference, from the fact of attendance of each of the applicant’s tow trucks at an accident scene for the proscribed purpose as found by the Magistrate, that the tow truck was being ‘used’ for the proscribed purpose.

3. Be that as it may, the offence charged was breach of a condition of a licence. That the particulars of four of the charges referred to the tow truck as attending at an accident scene in a controlled area without specifically alleging that the tow truck was being used for the proscribed purpose, although they did refer to attending for that purpose, was at best a pedantic criticism of the particulars, but nothing of substance flowed from that criticism.

4. Accordingly, the Magistrate did not make any error of law in finding the charges valid, nor did the judge make any error of law on this point. At any rate, the decision in this respect was not attended by a sufficient doubt as would warrant a grant of leave to appeal.

5. The other submission of the applicant was that the effect of Condition 2 was to prohibit the operation of the applicant’s tow trucks in a controlled area only with respect to vehicles with a GVM of less than four tonnes. The Judge’s decision on this submission was clearly correct for the reasons stated by his Honour. At any rate, the decision was not attended by sufficient doubt as would warrant a grant of leave to appeal. Accordingly, leave to appeal was refused.

19 Whether legal cost consultant engaged in legal practiceIn Defteros v Scott MC 19/2014, the Court of Appeal dealt with a case where a cost consultant performed work on several files and sought payment. The question was whether the consultant carried out “legal practice”.

HELD: Appeal dismissed. In relation to the question of costs on the appeal and the application for costs of senior and junior counsel for S., certification not granted but was a matter for determination by the Costs Court. Defteros v Scott [2014] VSC 205; MC 12/2014, approved.1. The critical question for the magistrate was whether the work performed by S., which was the subject of the fees charged by him, came within the third category described by Phillips J in Cornall v Nagle [1995] VICRP 50; [1995] 2 VR 188, namely, work that, although not expressly proscribed by any particular provision in an Act or Regulation, nevertheless involved the exercise by S. of such expertise that, in order that the public be adequately protected, it was required to be done only by those who had the necessary training and expertise in the law.

2. The only issues before the magistrate were whether the particular work which S. had done in relation to the eight files necessarily involved engagement by him in legal practice.

3. The work performed by S. in respect of each of those files was conducted under the supervision of the applicant D. It was plainly open to the magistrate to decide, in those circumstances, that on the material placed before her, D. had failed to establish that, in respect of that work, S. was engaged in legal practice. Further, s2.2.2(1) of the Act provides that a person must not engage in legal practice unless the person is an Australian legal practitioner. A penalty of imprisonment for two years is imposed. In those circumstances, the magistrate was right to require proof in the nature of that described in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336; [1938] ALR 334; (1938) 12 ALJR 100.

4. Obiter. What is necessary to establish in seeking to show that the conduct of an unqualified person falls within the third category identified in Cornall v Nagle, two enquiries must be pursued: the first enquiry will reveal the major premise in an analysis whether work performed is work for which the public must be protected so that it is only performed by suitably qualified persons; the second enquiry involves the minor premise: what was done in the particular case. Just because work is done by a person with particular professional qualifications does not mean that that work will be work for which the person must have professional qualifications. A solicitor may perform functions that can be adequately performed by staff without professional qualifications. Not all the work done by solicitors is work for which they require either professional qualifications or a practising certificate. Conversely, much of the work which is done by unqualified persons in the office of a solicitor will not involve those persons engaging in legal practice where that work is done under the supervision of a solicitor.

5. The first enquiry addresses the question: what work associated with legal practice should only be done by those ‘who have the necessary training and expertise in the law’. That enquiry will involve both empirical and evaluative considerations. The empirical considerations will involve an analysis and description of the work which is done by solicitors; the evaluative considerations will involve an assessment as to what parts of that work may only be done by persons admitted to practise. The second enquiry will involve an analysis of what was done in the particular case.

6. Because of the paucity of the evidence as to what S. did in this particular case (together with a failure to give any evidentiary attention to the major premise), the present case was not a suitable case to draw any wider conclusions as to the more general question whether some or all of the work performed by costs consultants involves their engaging in legal practice contrary to s2.2.2 of the Act.

7. In relation to the holdings on the questions of law by the magistrate and the judge, appeal dismissed.

8. In relation to S.'s application for costs of the appeal, it was submitted that in view of the effect that a successful appeal could have had on S., it may have been appropriate that the order for costs included a certificate for representation of S. by both senior and junior counsel. This was a matter for the Costs Court.

20 Client legal privilege/witness living overseasIn Wilson v Mitchell (No 2) MC 20/2014, an application for release of a seized file was successfully made to a Magistrate. Upon appeal-HELD: Appeal allowed. The material in relation to the seized statements was not an exception to s64(2) of the Evidence Act 2008 ('Act') and ought not to have been admitted into evidence. Remitted to the Magistrate for rehearing.1. Client legal privilege is a fundamental principle of the common law. It enhances the administration of justice by facilitating the representation of clients by their legal advisors.

Clients can only consult their lawyers with ‘freedom and candour’ within the protection afforded by the privilege. The privilege ought not readily be set aside, and if it is to be set aside, then only on the basis of admissible evidence.

2. Any consideration of whether expense or delay is undue requires consideration of the significance of the impugned asserted facts said to be proved by the representations and the nature of the proceedings. Relevant matters include :• the actual cost of securing the attendance of the witness;• a comparison of that cost to the value of what is at stake in the litigation; and• an assessment of the importance of the evidence the witness might give.

Whether a delay is undue will depend not just on the delay itself but also upon what is at stake in the litigation.

3. On the material before him, it was not open to the Magistrate to conclude that to call the witness would involve undue cost, delay or be reasonably impracticable. The issue at stake was far from trivial and the witness's evidence was central to the application. The mere assertion by a party that the witness resided in Malaysia was insufficient to establish this exception. Audio-visual links are a fact of modern litigation. Had the police served a s67 notice of its intention to rely on s64(2), it may well have been a simple matter to secure the witness's attendance for cross-examination via an audio-visual link.

4. Accordingly, it followed that s64(2) of the Act was not engaged as an exception to the hearsay rule and thus the witness's statements, on the material before the Magistrates’ Court, ought not to have been admitted into evidence on the application. 5. The application was remitted to the Magistrate for rehearing on the evidence that was properly before the Magistrate.

21 Money transferred between parties; whether a loanIn Bernstone v Almack-Kelly MC 21/2014, proceedings were taken by a person who transferred money to another. The Magistrate held that the money did not have to be repaid. Upon appeal-HELD: The denial of procedural fairness constituted an error of law but, having regard to the evidence before the Magistrate, appeal dismissed.1. Without evidence that there was an agreement by B. to accept a loan, and an agreement by A-K to accept the obligation to repay the loan, the Magistrate could not be satisfied that there was a loan.

2. Having regard to the evidence, the Magistrate failed to entertain B.'s alternative restitutionary claim and therefore denied B. procedural fairness. It cannot be said that, had the Magistrate heard B.'s submissions on the restitutionary claim, there could have been no difference to the outcome of the proceeding. The denial of procedural fairness constituted an error of law.

3. As the parties agreed that if there had been a denial of procedural fairness, the appeal judge should decide the matter on the basis of the evidence, rather than remit the matter for retrial.

4. Having regard to the evidence, B. failed to establish that the payment was made upon a mistake of fact giving rise to an obligation on A-K to make restitution. The first basis of the restitution claim therefore failed.

5. The question was whether A-K made out the defence of change of position. A court will not order restitution if the defendant has acted to his or her detriment on the faith of the receipt.

6. In making payments out of her bank account totalling $21,230, A-K changed her position on the faith of the receipt. That change of position was made on the assumption that she was entitled to deal with the receipt in that manner. Having regard to the Magistrate’s credit findings, that A-K's account was truthful: that she believed in good faith that she was entitled to deal with the receipt and that the receipt was not subject to the obligation to repay it pursuant to a loan agreement, A-K was not under any obligation to make restitution.

22 Accident Compensation – whether worker entitled to paymentsIn Cetel Communications Pty Ltd v Parker MC 22/2014, a Magistrate held that an insurer did not have to pay a worker weekly payments of compensation. Upon appeal-HELD: Appeal allowed, the Magistrate's judgment set aside and the complaint dismissed.

The magistrate erred in construing ss114(1A) and 114(2A) of the Act by not holding that s114(1A) of the Act does not limit the application of subs (2A) to circumstances where the worker is receiving weekly payments at the relevant date. Consequently, the Magistrate erred in law by holding on the basis only that the worker was not in receipt of weekly payments as at 9 May 2012 that Allianz did not have power to determine pursuant to s114(2A) not to pay the worker compensation in the form of weekly payments from that date.

23 Costs in a proceeding where matters to be considered.In Agar v McCabe & Anor (No 2) MC 23/2014, the principles to be considered by a Court were spelled out.HELD: No order for costs made.1. Costs are in the discretion of the Court. Although that discretion is effectively unfettered, there are limits on its exercise in the sense that it must be exercised judicially. The central principle that guides the discretion is one of doing justice to the parties in the circumstances of each case. The usual, though by no means unyielding, rule is that costs will follow the event.

2. As both parties had some success, courts often make orders that reflect the parties’ relative success and failure. In the circumstances of this case, the parties’ relative successes and failures would be best represented by making no order as to costs. The practical effect of this will be that each party will bear their own costs of this appeal.

3. In terms of complexity, the parties' cases were more or less evenly matched. Having regard to the principles of consistency and proportionality, if costs were awarded, the total pecuniary outcome of the plaintiff’s criminal proceeding would be disproportionate to the seriousness of the alleged offending, one measure of which was the on-the-spot penalty of approximately $180.

4. And as an instance of proportionality, although the first defendant was commendably represented by senior and junior counsel, this was not a case that required two counsel.

24 Sentencing – factors to be considered where a cumulation order madeIn Saleem v R MC 24/2014, the Court of Appeal considered the relevant factors where a sentencing order was made in cumulation of the main sentence.HELD: The appeal against the sentence of 14 months' imprisonment for attempting to pervert the course of justice refused. The appeal in respect of the cumulation orders allowed and the sentence reduced.

The order for cumulation produced an overall sentence that insufficiently reflected the dictates of totality. The main offence was committed so as to try to avoid some of the sentencing ramifications and there were a number of mitigatory matters which bore on the question of the degree to which the cumulation was to be ordered.

25 Contract – loan agreement – Natural JusticeIn Fato v Regione Calabria Pty Ltd MC 25/2014, a claim for payment of a loan was heard by a Magistrate. During the hearing, the Magistrate interrupted counsel, cross-examined a witness and expressed views on the evidence during the course of the proceeding.HELD: Appeal allowed in relation to the issue of the order for the amount of interest payable. In relation to the other matters, the Magistrate's factual and legal findings on the ultimate issues in dispute were open to him. In relation to the complaint about the Magistrate's behaviour, in the context of the trial as a whole, F. was not denied natural justice and the trial did not miscarry.1. The ultimate issues for the Magistrate were whether there was a binding loan agreement for $35,000 between F. and the respondent and whether F. had breached that agreement. There was sufficient evidence to enable the Magistrate to resolve these issues in favour of the respondent.

2. It was not in dispute in the proceeding that, if there was a valid loan agreement between the respondent and F. containing the terms alleged by the respondent, F. had not complied with those terms. In other words, while the existence of a loan agreement was in issue, it was not in dispute that F. had not made any payments of principal or interest pursuant to any such agreement.

3. Accordingly, F.'s ground of appeal that the Magistrate made findings of fact for which there was no evidence, or insufficient evidence to support them could not be sustained.

4. In relation to F.'s ground of appeal that the claim was statute barred, the Magistrate found as a fact that the contractual obligation was varied to extend the time for the first payment of interest. It followed that the proceeding which was commenced in October 2011

was not statute barred. 5. The third ground of appeal was that F. was denied natural justice in that the Magistrate called for evidence, unreasonably interrupted counsel, cross-examined a witness and expressed views on the evidence during the course of the proceeding.

6. The conduct of a judicial officer during the trial of a civil action may cause a mistrial for a number of reasons. Two reasons which were presently relevant were where the conduct gave rise to a reasonable apprehension of bias and where the conduct involved such excessive interference with a party’s running of his or her case that it deprived that party of a trial according to law.

7. Procedural fairness is directed at the fairness of the decision-making process rather than fairness of outcome, and includes a judicial obligation to afford a party a reasonable opportunity to present or meet a case. The introduction by a trial judge of material not yet in evidence may render a hearing unfair in the relevant sense, particularly when the material does not form part of the case to be presented by the party affected.

8. The Magistrate’s behaviour transgressed the limits of legitimate judicial involvement in the conduct of a trial. However, when the trial was considered as a whole, F. failed to make out the first limb of her natural justice and mistrial ground of appeal. The Magistrate's questions did not have any material impact on the manner in which F.'s trial counsel conducted her case. Nor did the Magistrate's excessive interference in the conduct of the trial deprive F. of natural justice or a trial according to law that a new trial was warranted in the interests of justice.

9. The second reason for rejecting the second limb of the natural justice ground of appeal was that, even if the Magistrate’s behaviour denied F. natural justice, her trial counsel was fully aware of that behaviour and did not raise any objection with the Magistrate in relation to it. There was no complaint about any aspect of the Magistrate’s behaviour during the proceeding. Indeed, in respect of some of the matters about which F. now complains, her trial counsel appeared to acquiesce in the Magistrate’s conduct.

10. It followed that if, contrary to the appeal judge's conclusion, the Magistrate did breach the rules of natural justice in relation to F., her failure to object to any such breach during the hearing constituted a waiver of the right to rely on such breach in the appeal.

11. Although the third ground of appeal was rejected, it was necessary to place on record that if the Magistrate had exercised more self-restraint and behaved more discreetly, the third ground of appeal would not have arisen. The Magistrate’s behaviour prolonged the trial, would have given rise to a sense of grievance on the part of both parties and added to the grounds of appeal. His Honour was facetious and sarcastic in a tense proceeding involving family acrimony and serious allegations of fraud when he should have been cautious and tactful. The Magistrate would have done well to heed the wisdom and good sense of the legal principles referred to.

26 Claim in conversion – whether claimant owned property in disputeIn Taylor v Schaub MC 26/2104, T’s premises were bought by S which included certain goods in the house. T. claimed ownership of the goods and sought their return or damages. The Magistrate dismissed the claim.HELD: Appeal dismissed.1. The question of law relied on by T. was whether it was reasonably open to the Magistrate to find T.'s case had no real prospect of success and to give summary judgment for the respondents S., pursuant to s63 of the Civil Procedure Act 2010 (Vic). The associated ground of appeal was whether the Magistrate was wrong in law in finding that T.'s claim had no real prospect of succeeding at a hearing, based upon his finding that T.'s Statement of Affairs under a Personal Insolvency Agreement made in 2008 was contradictory of his claim.

2. T. had had a number of opportunities to place before the Magistrates’ Court and appeal court evidence about the Statement of Affairs. Those opportunities occurred before the hearing in the Magistrates’ Court, at the hearing, including being able to apply to have T. give oral evidence, and also after the appeal was lodged, including pursuant to orders and directions that the Associate Justice gave for the conduct of the appeal.

3. T. retained the solicitors, who had acted for him in the Magistrates’ Court, for the purposes of preparing this appeal. Taking that into account and also considering the effect on S. by the lengthening of this appeal, if further evidence was permitted, T.'s application was refused.

4. It was important that the Magistrate received no explanation from T. about the Statement of Affairs or any affidavit in which T. sought to establish his ownership of the goods. In those circumstances, it was reasonably open to the Magistrate to conclude that the Statement of Affairs constituted an admission that T. did not own the goods. In those circumstances, the Magistrate was entitled to conclude that S. had established that T.’s claim had no real prospects of success and dismiss T.'s claim.

27 Recording court proceedingsIn Kyriazis v The Magistrates’ Court at Heidelberg and Mele MC 27/2014, a party was denied the opportunity to record the proceeding. HELD: Application for review dismissed.1. The function of an order in the nature of certiorari is to remove the legal consequences or purported legal consequences of an exercise or purported exercise of power. Thus, an order in the nature of certiorari is available only in respect of an exercise or purported exercise of power which has, at the date of order, an “apparent legal effect”. An order in the nature of certiorari is not available in respect of an exercise or purported exercise of power the legal effect or purported legal effect of which is moot or spent. An order in the nature of certiorari in those circumstances would be not simply inutile; it would be unavailable.

Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43; (2013) 303 ALR 64; 88 ALJR 52, applied.

2. There would be no utility in making the order sought quashing the decision of the Judicial Registrar. The charges have been re-heard, convictions and penalties imposed and an application for a subsequent re-hearing refused.

3. Similarly, mandamus ordering the Magistrates’ Court to conduct a re-hearing which effectively had already been performed was not available. There was no argument that the re-hearing application before the Magistrate was a nullity nor was there anything in the material before the Court to suggest that this might be the case.

4. In refusing a late adjournment application by the defendant, the Court took into account the time limit for the commencement of proceedings, the limited prospects of successful challenges to the Magistrates' Court refusals to allow recording and Supreme Court decisions recognising the inherent power of a Court to determine whether the recording of proceedings will be permitted.

28 Motor vehicle – forfeiture of – whether hardship a relevant factorIn Overend v Chief Commissioner of Police MC 28/2014, an application was made for the forfeiture of a defendant’s vehicle due to his offending. The Magistrate declined to take into account that the defendant’s would suffer hardship by the forfeiture.HELD: Appeal allowed. Order of forfeiture made by the Magistrate quashed. Referred to the Magistrates' Court for rehearing and re-determination of the Chief Commissioner's application in accordance with law.1. The Magistrate misconstrued the relevant provisions of the Road Safety Act 1986 ('Act'); that he was not obliged to disregard any hardship to the plaintiff personally; and that he fell into jurisdictional error accordingly. Since the magistrate’s error was one of law and was apparent from his reasons, it constituted not only jurisdictional error but also error of law on the face of the record.

2. The proper construction of s84Z(3A) of the Act is that where an offender who is liable to a forfeiture order, and who is therefore liable in the alternative to an impoundment or immobilisation order, is, at the time of the determination by the court of an application by the Chief Commissioner for either kind of order, disqualified or suspended from driving for a period longer than three months, the court must not decline, on the ground of exceptional hardship caused to the offender personally, to make, at least, an impoundment or immobilisation order against the offender’s vehicle. This interpretation is supported not only by the context but by several principles of statutory construction.

3. In relation to s84Z, one approaches it in the knowledge that, subject to s84Z, it is mandatory to make at least an impoundment/immobilisation order where the s84S(1) preconditions are satisfied whereas the position under s84T is that a forfeiture order is never mandatory. It is true that the expression “subject to s84Z” appears in s84T but that does not turn the discretionary power into a mandatory duty in any circumstances.

4. Section 84Z(2) provides that the court must not make an impoundment or immobilisation order or a forfeiture order where the relevant offence was committed without the knowledge or consent of the registered operator of the vehicle. It is clear beyond

argument that the effect of s84Z(2) is that the court must not make either kind of order in those circumstances, regardless of whether the offender himself or herself would come within s84S(1) or s84T(1). 5. With this background, it becomes quite natural and correct to read s84Z(3) as meaning that the court may choose to make neither kind of order if satisfied that either kind of order would cause “exceptional hardship” to any person.

6. Subsection 84Z(3) is expressed to be subject to subsections (3A), (3B) and (3C). It thus becomes clear that s84Z(3A) amounts to no more than a limitation on the general rule expressed in s84Z(3). That is to say, a certain type of case is taken outside the rule that the court may decide to make neither kind of order due to exceptional hardship. What s84Z(3A) means in substance is that where an offender is already under suspension or disqualification for a period longer than three months, he or she cannot be heard to say that the making of an impoundment or immobilisation order (which cannot extend for a period longer than three months) would cause him or her exceptional hardship.

29 Claim for maintenance fees and special levies – whether unit holder had a legal counterclaimIn Sullivan v Greyfriars Pty Ltd MC 29/2014, the owner of a unit in a block of units failed to pay fees and levies. When action was taken against him, he filed a counterclaim in the sum of 4487,000 setting out a range of claims. His counterclaim was dismissed by a Judicial Registrar.HELD: Appeal dismissed.1. The appellant S. did not dispute before the Registrar the amount of the maintenance levies, or the entitlement of the plaintiff (GFP/L) to levy them. On a number of occasions in the course of the hearing he said that he would have paid them if he could have, but was unable to do so because the actions of the plaintiff had “pushed him over the edge” and caused him to leave work with consequent financial loss.

2. In relation to the claim for the amounts outstanding and the evidence given which was not challenged, no error of law was shown in the determination of the Judicial Registrar that the amounts were outstanding.

3. The Registrar found that S. had purchased shares in the plaintiff, which gave him a right of sole occupancy of Flat 36, and had not purchased that land outright; and that he had signed a shareholder agreement and by so doing agreed to be bound by the plaintiff’s rules. She held that under those “rules” the plaintiff was entitled to raise levies for the maintenance of the property and special levies and that S. had not made any payment with respect to any levy since early 2009 (which had been conceded).

4. In the counterclaim, S. claimed over $400,000 for loss of income, forced eviction, loss of rent, reduced rent, legal expenses and accrued debt. He ascribed these losses to the actions of the plaintiff, or its officers, towards him. It was accepted that S. felt passionately aggrieved at the conduct of the plaintiff and its officers towards him. He said that those actions caused him acute stress, caused him to vacate his flat against his will, led to him being unable to work, and occasioned the other losses he identified. It was on this basis that he said in his defence and counterclaim that he should not be required to pay the levies, or, if he was, his claim for damages should be offset against them.

5. The difficulty that S. faced in the Magistrates’ Court was that loss and causal connection of the loss to the actions of another were not enough in law to make that other (the plaintiff), liable in law for those losses. The plaintiff would only be liable for those losses if it was in breach of some duty or obligation to S., or statutory provision that created a civil right of action at the instance of S. In general terms, the combination of such a duty, obligation or statutory provision, loss, and causal connection created what is known as a cause of action i.e. a right to sue the other party for a civil remedy such as damages. A person can only succeed in a civil claim in a court if he can bring his grievance within a cause of action known to law. It was in this respect, even if in no other, that S.’s case in the counterclaim was doomed to fail.

6. The aspects of the Charter, the criminal law, the ASIC Act, and “structured oppression” identified in the counterclaim did not constitute causes of action for suit in civil law. Nor did the other matters that S. sought to raise on appeal. Neither the counterclaim nor the other matters raised identified any cause of action known to law that could be brought in the Magistrates’ Court.

7. Accordingly, there was no error in the Registrar dismissing the counterclaim summarily. As no cause of action within the jurisdiction of that court was shown, there was no utility in hearing any evidence from S. in support of the counterclaim. The matters set out in it were thus fairly described as either irrelevant or outside the jurisdiction of the Magistrates’ Court (in the case of oppression), and so fell within the reasons that the Registrar gave.

30 Power of attorney – who may appear for a partyIn Vella v Wybecca Pty Ltd MC 30/2014, the defendant was represented by a person who was not a legal practitioner. Leave was refused.HELD: Appeal dismissed.1. The general principle of agency expressed in Halsbury’s Laws of England, 5th Edition, is as follows:

As a general rule whatever a person has power to lawfully to do can be done by him, her or it through an agent. There are exceptions including where a statute prevents it and where the power concerned is purely personal and therefore not capable of delegation.

2. There are restrictions upon an attorney appointed by an instrument such as that in this case. Both the Instruments Act and the general agency principles set out in Halsbury state that an attorney can only be lawfully appointed to do that which the donor of the power can lawfully do by an attorney.

3. G. did not just seek to represent V. at oral hearings. He purported to act as, in effect, his solicitor in the proceeding, notwithstanding he was not entitled to do so. Both forms of representation were prohibited by the Legal Profession Act.

Waddington v Magistrates' Court of Victoria & Kha (No 2) [2013] VSC 340; MC 32/2013; and

Waddington v Dandenong Magistrates' Court & Anor [2014] VSCA 12; MC 08/2014, applied.

4. On V.'s own case, put through his attorney G., he suffered from illiteracy and inability to understand legal language such that he was incapable of managing his affairs in relation to the proceeding. If that case was accepted, V. fell within the definition of ‘handicapped person’. Accordingly, by r15.02 of the Supreme Court (General Civil Procedure) Rules 2005, he would be unable to commence a proceeding in the Supreme Court (such as his appeal from the Magistrates’ Court) except by a litigation guardian who must act by a solicitor.

5. Having heard G. endeavour to represent V.'s interests, he was an inappropriate person to represent V. at any hearing in the proceeding. He lacked any proper understanding of the legal process or the real issues in V.'s case. While polite, he provided no useful assistance to the Court on the hearing of the appeal. The continuation of his representation of V., however limited, would likely cause significant waste of Court time and resources, and the Court was not satisfied that G. would conduct V.'s case in an orderly or responsible fashion. Further, allowing G. to represent V. would likely add to the respondent’s costs of the proceeding. The amount in dispute did not justify that any unnecessary costs be incurred. The associate justice was right to refuse to exercise her discretion to grant G. leave to represent V.

6. The appropriate course was for V. to appear in person at the next interlocutory hearing in his appeal and, if he wished, to seek to be assisted by an appropriate McKenzie friend. Given his familiarity with the issues, G. may be the appropriate person to fulfil that role. It should be noted, however, that a ‘McKenzie friend’ does not have the right of audience. Any person, whether he be a professional man or not, may attend as a friend of either party, may take notes, may quietly make suggestions, and give advice; but no-one can demand to take part in the proceedings as an advocate, contrary to the regulations of the court as settled by the discretion of the justices.

Apostolou v Commissioner of State Revenue [2008] VSC 332; andMcKenzie v McKenzie [1971] P33; [1970] 3 All ER 1034; [1970] 3 WLR 472, applied.

31 Accumulation of infringement notices – vehicle seizedIn Living Word Outreach Inc v Deputy Sheriff of Victoria MC 31/2014, 47 infringement notices had been accumulated and not paid. A Magistrate dismissed a summons to stay the disposal of a vehicle seized by the deputy Sheriff.HELD: Appeal dismissed.1. There was no doubt that, upon the proper construction of the Act, by the time the appellant LW. issued the summons in the Magistrates’ Court, the opportunities prescribed in the Infringements Act 2006 ('Act') for referring the infringement notices to the Magistrates’ Court or for seeking revocation of the enforcement orders had been extinguished. Hence if LW. were to succeed on the appeal, it had to succeed on its argument directed toward the

validity of the Act itself or satisfy the Court that there was a denial of procedural fairness, lack of due process, or bias in the Magistrates’ Court proceeding.

2. Accordingly, the central question for the Court, then, was whether the magistrate erred in law in considering that the Act was not invalidated by operation of the Imperial Acts Application Act 1980 or for some other reason.

3. It followed from what was said in the relevant authorities that the provisions of the Imperial Acts Application Act 1980 are not to be understood as being capable of striking down provisions in other statutes. Rather, the principles there enshrined lay the groundwork of the constitutional framework and find expression in more specific principles. Accordingly, there was no error in law in the decision of the magistrate to reject LW.'s argument that the Act was somehow invalid.

4. LW. chose not to avail itself of the opportunity provided under the Act, which remained open until enforcement orders were made, to refer the matter of the underlying infringement claims to the Magistrates’ Court. LW. did not seek revocation of the enforcement orders, which would have allowed it another opportunity to refer the matter to the Magistrates’ Court. Finally, LW. made no application for cancellation of the notices on the basis that it was unaware that infringement notices had been served.

5. The seizure of LW.'s vehicle was in strict accordance with the law established under the Act. That Act provides a just and orderly process for dealing with infringements and their enforcement. It is replete with mechanisms for review.

6. As the Act was not invalid for any reason, and that in any event it did not lack procedural fairness, there was no denial of procedural fairness by the magistrate flowing from application of the Act. As for the conduct of the hearing itself, LW. was accorded a fair hearing. The magistrate heard from Mr Field, took time to consider the written material and delivered a reasoned judgment after a short adjournment. There was nothing in the conduct of the proceeding that might have induced a fair-minded observer to think that the magistrate brought anything other than an impartial mind to it.

32 Sentencing – common assault charge – Use of Victim Impact Statement – appropriate sentenceIn York (A Pseudonym) v R MC 32/2014, Y. pleaded guilty to a charge of common assault. The judge allowed a Victim Impact Statement to be read to court which contained nothing of relevance to the charge. The defendant was sentenced to five months’ imprisonment wholly suspended.HELD: Appeal allowed. Sentence quashed. A fine of $1000 without conviction was imposed on Y.1. In sentencing, the judge was not required to have regard to the maximum penalty for the summary offence of assault pursuant to the Summary Offences Act 1966, s23.

2. The complainant was permitted to read her victim impact statement to the court. It was — as the prosecutor, defence lawyer and judge all acknowledged — almost exclusively concerned with the sexual offending against her by Y.'s husband.

3. The victim impact statement under consideration contained nothing of relevance concerning the impact of Y.'s offending. It was not legitimate for the judge to take it into account as providing background and setting a context. It was — and should have been seen to be — inadmissible in the case against Y. The judge should have so ruled. Further, the judge should not have permitted any part of it to have been read aloud. It was plain that the irrelevant and inadmissible victim impact statement infected the exercise of the judge’s sentencing discretion.

4. Y. pleaded to a single charge of common assault. It seemed that the assault arose out of the Y.'s attempt to discipline her daughter for lying to her, which exceeded appropriate bounds when Y. lost her temper. That loss of temper did justify Y.'s actions. But her conduct needed to be kept in some perspective. She was to be punished only for that single incident, and the punishment for that single incident needed to be proportionate to her criminal behaviour. To sentence her to imprisonment — albeit suspended — was a wholly disproportionate response to Y.'s wrongdoing. Before imposing a suspended sentence the judge needed to be satisfied that a sentence of imprisonment, if unsuspended, would have been appropriate for the offending. It would not have been. Intervention by the Appeal Court was thus called for. The appellant Y. had to be sentenced afresh.

5. Section 8(1) of the Sentencing Act 1991 requires that, in exercising the discretion whether or not to record a conviction, a court must have regard to all the circumstances of the case including the nature of the offence, the character and past history of the offender, and the impact of the recording of a conviction on the offender’s economic or social well-being or on his or her employment prospects.

6. Balancing those factors and the other factors to which the Court was required to have regard, it was appropriate that Y. avoid conviction.

33 Solicitor’s claim for fees for acting for a companyIn Prestige Lifting Services Pty Ltd v Wood MC 33/2014, a solicitor claimed fees for acting for a company when instructions to act for the company had only been given by one of its two active directors. A magistrate made an order on the claim. Upon appealHELD: Appeal allowed. Complaint dismissed. The counterclaim remitted to the Magistrates' Court for hearing and determination according to law.1. The first question of law to be decided by the magistrate was whether the company was party to the Costs Agreement of 9 December 2011 or, if the Magistrate acted on the basis of some contract other than that Costs Agreement, he was entitled to do so. The second question concerned the director, Mr Dale Williams, and whether be had authority to bind the company to the Costs Agreement or other retainer, whereby it retained W. as its solicitor.

2. The text of the Costs Agreement and the circumstances surrounding its making demonstrated that the company was not a party to it nor was it named as a client in it and the signing clause made no reference to it.

3. In a dispute between directors about the control of a company, a solicitor should not act for one of the warring parties whilst acting for the company itself. This was an important consideration to be taken into account in the objective determination of whether the company was a party to the Costs Agreement.

4. The purpose of the Costs Agreement was only to disclose the quantum of the lawyer’s fees and his charging rate. Those matters did not go to the question of whether a legal practitioner had been retained.

5. In order to rely on the Costs Agreement, W. needed to establish that, on its objective construction, the company was a party to it. The company was not a party to the Costs Agreement. It was not named as party to it and it was not signed by Mr Dale Williams on its behalf.

6. There was no retainer or written agreement as alleged by W. authorising him to act on behalf of the company PL. Accordingly, the Magistrate was in error in concluding that the actions taken by W. on behalf of the company on the instructions of Mr Dale Williams or his, or counsel’s, receipt of payments from the company instigated by Mr Dale Williams established that the company had retained W. as its solicitor.

7. There was no evidence, and it was not suggested, that Mr Dale Williams had actual authority, either express or implied, to retain W. on behalf of the company. There had been no resolution of the Board, giving him authority to do that. A director of a company with several directors usually has no actual authority nor apparent or ostensible authority to bind the company. The retaining of solicitors for a company is not a power or duty customarily exercised or performed by one director, especially when its directors are in dispute about the control or conduct of the company.

8. The magistrate made no findings about the causes of action contained in the counterclaim. Accordingly, the counterclaim required hearing and determination by the Magistrates' Court.

34 Order in the nature of prohibition made against MagistrateIn Grima v MacCallum & Wyndham City Council MC 34/2014, a magistrate in criminal proceedings warned the defence counsel about conduct and that costs were potentially an issue for the accused. When appeal proceedings were issued, the magistrate sent an email to the Prothonotary making a number of contentious assertions as to why the magistrate was not biased. HELD: Application for review granted. An order in the nature of prohibition made and the second defendant ordered to pay the costs of the application.1. As established by R v The Australian Broadcasting Tribunal; Ex parte Hardiman [1980] HCA 13; (1980) 144 CLR 13, 35-6; 29 ALR 289; (1980) 54 ALJR 314, the usual and proper practice for the court or tribunal to take in judicial review proceedings is not to participate as

a party but to abide by the decision of the court. There may be occasions when it is appropriate for the court or tribunal to provide factual or like information to the court. But it is generally not appropriate for the court or tribunal to ‘enter the fray’ and make contentious submissions as to the merits of the issues in the case, as her Honour did in the present case.

2. The foundation of this principle is that it is very difficult, and usually impossible, for the tribunal or court to participate in a judicial review proceeding without creating a reasonable apprehension of bias. In most cases, the only safe way of protecting the continuing jurisdiction of the court or tribunal is to abide by the outcome of the application. It is the responsibility of the party opposing the application to present evidence and make submissions as to the matters in issue, including evidence and submissions of the kind to which the magistrate referred in the forwarded email. Moreover, a forwarded email is hardly an appropriate way for a court or tribunal to present evidence or make submissions to the Supreme Court.

3. In the present case, both the sending of the message and its argumentative contents inevitably created a reasonable apprehension of apparent bias on the part of the magistrate.

4. In relation to the application for prohibition, a reasonable apprehension of apparent bias was created because the magistrate had placed undue pressure upon the accused to relation to the conduct of the defence case. There was nothing exceptional or unusual about the submissions of the accused in relation to the conduct of the defence. But the magistrate's conduct and in the language used meant that the apprehension of bias created went not just to the issue of costs at the end of the hearing but to the trial of the criminal proceeding generally.

35 Claim for damages made for alleged repudiation of employee’s employmentIn Ramus v Continence Foundation of Australia Limited MC 35/2014, the plaintiff claimed damages for the alleged repudiation of her employment. The magistrate dismissed the claimHELD: Appeal dismissed.1. In relation to the claim in respect of the magistrate's conduct, counsel for R. referred to numerous passages of the transcript of the Magistrates’ Court hearing in support of the argument that the magistrate’s interventions gave rise to a reasonable apprehension that he was biased in favour of the CFA, or that his Honour interrupted the flow of counsel’s questioning to an excessive degree to the disadvantage of R. It was submitted that there was an egregious departure from the judicial role as the magistrate’s questions were in the nature of cross-examination rather than for the purposes of clarification or assistance. Also cited were humorous responses as demonstrations of unwarranted light-heartedness.

2. Taken together, all the passages cited were said by R.'s counsel to create a real danger that the trial before the Magistrate was unfair. The earlier ones were said to be only minor interventions that added to an overall impression of unfairness. The later passages were, however, cited as indications that the Magistrate had closed his mind to further persuasion and had moved into counsel’s shoes and into the perils of self-persuasion. His interjections were said to have been detrimental to R.'s case, as he put propositions which favoured the CFA.

3. Counsel for R. acknowledged the effect of the Civil Procedure Act 2010 and increased judicial willingness in modern litigation to take greater control of proceedings. But submitted, nonetheless, that there was no indication that such considerations motivated the magistrate, given that the case went for five days before him.

4. Counsel for R. argued that the trial, seen as a whole, was unfair as a result of judicial questioning and should be set aside under the first principle in Galea that is, whether the excessive judicial questioning or pejorative comments created a real danger that the trial was unfair. Counsel contended that the magistrate had closed his mind to further persuasion.

5. There was no substance to the argument that the magistrate's involvement would have given rise to a perception of bias or constituted excessive interruption in the circumstances. The magistrate was courteous, polite and respectful. Notwithstanding the humorous comment referred to, the magistrate's interventions were not inappropriate, being generally for the purposes of clarification, obtaining more relevantly detailed evidence or giving the witness the opportunity to respond to his own concerns about inconsistencies and other matters. The transcript showed a consistent and even-handed approach throughout and the magistrate made rulings on objections and the like against and in favour of each party.

6. Accordingly, Ground 1 of the appeal was not made out.

7. The Magistrate concluded that R.'s title and core responsibilities as editor of the magazine remained and her role continued. Neither another person's limited involvement in the preparation of the summer edition of the magazine nor the proposed changes to the magazine showed that the CFA intended not to be bound by her employment contract and constituted a repudiation of it.

8. When R. failed to establish that her employment contract had been repudiated and or that she or her job had been made redundant on the basis of alleged facts which she failed to establish, her case failed as a result.

9. There was ample evidence before the magistrate on which he might as a reasonable person have been satisfied that R.'s employment contract had not been repudiated, and that her position had not been made redundant. Accordingly, the appeal was not made out.

36 Costs – relevant principlesIn Re Peninsula Kingswood Country Golf Club (No 2) MC 36/2014, the plaintiff succeeded on the main issue but the defendant succeeded on its defence of acquiescence and delay. As to the question of costs:HELD: No order as to costs of the proceeding including reserved costs.1. The relevant principles on awarding or allowing for costs on separate issues are set out in para 21 of the judgment.

2. Applying these principles (which were accepted by the defendant), the plaintiff succeeded on the main issue that took up most of the time of the hearing. The defendant, however, succeeded on its defence of laches, acquiescence and delay and thus the plaintiff’s claim was dismissed.

3. Taking into account the fact that the defendant succeeded in resisting the plaintiff’s claims but also taking into account that the bulk of the time in the proceeding was spent on the issue upon which the plaintiff succeeded, there was no order as to the costs of the proceeding including reserved costs.

37 Application for a Pseudonym OrderIn A S v Minister for Immigration and Border Protection MC 37/2014, the principles that apply in making a pseudonym order were considered.HELD: Application for a pseudonym order granted.1. The Open Courts Act 2013 ('Act') does not limit or otherwise affect a court’s power to order that the identity of a litigant be concealed by restricting the way a person is referred to in open court, or prohibiting or restricting access to the court file. The Act recognises that a pseudonym order differs from other restrictions on open justice, such as suppression orders and closed court orders.

2. The principles that apply in making pseudonym orders were succinctly distilled by Forrest J in ABC v D1 and Others; Ex Parte The Herald Sun & Weekly Times Limited [2007] VSC 480; MC 47/2007.

3. Having carefully considered the fundamental principle of open justice and the countervailing considerations put on behalf of the applicant that favoured the making of a pseudonym order, public disclosure of the proposed plaintiff's identity would prejudice the administration of justice.

4. Accepting that AS was in a highly vulnerable psychological condition and deterioration in her condition could have significant implications for her ongoing health, to the extent that this could be protected by a pseudonym order, AS was entitled to pursue a claim for damages without undertaking a significant risk that her health would substantially deteriorate. A pseudonym order would not preclude media reporting of the proposed proceeding and of the issues that it raised. The trial and the directions hearings would be conducted in open court and the extent of interference with the principles of open justice that was likely to be occasioned by this order was minimal.

5. Accordingly, the proper requirements of the administration of justice warranted the making of the order.

38 Intervention Order containing a firearms conditionIn Stephensen v Lebessis MC 38/2014, an Intervention Order had been made which included an order banning the defendant from possessing a firearm. Some months later, the whole of the Order was revoked. A magistrate made a declaration that the defendant was not a prohibited person under the Firearms Act 1966.

HELD: Appeal allowed. Magistrate lacked jurisdiction to make the declaration.1. As a consequence of the intervention order made, the defendant became ‘a prohibited person’ under paragraph (c)(ia) of the definition of that term in s3(1) of the Firearms Act 1996. That meant that he could not possess, carry or use a firearm. Section 5 of the Act creates the offence of a prohibited person possessing, carrying or using a firearm.

2. On 7 December 2012, the family violence intervention order and the firearms condition had been revoked as one. There was never a moment in time when the defendant was subject to a family violence order without a firearms condition and, therefore, he never was a person who could apply for a declaration under s189 of the Firearms Act 1996. Consequently, he remained a prohibited person under the Firearms Act 1996 until five years after 7 December 2012.

3. Paragraph (c) of the definition of ‘prohibited person’ in s3(1) of the Firearms Act 1996 creates two relevant categories of prohibited persons: those in paragraph (c)(i) and those in paragraph (c)(ia). Only those persons who come within paragraph (c)(i) can apply for a declaration under s189. The defendant was never a prohibited person within the definition in paragraph (c)(i), he was a prohibited person within paragraph (c)(ia).

4. If a person falls within the second category of prohibited person, which is defined in paragraph (c)(ia), and no appeal is brought to the County Court against the intervention order with a firearms condition, then the five year prohibition applies. The effect of the Family Violence Protection Act 2008 is that a person who is subject to an intervention order with a firearms condition is subject to an absolute prohibition from possessing firearms for five years from the time when they were last subject to that order. They therefore are unable to apply for a declaration that they are no longer a prohibited person until five years have expired since they were subject to such an order.

5. Accordingly, the defendant was not entitled to obtain the declaration made by the Magistrate.

39 Summary hearing of indictable chargesIn Williams v Hand & Anor MC 39/2014, a Magistrate decided that certain indictable offences against the accused should be dealt with summarily. The matters were adjourned and came on for hearing before another Magistrate who decided (without hearing any submission from the accused’s counsel) that the accused should be committed for trial. HELD: Appeal allowed. Order made by the second Magistrate in relation to the termination of the summary hearing quashed. Charges directed to be re-heard by a differently constituted Magistrates' Court.1. Section 28(1) of the Criminal Procedure Act 2009 ('Act') identifies indictable offences which may be heard and determined summarily by the Magistrates’ Court. The three charges under the Firearms Act preferred against W. were offences within the terms of s28 which could be heard and determined summarily by the Magistrates’ Court.

2. The question to be answered was whether the second magistrate had power to revoke the order made by the first magistrate and remand W. to appear at a committal hearing?

3. The Magistrates' Court constituted by the second magistrate did not have power to terminate W.'s summary hearing and remand him to appear at a later committal hearing. Once an order has been made by the Magistrates’ Court for an indictable offence to be heard summarily, it is not open for the court, constituted by a different magistrate, to purport to revoke that order. This conclusion is supported by the proper construction of s29 of the Act. It is also supported by consideration of the very real prospect of prejudice to an accused if a magistrate has power to terminate a summary hearing which had previously been ordered by the court. Trials of indictable offences, whether heard summarily or before a jury, are preceded by committal hearings. The practical effect of the order made by the second magistrate was that a trial of indictable offences preceded a committal hearing.

4. The potential for prejudice to an accused in circumstances where a magistrate terminates a summary hearing and remands an accused for a committal proceeding is not merely hypothetical. An accused in a summary trial of indictable offences may elect to give evidence, but might not wish to do so in a trial of the same offences before a jury. That an accused who has consented to have indictable offences heard summarily can be told, at any time prior to determination of his/her guilt or innocence, that he or she is to be remanded for a committal proceeding, has the potential to cause serious prejudice.

5. The notion that W., faced with the possibility of imprisonment of up to five years, could

have a summary hearing of those charges terminated mid-stream and be remanded to a committal proceeding, did not strike a balance between the power of the State to prosecute and the position of an individual who stands accused. To the contrary, it had the potential to facilitate a serious imbalance between the position of, on the one hand, the State, and, on the other, the accused. In the absence of clearly expressed statutory provision or words of necessary intendment, s29 and s30 of the Act does not confer upon a magistrate the power to terminate a summary hearing in circumstances where an order had previously been made that indictable offences be heard and determined summarily.

6. There is no provision in the Act which confers a power to convert a summary hearing into a committal hearing or which regulates the admissibility of evidence given in the summary hearing in any subsequent committal hearing. On the other hand, there is an express power to convert a committal hearing into a summary hearing, subject to the consent of the accused and with express provision governing the admissibility of any evidence given during the committal hearing in any subsequent summary hearing.

7. Although W. was the subject of indictable offences, once an offer was made for those offences to be heard and determined summarily, and he accepted that offer, he could properly be regarded as having invoked the jurisdiction of the Magistrates’ Court to have the offences heard and determined summarily.

8. Section s29(2)(b) of the Act expressly requires the Magistrates’ Court to have regard to the accused’s criminal record when considering the adequacy of sentencing options available to the court, and precludes the court from having regard to the adequacy of sentencing options as a standalone matter governed by s29(2)(d).

9. The magistrate’s failure to have regard to W.'s criminal record when considering whether a summary hearing was inappropriate by reason of the adequacy of the sentencing options available was a jurisdictional error.

10. The refusal by the second magistrate to stand the proceedings down constituted a denial of procedural fairness because it denied W. an opportunity to present submissions in opposition to the termination of the summary hearing. Not only was W. denied the opportunity to present his case, the magistrate expressly stated that there was ‘no point’ in the matter being stood down because ‘this court must divest itself of your client, I’m afraid. There are no further opportunities, given what I have said to resolve the matter.’ The magistrate could not have been more explicit in making plain that he was not interested in hearing any submissions on whether the summary hearing should be terminated.

11. The fact that the second magistrate was, in effect, considering whether the court had jurisdiction to hear and determine the charges summarily, did not relieve him of the obligation to afford W. procedural fairness. To the contrary, a decision that the court did not have jurisdiction to hear and determine the charges summarily would have had significant consequences for W. The decision to terminate the summary hearing affected the rights and interests of W. in a direct and immediate way.

12. The second magistrate's order terminating the summary hearing was quashed on the grounds of jurisdictional error constituted by a failure to accord W. procedural fairness.

40 Civil proceedings re claim to possession of a motor vehicleIn Paul & Paul Pty Ltd v Shacklock & Anor MC 40/2014, a loan was advanced under a Deed of Acknowledgement and a later loan agreement created between related parties. As the loan was not repaid as agreed, a claim was upheld by a Magistrate and for an order made for judicial sale of the vehicle. HELD: Appeal dismissed.1. Even if the loan was intended to be short term, it did not logically follow that the Acknowledgement Debt form ceased to have effect at any particular time, or at all, while the loan remained unpaid. There was no evidence to support a finding that liability under the Acknowledgement was intended to be extinguished in the event the loan ceased to be short term, or as a consequence of the Loan Agreement either having, or not having, legal effect. The finding that the loan agreement was ‘poorly thought out’ and of ‘no legal effect’ did not mean that the Acknowledgement had been voided or abandoned.

2. Although the charging clause (clause 1) did not itself specify the debt which was to be secured, the debt of $50,000 plus interest was acknowledged in the document. The proper question was whether it was open to the magistrate to find that the charge was enforceable by reading the Acknowledgement as a whole to identify the secured debt, or whether the charging clause itself was required to specify that debt.

3. A charging clause does not need any specific verbal formula and reference may be had to the instrument as a whole to determine whether the creation of a charge was intended.

4. A reasonable businessperson would have understood that the words ‘I hereby charge all my interest’ in clause 1 of the Acknowledgement were intended to charge the motor vehicle with the debt referred to in the other paragraphs of the document, namely, the debt of $50,000, plus interest. This was the only debt referred to in the agreement, and it was obvious that the charge was intended to secure the repayment obligation. The appellants’ construction that the charging clause did not refer to any particular debt at all was absurd, ignoring the proper assumption that the parties intended by this document to produce a commercial result. There was no error by the magistrate in preferring a construction that avoided a capricious, unreasonable, and uncommercial consequence.

5. An equitable charge does not give rise to a right to immediate possession of the charged property; the proper remedy is judicial sale or the appointment of a receiver. Under the general law, a charge can be enforced only by application to a court for an order for the sale of the charged property, not by the chargee taking unilateral action out of court.

6. A judicial sale of the motor vehicle was lawfully ordered, and the prospect of error arising from any possible misapprehension about the proper relief to be granted in enforcing an equitable charge never came to pass. The magistrate quite properly made interlocutory preservation orders and heard further submissions from the parties on final relief. An order for judicial sale out of court would have been ineffectual without the capacity for the selling party, S., to give both possession of and a registration transfer for the vehicle to a purchaser. The magistrate adequately revealed by his reasons for judgment and orders, beyond the appellants’ consent or non-opposition, the path of his reasoning for adopting this course.

41 Sentencing on multiple charges: no CCO and suspended sentence to be imposedIn Anthony v Magistrates’ Court & Anor MC 41/2014, multiple charges against an accused were dealt with by a magistrate. In relation to most of the charges a Community Corrections Order was made and in relation to the other charges a wholly suspended sentence of imprisonment.HELD: Appeal upheld. Sentences quashed. Remitted to the magistrate for resentencing. [See DPP v Chhatre [2014] VSCA 280]1. The community corrections order made by the magistrate in relation to three of the informants was contrary to s44(1)(a) of the Sentencing Act 1991. It was contrary to the provisions of that subsection to make that order because, in the one hearing and on the same day (ie the same ‘occasion’) the magistrate imposed a wholly suspended sentence of imprisonment in relation to the fourth informant's charges.

2. Under the totality principle, the overall sentence imposed in relation to numerous charges must be a just sentence. Therefore, the justice of the sentences to be imposed in respect of each of the four sets of charges brought against A. was inextricably connected. In particular, the justice of the sentences to be imposed in respect of the fourth informant was inextricably connected with the sentences to be imposed in respect of the other three informants. While it was for the magistrate to determine quite how the totality principle fell to be applied in the circumstances of the cases before him, application of the principle was mandatory.

3. The magistrate had four sets of charges before him, all inextricably connected for sentencing purposes. A fundamental error of law was made in relation to the sentence imposed in respect of three sets of the charges. That error necessarily vitiated the sentences imposed in respect of the remaining set.

4. Accordingly, the sentences imposed on A. were quashed and remitted to the magistrate for sentencing according to law.

42 Bill posting – consent of owner required as a defenceIn Magee v Wallace MC 42/2014, the accused was charged with covering up an advertising board in his opposition to commercial advertising. At the hearing he was unable to establish that he had consent from the owner of the billboard. The Magistrate found the charge proved. Upon appeal-HELD: Appeal dismissed.1. The only relevant defence to a charge under s10 of the Summary Offences Act 1966 ('Act') is proof by a defendant that he posted a bill on property with the consent of the property owner. There was no evidence that M. posted the bill over the advertisement displayed at Southern Cross railway station with the consent of either the owner of the

advertisement or the owner or lawful controller of the railway station. The rights recognised by the Charter did not confer that consent.

2. The Magistrate correctly decided that the elements of the offence with which M. was charged were proved and M. did not establish the defence of consent. Nothing contained in M.'s submissions created any uncertainty about the plain meaning of s10 of the Act.

3. The only remaining issue arose from M.’s application made during the hearing of the appeal for a declaration of inconsistent interpretation.

4. The right of freedom of expression contained in s15 of the Charter does not extend to M.'s actions in posting bills or posters to obscure advertisements lawfully placed by other persons or businesses pursuant to some contractual arrangement and placing his own statement instead of the original advertisement.

5. Section 10(1) of the Summary Offences Act, insofar as it applies to M.'s actions that resulted in his conviction, contains lawful restrictions reasonably necessary for the protection of public order, in accordance with s15(3)(b) of the Charter. That provision recognises special duties and responsibilities attached to freedom of expression. M.'s actions concerned a commercial advertisement that was displayed in a space open to members of the public. His actions sought to prevent that advertisement being displayed. Such conduct is capable of interfering with the maintenance of public order. The capacity of individuals or businesses to obtain access to property to advertise their products or services is a feature of Australian society. M.'s actions, or similar actions taken in a public place which interfere with advertisements lawfully posted, have the capacity to interfere with public order. It is certainly possible that actions of the type that M. engaged in might lead to some form of public disturbance involving persons seeking to stop those actions. It is not appropriate to attempt a complete definition of public order. It is a wide term.

6. The limits that s10 of the Summary Offences Act imposed on M.'s freedom of expression in this case were reasonable limits that could be demonstrably justified in a free and democratic society based on ‘human dignity, equality and freedom’ taking into account all relevant factors including those contained in s7(2)(a) to (e) of the Charter. The limitation on M.'s human right of freedom of expression that resulted from the operation of s10 of the Summary Offences Act in this instance was for the important reason of preserving public order, was limited to interference with a lawfully displayed advertisement and was connected with preventing that interference. There was no less restrictive means reasonably available to achieve the purpose of the limitation. That was because the limitation in this case was directed at preventing interference with a contractual right to display advertisements in places open to the public, which interference could disrupt public order.

7. The Magistrate concluded that damage was not required for there to be ‘a limitation on the expressive conduct’. In the context of the reasons read as a whole, his Honour was referring to a restriction on the right of freedom of expression permitted by s15. His Honour considered that for the purposes of the application of s15, an interference with property by the conduct that M. took could be equated with damage. His Honour considered that property owners or those who have a lawful right to use property have the right to enjoy the property without interference, whether by damage or otherwise. In human rights cases, it is generally important to consider the facts presented in particular cases and that it is generally appropriate to confine conclusions about the exercise of human rights to the facts of the case. That is what the Magistrate intended to do in his statement of reasons and his reference to threat of damage involved no error.

43 Bail – accused required to show exceptional circumstances.In Nguyen v DPP MC 43/2014, the accused was charged with drug offences and trafficking in cannabis and was required to show exceptional circumstances for release on bail. HELD: Application for bail refused.1. The question was whether N. established that exceptional circumstances existed that justified the grant of bail. Whilst it was open to N. to submit that exceptional circumstances were established, the primary requirement that exceptional circumstances exist, where the onus was on N., was not to be lost in the mass of factors that might go to the question of unacceptable risk, where the onus rested on the Crown.

2. What is ultimately of significance is that viewed as a whole, the circumstances can be regarded as exceptional to the extent that, taking into account the very serious nature of the charge to which they are applicable, the making of an order admitting the person to bail would be justified.

R v Moloney, unrep, Sup Ct, Vincent J, 31 October 1990, followed.

3. The most significant matter that distinguished this case from others on the question of exceptional circumstances that would justify bail was the strength of the Crown case. Here, a commercial quantity of prohibited drugs was found clearly in the possession of N. There was even evidence that he directed the police to the part of his vehicle where it would be found by saying, ‘there is weed in the back’, after the police had detected it by smell. It would be difficult to imagine a stronger Crown case on the principal offence in respect of which N. sought bail. In none of the exceptional circumstances cases referred to by counsel was the Crown case anywhere near as strong as it seemed to be in this case.

4. Whilst the possible delay in this matter was regrettable and N. was able to put forward a number of matters that might, in another case, have established exceptional circumstances, such circumstances did not exist in this case.

5. Accordingly, the application for bail was refused.44 Bail – accused required to show exceptional circumstances.

In Re Gregory Rodin MC 44/2014, the accused was charged with trafficking in commercial quantities of drugs and was required to show exceptional circumstances for release on bail.HELD: Application for bail granted with conditions.1. In considering each of the factors advanced by R. in respect of the claimed exceptional circumstances, the most prominent factor raised was that of delay. Trial division judges of the Supreme Court have held on numerous occasions that unreasonable or inordinate delay, whether operating on its own or with other factors, can constitute ‘exceptional circumstances’.

2. Unless released on bail, R. would be held in custody pending trial for at least 2 years, possibly more. That prospect raised for serious consideration the question whether exceptional circumstances existed to justify releasing R. on bail, constituted either by delay alone or in combination with his personal situation. It also raised for serious consideration the question whether, if exceptional circumstances existed, the period of delay was of such a magnitude that the risk he posed of reoffending or to the community, which would otherwise be regarded as unacceptable, should properly be viewed as acceptable.

3. The serious nature of the offending alleged, the relative strength of the Crown case, R.'s very poor criminal history, and his drug-dependence which appeared to be the mainspring for his offending, made him, on the face of it, an unacceptable risk of both reoffending and to the safety and welfare of the community. Against that, the inordinate time he had to spend in prison awaiting trial had to be carefully weighed: is the risk to the community of R. being at large, subject to strict bail conditions, acceptable when compared to the alternative, being that a presumed innocent person who was not regarded as a flight-risk was kept in prison for two years or more?

4. Weighing all these matters, and with some degree of reservation, it was concluded that R. should be granted bail with conditions which would bring the risk to the community within an acceptable band, particularly in the face of the alternative that R. would be kept in prison, unconvicted, for an unacceptable period of time.