Tag Archives: practice

Supreme Court tuts Proactive Magistrate

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The ACT Supreme Court has warned Magistrates not to undertake their own investigations when deciding applications before the Court.

In Le Clair v Childs [2015] ACTSC 118 the Defendant was before Court, listed for hearing, after months of adjournments and having been set down for hearing a number of times previously.

The Defendant was brought up from the holding cells and was somewhat perplexed that his Legal Aid solicitor had not appeared to run his ABH assault charge. The Defendant claimed he had in fact been granted aid for the hearing but had refused to Legal Aid solicitor assigned to him on the basis that she had previously advised to to plead guilty to a different charge but that another was assigned to him.

The Magistrate, seemingly unhappy with the veracity of these claims, stood the matter down and apparently contacted a Legal Aid solicitor or the office who confirmed that they had granted aid but could not provide a different solicitor. The Defendant ran his own case and was subsequently found guilty.

On appeal, Justice Burns was seemingly not impressed with the investigations, whatever they revealed and having found that an oral application for an adjournment was on foot, warned the Court not to rely on anything that was not directly before it when deciding the application.

7. I want to make it clear that I do not suggest that magistrates are required to grant an adjournment every time such an adjournment is sought by an unrepresented accused in proceedings in that Court. Much will depend upon the circumstances of the case. However, what I want to make clear is that, in exercising the discretion whether to grant an adjournment, a magistrate is expected to act judicially and to abide by the rules of natural justice and also procedural fairness.

This is a tough one, there is no doubting the importance of the right of the parties to challenge anything the judicial officer seeks to rely on. But that being said, the ACT Magistrates generally have a hard go of it. They are the most expert Magistrates in the country and their jurisdiction is closer to a District Court or the old Federal Magistrates, on top of their local court style jurisdiction. They currently have the biggest backlog in the Territory and despite the constant repetitions of the Supreme Court about the need for quick, inexpensive justice in the Magistrates Court, they are increasingly under a caseload burden. When a Defendant is before the Courts, having been listed for hearing several times, applies for aid, is granted aid, fires aid and asks for another adjournment….it’s not too much a stretch to believe that about 3/4 of the Magistrates would have done the same thing.
Broad message? Remember to get anything you need to rely on into evidence.

Defaults are Expensive, Emails are Free

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In an application for setting aside a default judgment, Master Mossop, considered an expanded test including what notice the Plaintiff notify the Defendant before filing for default judgment. Stormer Building Group v Johnson [2014] ACTSC 23 considered the implications of a hastily filed default application in instances where no correspondence had been received from the Defendant.

r1128 creates a general discretion for the setting aside and the Court generally follows Evans v Bartlam [1937] AC 473 at 480 which confirms that the discretion is unfettered. The Master continued to set out the usual test:

In Ryan v Adams (1993) 112 FLR 474 at 476, Miles CJ said of the relevant principles that, “As far as this Court is concerned, the most authoritative pronouncements are those in the Federal Court in Davies v Pagett (1986) 10 FCR 226.”
11. In that case, the Court noted that the trial judge had set out a summary of the principles from Lord Wright’s speech in Evans v Bartlam, and then adopted the trial judge’s summary of the relevant considerations as follows:
1. The length of the delay between the time for delivery of defence and the date of interlocutory judgment. On this aspect, the giving of notice of intention to apply for judgment may be a relevant factor.
2. The length of delay between the entering of such judgment and the application to set it aside.
3. The reasons for such delay. The defendant’s own contribution to the delay, as contrasted with the delay caused by his legal advisers, may fall for consideration.
4. The evidence as to whether or not the defendant may have a defence? The probability of a successful defence need not be demonstrated, and the fact that a defendant’s case may appear weak, will seldom be a bar.
5. Whether the plaintiff will be prejudiced by setting the aside the judgment, the nature of the prejudice being such that it cannot adequately be compensated by an order for costs.

Refshauge J in part of the Ezekial-Hart v Law Society saga tacked on the judgment of Wallace J in Pope v Aberdeen Transport Co Pty Ltd [1965] NSWR 1550 at 1551 where his Honour said:

I think that where the party signing judgment does so without giving warning of its intention to do so, such party will generally, though perhaps not invariably, be in difficulties on a summons to set aside the judgment where a defence on the merits is disclosed.

Long story short, this additional test has the effect of adding the impetus to the party seeking the apply for default to warn the other side before applying, especially when the application is made so soon to the expiry date for filing. The filling of a defence is not the same as the disclosure required by Ezekial-Hart. In these circumstances, where knowledge of a defence can be constructed, practitioners will have a harder time of explaining why no contact was made.

From a policy point of view, default judgments are relatively simple to have overturned. Hence a hastily applied for default creates more time and expense to the parties and the court as opposed to a simple email or even just allowing a bit of time to pass.

Despite the eagerness of the Plaintiff, there was still a delay on the part of the Defendant in filing to set aside the judgment, and for this the Plaintiff was awarded costs with a pretty accelerated timetable for the Defendant to file their defence, evidence etc.

Failing to communicate intended actions is also possibly a breach of solicitors rules, but in the case of Stormer it was definitely short of this, and frankly 99% of the time it will be too. That being said, it is difficult not to froth at the mouth when the time for filing passes, but do try to resist the temptation, and send a quick email clearly setting out the intended action and possible consequences, particularly when involved with a self-rep.

Possible High Court showdown over Barbaro

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A full bench Federal Court has set the stage for a showdown over whether regulatory or disciplinary bodies can submit on the appropriateness of a particular sentence.

In Barbaro v The Queen [2014] HCA 2 the Court reached the view that in criminal proceedings the prosecution should not nominate the specific sentencing result or the range within which it should fall.

Whilst binding on criminal proceedings, it was a point of contention whether this applied to quasi-criminal proceedings such as disciplinary or administrative matters. Director, Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2015] FCAFC 59, or as the much less clunky “the CFMEU case” found that many matters are often mistakenly classified as “civil”, because it is apparent they are not “criminal”.

The Court found that in reality, civil should be viewed as proceedings between private parties and any matters involving the state were bound by similar procedural rules. Citing Legal Services Commissioner v Nomikos [2014] VCAT 305 with approval:

‘Pecuniary penalties are sought by the State against its citizens, acting in and on behalf of the public interest (rather than as a litigant in its own interests). In investigating conduct that can result in a pecuniary penalty, State enforcement bodies are armed with intrusive investigative powers to identify and establish breach.  For the enforcement bodies in question, those powers are the same as, or may in some ways be more profound than, the powers they use in criminal investigations.

The various deals that are often struck between defendants and disciplinary bodies such as ASIC, ATO, AFMA, Legal Services Commissioner etc. are in fact a matter for the Court and it is inappropriate for a state body to comment on the appropriate penalty.

There are converse public policy considerations that point to the benefit of regulatory bodies being able to save time and money by facilitating cheap pleas of guilty, with a real benefit for the defendant, but the obvious flip side is that the Legislature have in fact already accounted for discounts for early pleas and other such items.

In a trifecta for Victoria, CFMEU relies on the Barbaro HC decision in contradiction of Matthew’s v R [2014] VSCA 291 in relation to non-criminal submissions.

It appears inevitable that the decision will go to the High Court and regulators and disciplinarians should be well aware of the possible implications.