Russell v Scott & Anor

1. [1]

   On 8 January 2017, Andrew Russell (“the plaintiff”) was charged with an offence of indecent assault contrary to s 61L of the Crimes Act 1900 (NSW). The police informant in relation to his prosecution is Detective Senior Constable Amy Scott (“the first defendant”). The complainant is a young woman from Sweden who was in Australia in January 2017 on a working holiday. She will be referred to in this judgment as VT. She has since returned to Sweden. In addition to her evidence, the prosecution proposes to call two witnesses to the alleged assault. One of these witnesses is another resident of Sweden who has also returned home. Her name is Johanna Kall.

2. [2]

   On 1 June 2017, the first defendant made written application pursuant to s 5B of the Evidence (Audio and Audio-Visual Links) Act 1998 (NSW) (“the AVL Act”) on behalf of the prosecution that VT give her evidence from Sweden by way of audio-visual link (“AVL”). On 8 June 2017, a similar application was made in relation to Ms Kall. The first defendant opposed the applications.

3. [3]

   On 22 June 2017, Deputy Chief Magistrate Mottley granted both of the applications and provided her written reasons. Her Honour’s decisions were made in Chambers.

4. [4]

   By second further amended summons filed on 27 November 2017, the plaintiff seeks leave to appeal against her Honour’s interlocutory decision under s 53(3)(b) of the Crimes (Appeal and Review) Act 2001 (NSW) (“the CAR Act”). In the alternative, the plaintiff seeks judicial review of the decision, invoking this court’s supervisory jurisdiction as regulated by s 69 of the Supreme Court Act 1970 (NSW).

5. [5]

   The second defendant has filed a submitting appearance.

Background

1. [6]

   The plaintiff relied upon an affidavit of the plaintiff’s solicitor sworn 7 July 2017 annexing the Court Attendance Notice (“CAN”), police facts sheet, the police statements of VT and Ms Kall, copies of the two applications made under s 5B of the AVL Act, the plaintiff’s submissions in the Local Court, and the reasons of the Deputy Chief Magistrate. Only the CAN, the applications and submissions were before her Honour. Despite this, it was submitted that I could have regard to the other documents either in assessing what is effectively a “no evidence” ground or in determining whether jurisdictional error was established. The following background is taken from those documents.

2. [7]

   The plaintiff has entered a plea of not guilty to the charge contrary to s 61L of the Crimes Act. The matter was initially set down for a three-day hearing before a magistrate commencing on 24 July 2017. At a mention of the matter on 31 May 2017, the prospect of witnesses giving their evidence by way of AVL was raised. The plaintiff’s solicitor asked the presiding Magistrate, Mr O’Brien, to consider listing any AVL application for a hearing in court, but his Honour refused to do so. The matter was then listed for a “readiness hearing” on 3 July 2017. The prosecution subsequently made two applications under the AVL Act on 1 and 8 June 2017.

3. [8]

   The first application dated 1 June 2017 pertained to VT. The application form, which appears to be a pro forma document, is headed “Application for Witness to Give Evidence via Audio Visual Link Facilities”. Under that heading there is a sub-heading that reads “Evidence (Audio and Audio-Visual Links) Act 1998”. The application is then in the following terms:

4. [9]

   The second application dated 8 June 2017 was made in relation to the witness Ms Kall. It is in similar terms. The main difference is that under the heading “Other” the following appears:

5. [10]

   The account is otherwise in identical terms to the previous application.

6. [11]

   The applications were made under s 5B of the AVL Act, which relevantly provides:

7. [12]

   The solicitor for the first defendant provided detailed written submissions opposing the application in which it was submitted, inter alia, that the Deputy Chief Magistrate could not be satisfied on the material in the applications of the matters in ss 5B(2)(a) (b) or (c) of the AVL Act and thus that the orders could not be made. It is to be noted that there was no request in the submissions for the application to be considered in court, rather than in Chambers.

8. [13]

   It was submitted on behalf of the plaintiff that the matters in ss 5B(2)(a), (b) and (c) were present such that the Magistrate could not make the order. No complaint was made regarding any inadequacy of evidence regarding s 5B(2)(d).

9. [14]

   It was submitted in relation to s 5B(2)(a) (whether necessary facilities available), that there was no evidence provided that the “necessary facilities” are available in Sweden. The plaintiff referred to the facts that Sweden is eight hours behind Australian EST, that a higher standard of AVL than “Skype” or “Facetime” would be required, and that there would be a need for the witness to be “supervised” by a court officer. The plaintiff relied upon the observations of Austin J in ASIC v Rich [2004] NSWSC 467 at [19] in relation to the practical difficulties that may be involved in the use of AVL. It was submitted that it cannot be assumed that the facilities would be available if the application were granted; that fact must be established at the date of the application. It was submitted that there was no evidence as to the compatibility of the AVL system in Sweden with that in the Downing Centre. Nor was there any evidence that a court officer would be available.

10. [15]

    As for s 5B(2)(b) (convenience), it was submitted that the prosecution had not provided an explanation as to why the witnesses could not travel to Australia to give evidence. In relation to relative convenience, the submissions relied upon the decisions of Australian Medical Imaging Pty Ltd v Marconi Medical Systems Australia Pty Ltd [2001] NSWSC 651 and R v Wilkie; R v Burroughs; R v Mainprize [2005] NSWSC 794 at [48]. It was submitted that no reasons, “good or otherwise”, had been provided as to why in-person evidence was not available.

11. [16]

    In relation to s 5B(2)(c) (unfairness), it was submitted that these were witnesses whose credibility was crucial and that their cross-examination could be lengthy. The logistical difficulties involved in cross-examining witnesses on statements, photographs, CCTV footage and other matters were identified. The plaintiff noted that it was uncertain whether copies of these documents would be in Sweden with the witnesses.

12. [17]

    On 23 June 2017, the Deputy Chief Magistrate published reasons for granting the applications and faxed a copy of her reasons to the parties. Those reasons set out, inter alia, why her Honour was satisfied that none of the four matters listed in ss 5B(2)(a) (b) (c) or (d) of the AVL Act existed such as would preclude the making of the orders.

The reasons of the Deputy Chief Magistrate

1. [18]

   Her Honour noted at [5]-[7] of her reasons:

2. [19]

   Her Honour went on to consider ss 5B(2)(a), (b), (c) and (d) of the AVL Act in turn.

3. [20]

   As for ss 5B(2)(a), her Honour was not satisfied that the necessary facilities were not available or could not reasonably be made available. She noted the plaintiff’s complaint that the first defendant’s assertion that the facilities are available in Sweden was “unsubstantiated” and observed that there was “no cogent basis advanced by the Defendant that would lead the court to doubt the veracity of that contention.” Her Honour went on to note that, given the different time zone, the witnesses would be required to give their evidence outside normal business hours in Sweden. She further noted that the necessary facilities need only be available (that is, able to be used) and that “…the court could not be satisfied that they were not.” Her Honour also referred to the decision of Austin J in ASIC v Rich [2004] NSWSC 467. She noted the discretionary nature of any decision made under s 5B and that each matter will depend on the particular circumstances of the case. She further noted that, as Austin J had observed in that decision, it is necessary to have regard to the appropriateness of AVL for important evidence, the assessment of credit via AVL, difficulties regarding the use of documents during cross-examination, technology difficulties, time-lapse issues and difficulties where cross examination is likely to be lengthy.

4. [21]

   Her Honour distinguished the facts in ASIC v Rich from those of the present case. That was a long-running piece of commercial litigation, while the present matter will be a three-day summary hearing. Her Honour then noted:

5. [22]

   Turning to s 5B(2)(b) of the AVL Act, her Honour considered the question of convenience taking into account the interests of the community, the witnesses, the defendant (who is the plaintiff in these proceedings) and the court. Her Honour noted that the convenience of the defendant would be met if the application were refused and then stated:

6. [23]

   Her Honour concluded that she could not be satisfied that the evidence of the two witnesses could more conveniently be given in the courtroom rather than by AVL.

7. [24]

   Her Honour then went on to consider s 5B(2)(c) of the AVL Act, and noted the submission made on behalf of the defendant that it would be “grossly unfair” to him for the evidence to be given by way of AVL because the evidence is important and issues of credibility crucial. Her Honour noted that the case would be decided by a magistrate who is a “…professional factfinder/judicial officer who will discharge their function fairly and impartially.” Her Honour went on to note:

8. [25]

   Finally, her Honour noted that the witnesses are willing to give their evidence by way of AVL.

Relevant legislation

1. [26]

   Section 53(3) of the CAR Act relevantly provides:

2. [27]

   Section 69 of the Supreme Court Act relevantly provides:

3. [28]

   Section 5F(3) of the Criminal Appeal Act 1912 (NSW) provides that:

4. [29]

   In addition to s 5B of the AVL Act extracted above at [11], some of the provisions in Part 4 of that Act are relevant in this matter.

5. [30]

   Section 20A of the AVL Act provides:

6. [31]

   Section 20E of the AVL Act provides:

7. [32]

   Section 20F of the AVL Act provides:

8. [33]

   Section 294B of the Criminal Procedure Act 1986 (NSW) relevantly provides:

9. [34]

   An offence contrary to s 61L of the Crimes Act is a prescribed sexual offence for the purpose of s 249B: s 3 of the Criminal Procedure Act.

10. [35]

    Section 26 of the Local Court Act 2007 (NSW) relevantly provides:

11. [36]

    Section 28(1) of the Local Court Act provides:

12. [37]

    Section 71(1) of the Local Court Act provides that rules may be made for “application proceedings”. That section is found in Part 4 of the Local Court Act. Section 44 of that Act provides that Part 4 applies to any proceedings with respect to matters for which jurisdiction is conferred on the Court by or under any other Act or law, other than criminal proceedings and proceedings in respect of which jurisdiction is conferred on the Court by Part 3. Although s 71(1)(f) provides that rules may be made dispensing with the rules of evidence in certain circumstances, no such rule is expressly to be found in Rule 8.3 of the Local Court Rules 2009 (NSW), which deals with applications in criminal matters.

13. [38]

    Rule 8.3 of the Local Court Rules provides:

These proceedings

1. [39]

   The plaintiff moved on a second further amended summons filed on 27 November 2017. The substantive appeal grounds under s 53(3)(b) of the CAR Act are that:

   1. (1)

      Ground 1: Her Honour erred in granting the subject application in the absence of any evidence or supporting information in relation to the bare assertions made by the applicant police officer in each of the applications that:

   2. (2)

      Ground 2: Her Honour erred in determining, as a matter of principle, that the subject application satisfied the statutory preconditions contained in section 5B of the AVL Act necessary for the Court to have jurisdiction to make an order for the giving of evidence by AVL under that section

   3. (3)

      Ground 3: Her Honour erred in determining the subject applications by failing to consider s 20A of the AVL Act. In particular, her Honour failed to consider that if AVL evidence is to be given, the (undisclosed) proposed witness location must be equipped with AVL facilities that would enable (i) persons who are at the courtroom to see and hear the person giving the evidence (s 20A(a)) and (ii) the witness at the (undisclosed) proposed witness location to see and hear persons in the courtroom (s20A(b)).

2. [40]

   In the alternative, the plaintiff invoked this Court’s supervisory jurisdiction to challenge the Magistrate’s decision. An order in the nature of certiorari quashing the decision was sought on the following two grounds:

   1. (1)

      Ground 1: Her Honour constructively failed to exercise the jurisdiction conferred by the AVL Act, chapter 4 of the Criminal Procedure Act 1 and s 9(c) of the Local Court Act in that her Honour, in summary criminal proceedings, purported to make a determination under s 5B of the AVL Act in the absence of actual evidence and sufficient supporting information that would permit, as a matter of law, the proper making of such a determination.

   2. (2)

      Ground 2: Her Honour constructively failed to exercise jurisdiction as a result of the combined effect of the errors of law identified in appeal grounds 2 and 3, as pleaded above in relation to a statutory appeal.

3. [41]

   I would only turn to consider whether this Court would exercise its supervisory jurisdiction in this matter if I were not satisfied that the plaintiff had a statutory appeal available to him.

4. [42]

   A preliminary issue arose as to whether the decision of the Deputy Chief Magistrate was an “interlocutory order” within the meaning of s 53(3)(b) of the CAR Act.

The plaintiff’s submissions in relation to competence of the appeal

1. [43]

   Counsel for the plaintiff, Mr Randle, acknowledged at the outset that he faced a considerable hurdle in establishing that the decision of the learned Magistrate is “an interlocutory order” for the purposes of s 53(3)(b) of the CAR Act.

2. [44]

   He accepted that if this Court were to adopt an analogous interpretation of s 53(3)(b) of the CAR Act to that adopted by the Court of Criminal Appeal (“CCA”) interpreting the phrase “interlocutory judgement or order” in s 5F(3) of the Criminal Appeal Act, then the plaintiff may face difficulties establishing the competence of the appeal. Those decisions include AF v R [2015] NSWCCA 35 and KN v R [2017] NSWCCA 249.

3. [45]

   Mr Randle submitted that I would not be bound to follow those decisions as they pertain to a different statutory provision in a different statute. It was noted that his research had not disclosed any authority for the proposition that I was required to find that the respective provisions were analogous. Further, he submitted that there are textual reasons for concluding otherwise.

4. [46]

   It was submitted that the CCA cases as to s 5F(3) of the Criminal Appeal Act should not inform the proper construction of s 53(3) of the CAR Act primarily because there are the different appeal rights under the respective Acts. It was submitted that Part 3 of CAR Act confers a right to appeal from the Local Court to the District Court and have a de novo hearing, albeit generally on the transcript. It was submitted that this is no mere semantic distinction between the rights of appeal and review conferred by the Criminal Appeal Act and those conferred by the CAR Act, the latter of which discloses an intention that the decisions of magistrates be open to scrutiny generally. Thus, it was submitted, there is a legislative intention that the scope and operation of the two provisions in the Criminal Appeal Act and the CAR Act be interpreted differently.

5. [47]

   Mr Randle noted the observations of the former Chief Justice in the Court of Appeal decision in Salter v Director of Public Prosecutions (NSW) (2009) 75 NSWLR 392; [2009] NSWCA 357 and submitted that the decision of the learned Magistrate is an “order” because it has a degree of finality to it. It was submitted that the decision that the witnesses give their evidence by way of AVL affects an important and fundamental aspect of the resolution of the substantive criminal proceedings in that it permits the prosecution to run its case without witnesses giving their evidence viva voce in court.

6. [48]

   The plaintiff placed reliance on the observations of Hamill J in R v Qaumi and Ors (No 9) [2016] NSWSC 171 at [9] regarding difficulties for a jury assessing the demeanour and credibility of witnesses giving their evidence by way of AVL. He also relied on the decision of Bellew J in Emily Salisbury v Local Court of New South Wales and anor [2016] NSWSC 1082, in which the error on the part of the Magistrate was to require a defendant in criminal proceedings to serve expert evidence prior to the hearing of her matter. Mr Randle accepted that the issue that fell for determination in that matter had a different quality, but nonetheless relied upon the broad construction that his Honour gave to s 53(3)(b) of the CAR Act.

7. [49]

   Mr Randle did not accept that the decision of the Magistrate in this matter was analogous to a ruling about the admissibility of evidence, but accepted that it had features in common with such a ruling.

The first defendant’s submissions in relation to competence of the appeal

1. [50]

   Mr Cahill of counsel appeared on behalf of the first defendant. He submitted that the decisions of the CCA to the effect that rulings as to the admissibility of evidence and the manner in which evidence is given are not interlocutory judgments or orders for the purposes of s 5F(3) of the Criminal Appeal Act are applicable in this matter. He placed particular reliance upon the recent decision of the CCA in KN v R in this regard. He also relied upon the observations by the Court of Appeal in Salter v Director of Public Prosecutions (NSW). It was submitted that there was nothing about the nature and quality of the decision that would cause this Court to be satisfied that it was an “order” within the meaning of s 53(3)(b) of the CAR Act.

Consideration as to competence of the appeal

1. [51]

   There was no issue taken that the decision of the Magistrate under s 5B of the AVL Act was interlocutory in nature. Where the parties joined issue was as to whether that interlocutory decision is an “order” within the meaning of s 53(3)(b) of the CAR Act.

2. [52]

   In R v Steffan (1993) 30 NSWLR 633, the CCA (comprising Hunt CJ at CL, Grove and Sharpe JJ) considered the meaning of “interlocutory judgment or order” in s 5F(3) of the Criminal Appeal Act. The Court observed (at 636A) that:

3. [53]

   The meaning of “interlocutory order” in s 53(3)(b) of the CAR Act was considered by the Court of Appeal in Salter v Director of Public Prosecutions (NSW). In that matter, the Court (Spigelman CJ, with whom McColl and Campbell JJA agreed) considered an appeal from a decision of Hulme J, who in turn had considered an appeal under s 53(3)(b) of the CAR Act from a decision of Magistrate O’Shane. No jurisdictional issue was taken before Hulme J; it was raised for the first time in the Court of Appeal. The decision of the Magistrate involved the construction of s 308H of the Crimes Act and, in particular, whether there should have been one charge or 22 separate charges laid in that matter. Spigelman CJ noted (at 394 [10]) that the word “order” appears in s 53(3)(b) alone, rather than as part of a broader formulation extending to “judgment or order” as is often the case. At [11], his Honour referred to the observations of Samuels JA in Barton v Walker [1979] 2 NSWLR 740 (at 747D):

4. [54]

   At [13], Spigelman CJ observed that the word “order” is narrower in scope than the word “judgment”, although they may substantially overlap in a particular statutory framework. At [14], his Honour observed that, "Whether a decision or ruling constitutes a ‘judgment or order’ turns on whether there is an operative judicial act.” His Honour stated (at 394 – 395 [15]):

5. [55]

   His Honour went on to state (395 [16]):

6. [56]

   His Honour later observed (at 395 [24]):

7. [57]

   Justice Campbell agreed with the decision of Spigelman CJ and observed (at 396 [32]):

8. [58]

   In Ward v Zimmer [2015] NSWSC 525, Hall J was faced with a threshold question of competence concerning an appeal under s 53(3)(b) of the CAR Act. The question before his Honour was whether a decision by a Magistrate in a Local Court hearing to permit the prosecution to reopen its case was an “interlocutory order” within the meaning of that provision. His Honour considered the question of jurisdiction at [90] – [115] of his judgment and concluded that the decision was not an interlocutory order. His Honour relied upon the decision in Salter v Director of Public Prosecutions (NSW) as well as on a number of CCA decisions. His Honour noted the following in relation to the nature of an appeal under s 53(3)(b) (at [105]):

9. [59]

   In LS v Director of Public Prosecutions (NSW) and Anor [2011] NSWSC 1016, Johnson J considered an appeal by a juvenile charged with a criminal offence against a decision of a Magistrate ruling that it was not open to the juvenile’s mother to object under s 18 of the Evidence Act 1995 (NSW) to being called as a prosecution witness. Johnson J accepted (at [114]) that s 53(3)(b) of the CAR Act did not apply as a ruling on evidence does not answer the description of an "interlocutory order". His Honour observed at [112] that s 53(3)(b) does not confer jurisdiction on the Supreme Court to grant leave to appeal against an "interlocutory decision". In support of the proposition, his Honour cited Salter v Director of Public Prosecutions (NSW) (at 396 [32]).

10. [60]

    In addition to these decisions specifically concerned with s 53(3)(b) of the CAR Act, I have had regard to a number of decisions of the CCA concerning interlocutory applications brought or attempted to be brought under s 5F(3) of the Criminal Appeal Act. There have been several decisions in which it has been held that a decision on the admissibility of evidence is not a “judgment or order” within the meaning of s 5F(3).

11. [61]

    In R v F (2002) 129 A Crim R 126; [2002] NSWCCA 125, Wood CJ at CL said the following about the jurisdiction of this Court under s 5F (at 134 [10] – [11]):

12. [62]

    These passages were cited with approval in AF v R [2015] NSWCCA 35. The question arose in that case as to whether a decision of a District Court judge to permit a complainant to give her evidence by way of recorded interview fell within the ambit of s 5F(3) of the Criminal Appeal Act. R A Hulme J observed (at [31]):

13. [63]

    His Honour went on to observe (at [32]):

14. [64]

    The CCA reached a different conclusion to that of Johnson J in LS v R in Decision Restricted [2017] NSWCCA 93. In that decision, the CCA (Macfarlan JA, with whom Schmidt and Wilson JJ agreed on the threshold issue, Wilson J dissenting as to the outcome) held that the ruling of a District Court judge declining to uphold an objection by the accused’s father under s 18(2) of the Evidence Act to giving evidence against his daughter was an “interlocutory judgment or order” within s 5F(3) of the Criminal Appeal Act.

15. [65]

    The CCA (at [12]) in Decision Restricted relied upon the decision in R v RAG [2006] NSWCCA 343 (distinguished by RA Hulme J in AF v R in the passage extracted at [62] above), which concerned an appeal by the Director of Public Prosecutions under s 5F(3A) against a ruling under s 13 of the Evidence Act that a child complainant was not competent to give evidence. The CCA (Latham J, with whom McClellan CJ at CL and Johnson J agreed) held in that matter that although the ruling under s 13 was not a ruling “on the admissibility of evidence” it was an “interlocutory judgment or order” because it was a “judicial act that determined an identifiable or separate part of the proceedings, namely the competency of the complainant” (at [15]).

16. [66]

    The CCA in Decision Restricted went on to observe (at [13]):

17. [67]

    More recently the decision of the CCA (Beazley ACJ, Walton J and myself) in KN v R [2017] NSWCCA 249 considered the above decisions, included AF v R, in the context of an urgent application for a temporary stay of a jury trial in the District Court until an appeal under s 5F(3) of the Criminal Appeal Act could be heard. The main complaint in that matter was as to two witnesses in Germany and Austria being able to give their evidence by way of AVL using “Jabber”, which was described as being peer-to-peer desktop AVL software. The CCA was thus concerned with whether a temporary stay was required in order to avoid unfairness and ensure a fair trial pending the hearing of the application for leave to appeal (at [11]–[12]).

18. [68]

    In determining whether a temporary stay should be granted, the CCA observed at [52] – [53] that:

19. [69]

    The Court went on at [54] – [55] to refer to the decisions of the CCA in R v Bozatsis and Spanakakis and AF v R. It then observed at [56] – [62]:

20. [70]

    The plaintiff submitted that I would not rely upon the principles derived from these CCA decisions to inform the proper meaning of “order” in s 53(3)(b) of the CAR Act. He relied upon textual differences between the respective Acts in support of this submission.

21. [71]

    It is to be accepted as a general principle of statutory construction that the same words in different statutes do not necessarily have the same meaning and intended operation. Mr Randle relied upon the observations of the Full Court of the Federal Court in Robert Bosch (Australia) Pty Ltd v Secretary, Department of Industry, Innovation, Science, Research in Tertiary Education (2012) 206 FCR 92; [2012] FCAFC 117 (at 111 [71]) as a recent example of the application of this principle. There, the Court observed:

22. [72]

    It seems to me that the Criminal Appeal Act and the CAR Act are sufficiently analogous that I would rely upon the decisions of the CCA regarding the meaning of “order” in s 5F(3) of the Criminal Appeal Act to aid in the construction of the meaning of the word “order” in s 53(3)(b) of the CAR Act. I am unable to accept the plaintiff’s submission that the broader appeal rights conferred upon a person convicted in the Local Court as opposed to in the District or Supreme Court mean that the decisions concerning s 5F(3) of the Criminal Appeal Act do not apply to the construction of the word “order” in s 53(3)(b). On the contrary, the broader the appeal rights conferred following a conviction, the more strictly a provision permitting the fragmentation of the proceedings by way of interlocutory appeal will be construed by the courts. As Spigelman CJ observed in Salter v Director of Public Prosecutions (NSW) at [16], “The ability to appeal after conviction strongly indicates that the word ‘order’ in both pars (a) and (b) of s 53(3) should not be given an expansive meaning.”

23. [73]

    There is a further textual difference between s 5F(3) of the Criminal Appeal Act and s 53(3)(b) of the CAR Act that has not received any judicial attention: while s 5F(3) refers to an interlocutory judgment or order given or made in the proceedings, s 53(3)(b) refers to “an interlocutory order…made by the Local Court in relation to the person in summary proceedings.” Although the difference is of no direct relevance in this matter, it is a further textual difference between the two provisions indicating that the appeal rights under s 53(3)(b) of the CAR Act are narrower than in s 5F(3) of the Criminal Appeal Act.

24. [74]

    I have had regard to the principles derived from the authorities to which R A Hulme J referred in AF v R at [31] regarding the meaning of “order”. One of the reasons for the courts having determined that a ruling on evidence is not an “order” of the court is that it can be changed during the course of the proceedings and lacks finality. It does not require a decision of an appellate court to reverse it. Nor do such rulings conclude the rights of the parties before the hearing is completed. His Honour went on at [32] to observe that the ruling in AF v R that the witness, who was found to be a vulnerable witness within the meaning of s 306M of the Criminal Procedure Act, could give her evidence in chief by way of a recorded interview had the same character as a procedural ruling that did not finally dispose of any discrete part of the proceedings. His Honour contrasted the decision under consideration in AF v R with that in R v RAG, which was a ruling that a child complainant was not competent to give evidence. The effect of that decision was that the complaint would not give evidence at all, which, as his Honour pointed out at [32], had the effect that something “not be done”.

25. [75]

    Although it is true that her Honour received an application and gave detailed reasons for her decision, that fact alone would not mean that her decision is an “order”. Extensive reasons are often provided in relation to interlocutory evidentiary rulings.

26. [76]

    Section 5B(1) of the AVL Act provides that a court “may…direct that a person…give evidence…by…audio visual link.” There is nothing in the language of the statutory task that her Honour was undertaking that renders her decision an “operative judicial act” commanding that something be done, the breach of which would amount to a contempt of court. The prosecution would not be bound to call the witnesses by way of AVL and there would be no need for the prosecution to make an application for revocation of the order if it elected instead to call the witnesses in court. In addition, s 20E of the Act provides that the decision can be revisited at any time. This would include by the Magistrate who finally hears the matter. Section 20A of the AVL Act provides that the evidence cannot be heard by way of AVL if the witnesses and those in court cannot see and hear each other. There is a variety of circumstances in which such a direction could be revisited before the witnesses’ evidence is concluded, particularly if the link were not working adequately. It could not be said that the decision has any element of finality about it.

27. [77]

    The word “order” is to be construed in the context of s 53(3)(b) itself. As Hall J observed in Ward v Zimmer, the language of the sub-section evinces an intention that the right to a statutory interlocutory appeal in Local Court criminal proceedings be limited. I can see no textual reason to construe the word “order” broadly in that statutory context.

28. [78]

    Although the plaintiff submitted that there are no cases in which it has been held that the two appeal provisions are analogous, all of the above decisions concerning s 53(3)(b) of the CAR Act have placed some reliance upon the decisions of the CCA on s 5F(3), including Salter v Director of Public Prosecutions (NSW) and Ward v Zimmer. In Director of Public Prosecutions (NSW) v Leonard (2001) 53 NSWLR 227; [2001] NSWSC 797, James J observed the following (at 236 [40]) in relation to the statutory precursor to s 53:

29. [79]

    It could not be said that there is no precedent for this Court relying upon the decisions of the CCA concerning s 5F(3) of the Criminal Appeal Act to inform the meaning of “order” in s 53(3)(b) of the CAR Act. On the contrary, all of the decisions concerning s 53(3)(b) of the CAR Act to which I was taken included references to these CCA decisions.

30. [80]

    Finally, I note that the plaintiff relied upon the decision in Emily Salisbury v Local Court of New South Wales in support of the proposition that the word “order” could be construed broadly enough to enable a finding that the decision of the Magistrate in this matter was an “order”. Not only was the decision under consideration in that matter of a very different character (namely, a decision requiring a defendant to serve her evidence prior to the hearing in a criminal matter), no issue was taken that the decision was not an “interlocutory order”. According that case does not assist in the proper construction of s 53(3)(b) of the CAR Act.

31. [81]

    Having regard to all of the above, I am not satisfied that the decision of the Magistrate is an “order” within the meaning of s 53(3)(b) of the CAR Act. The statutory appeal is thus not competent.

Judicial review of the decision of the Magistrate

1. [82]

   The plaintiff’s alternative avenue for relief was to invoke this Court’s supervisory jurisdiction on the basis that there has been a constructive failure on the part of the Deputy Chief Magistrate to exercise her jurisdiction.

2. [83]

   Mr Randle conceded that he could not rely upon any error of law on the face of the record (which, by virtue of s 69(4) of the Supreme Court Act, includes her Honour’s reasons) because s 69(3) permits reliance upon error of that nature only for an “ultimate determination” of the decision-maker. Although “ultimate determination” is not defined, the plaintiff did not take issue that the interlocutory decision of the Magistrate does not answer the description of an “ultimate determination”. Thus, it was accepted that the plaintiff would need to establish jurisdictional error in order to obtain the relief sought.

3. [84]

   Although Mr Randle accepted that a ruling on evidence made in criminal proceedings is not susceptible to being affected by jurisdictional error, he nonetheless submitted that certain decisions of an interlocutory nature made in criminal proceedings may be attended by jurisdictional error. In support of this submission, he relied upon decisions in which bias has been established and orders in the nature of prohibition made. It was further submitted that a constructive failure to exercise jurisdiction can be grounded by a failure on the part of a judicial officer to take a necessary step in the decision-making process required under a particular statutory scheme. Mr Randall relied upon what was said by Basten JA in State Super SAS Trustee Corporation v Cornes [2013] NSWCA 257 (at [59]) in support of this proposition.

4. [85]

   The principal jurisdictional error alleged by the plaintiff is that the Magistrate erred in acting on unsubstantiated assertions rather than admissible evidence. He placed reliance on the decisions of Hamill J in R v Quami & Ors (AVL) [2015] NSWSC 1711 and Dunford J in R v Ngo; Dinh; Dao [2001] NSWSC 339 as to the quality of evidence required before such a decision can be made. He also relied upon the observations of Hamill J in R v Quami & Ors (No 9) (at [9]) as to the potential issues that can arise when a witness gives evidence by way of AVL.

5. [86]

   It was submitted that the Magistrate reversed the onus of proof when she observed that there was “no cogent basis” not to accept the assertion by the police officer regarding the availability of AVL facilities in Sweden. It was also submitted that her Honour had ignored s 20A of the AVL Act when she stated in her reasons that the AVL did not have to be of any particular quality.

6. [87]

   The plaintiff relied upon the standard of evidence required in forensic procedure applications by way of analogy.

7. [88]

   It was submitted that the Magistrate did not appear genuinely to advert to the fact that what was before her was a contested application with “no supporting evidence whatsoever”. It was submitted that the Magistrate was not permitted to take judicial notice of the fact that there would be AVL facilities available in Sweden.

8. [89]

   Finally, the plaintiff directed submissions to the various rules governing applications in the Local Court and to ss 26(2)(a), 28, 44 and 71 of the Local Court Act. It was submitted that no rules have been made that would permit the Magistrate to dispense with the rules of evidence when determining whether a witness could give evidence by way of AVL.

9. [90]

   Mr Cahill relied upon the decision of the High Court in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321; [1990] HCA 33 in support of his submission that procedural decisions such as that made by the Magistrate in this matter are not amenable to judicial review. He also relied upon what was said by the Court of Appeal in WO v R [2009] NSWCA 370 (at [14]).

10. [91]

    The first defendant submitted that the decision could not be said to have affected the plaintiff’s legal rights. It was submitted that implicit in the plaintiff’s position is that the taking of evidence by AVL, rather than in the court room, by necessity has an adverse effect on the capacity of the tribunal of fact to determine credit. The Magistrate at the hearing is not bound by the determination made by the Deputy Chief Magistrate. There is no suggestion that the fact that that her Honour made the order in Chambers means that she will be the Magistrate who finally hears the matter. It is an interlocutory decision that could be revisited, not only by the Deputy Chief Magistrate but by any other Magistrate in the intervening period and the Magistrate who ultimately hears this matter. The situation may change in a number of different ways. Circumstances may arise during the course of the hearing warranting a further application, by the prosecutor, the defendant or even the court on its own motion. There are a number of matters of speculation at this stage of the proceedings.

11. [92]

    It was submitted that the Magistrate’s decision did not determine any issue in the proceedings. Nor did it have any final effect on any rights of the plaintiff. In those circumstances, the decision is not justiciable.

12. [93]

    As for the grounds of judicial review upon which the plaintiff relies, Mr Cahill’s central submission was that there was no error of law because the plaintiff’s complaint is, in effect, a no evidence ground. It could not be said that there was no evidence before the Magistrate upon which to base her decision.

13. [94]

    It was noted that the plaintiff did not dispute in his written submissions before the Magistrate that both witnesses had left Australia and that they preferred to give their evidence from Sweden.

14. [95]

    Mr Cahill submitted that the criticism now made by the plaintiff is one of form rather than substance.

15. [96]

    The first defendant accepted that there had been a request prior to the making of these AVL applications to have any such applications listed for hearing. However, it was noted that, after the filing of the applications, the plaintiff did not seek to have them listed before the court, nor request that the informant be called for cross-examination. Nor did the plaintiff object in his written submissions below to the Magistrate’s having regard to the content of the applications. Further, the plaintiff did not object to the applications being considered in Chambers.

16. [97]

    Mr Cahill addressed why it was submitted on behalf of the first defendant that it could not be said that there was no evidence for the Magistrate to find that none of the conditions in ss 5B(2)(a)-(d) of the AVL Act existed.

17. [98]

    Finally, it was submitted that there was an element of futility to the proceedings in that it was “ludicrous” to suggest that there are no suitable AVL facilities, including proprietary peer-to-peer programmes such as “Jabber”, available in Sweden. Thus Mr Cahill submitted that it is overwhelmingly likely that the same decision would be made if the decision of the Deputy Chief Magistrate were quashed.

Consideration as to judicial review

1. [99]

   It is to be accepted that the plaintiff could not ground any relief based on establishing error of law on the face of the record. Section 69(3) of the Supreme Court Act provides that this Court’s jurisdiction to grant relief in the nature of the writ of certiorari “includes” the court’s power to quash the “ultimate determination” of a court for error of law on the face of the record. Prior to the enactment of s 69(4) of the Supreme Court, “the record” comprised any initiating documentation, any pleadings, and the orders made: Craig v State of South Australia (1995) 184 CLR 163; [1995] HCA 58 (at 182). Section 69(4) now relevantly provides that, for the purposes of s 69(3), the “face of the record” includes the reasons expressed by the court for its “ultimate determination”: Kirk v Industrial Court of New South Wales (2010) 239 CLR 531; [2010] HCA 1 (at 578 [89]).

2. [100]

   The reasons of the Magistrate for making the interlocutory direction under s 5B of the AVL Act were not reasons expressed by the court for its “ultimate determination” and thus they cannot be taken into account in determining error of law on the face of the record. In circumstances where error could not be gleaned from the decision itself (without any reasons), I am satisfied that the plaintiff could not rely upon an alleged error of law on the face of the record as a basis for the relief sought.

3. [101]

   The first defendant also submitted that the interlocutory decision of the Magistrate was not amenable to judicial review in any event because it was procedural in nature. I have come to the conclusion that I do not need to consider whether the Magistrate’s decision could be quashed if jurisdictional error were established because I am satisfied that no error, jurisdictional or otherwise, has been established in this matter.

4. [102]

   I have already extracted s 5B of the AVL Act at [11] above. Section 5B(2) prohibits a court making a direction under s 5B(1) if any of the four criteria in ss 5B(2)(a)-(d) are present. For ease of reference, I will extract those four criteria again:

5. [103]

   Although findings in relation to these four matters involve evaluative judgments, there is no discretion for the court if one or more of them is established. There is clearly a legislative intention that a higher onus will apply if the witness is to give evidence within New South Wales. Section 5B(3) provides that, in those circumstances, the party making the application must satisfy the court that it is in the interests of the administration of justice to make the order. The same test does not apply when it is proposed that the evidence will be given from a place outside New South Wales.

6. [104]

   There are two aspects to the plaintiff’s complaint that the Magistrate did not advert to the fact that before her was a contested application with, on the plaintiff’s submission, “no supporting evidence whatsoever”. The primary argument was that there was no “admissible” evidence. That aspect of the complaint focuses on the question of form rather than substance. The secondary argument was that there was insufficient material to be satisfied that the matters in ss 5B(2) (a)–(c) did not exist.

7. [105]

   Dealing first with the question of “admissible” evidence, the plaintiff argued that the Magistrate was acting judicially and therefore had no basis to dispense with the rules of evidence and rely upon the bare assertions in the pro forma applications.

8. [106]

   I note that there is nothing in the AVL Act nor the Local Court Act that requires that the court inform itself in any particular way of the matters set out in s 5B(2) of the AVL Act. The pro forma application sets out a number of questions. The applicant must sign the form. Both forms were signed by the first defendant in this matter, who is the informant in the criminal proceedings. The form is prefaced with a note that the application will be dealt with in chambers “unless there is good reason for it to be listed before a court.” Part A is to be completed by the applicant and Part B by the other party. Part B was completed by the plaintiff’s solicitor in this matter, but nowhere on the application was any “good reason” provided as to why the application should be listed before a court. Nor did the plaintiff make any request for this to occur in either Part B of the application form or the attached submissions. It is difficult to see how the Magistrate was on notice that the plaintiff objected to the form of the evidence contained in the application in the absence of any complaint about it in the form or written submissions.

9. [107]

   Although the plaintiff asserts that a request had been made to a different Magistrate at an earlier mention of the matter to have any arguments concerning AVL listed for hearing, it was not suggested that there was anything put before the Deputy Chief Magistrate to that effect. It was generally accepted that there was nothing before her Honour to indicate that the plaintiff wished the application to be dealt with in court.

10. [108]

    The plaintiff relied by way of analogy upon the decisions of this Court in Orban v Bayliss [2004] NSWSC 428 and Walker v Bugden (2005) 155 A Crim R 416; [2005] NSWSC 898. Those decisions concern the evidentiary requirements found in what are now ss 24 and 26 of the Crimes (Forensic Procedures) Act 2001 (NSW). The significant differences between the relevant provisions in that Act and those in s 5B of the AVL Act do not assist the plaintiff’s argument. Section 26(2) of the Crimes (Forensic Procedures) Act provides that an application for such an order must be made in writing, and, relevantly, “be supported by evidence on oath, or by affidavit, in relation to the matters as to which the Magistrate must be satisfied, as referred to in section 24(1).” Section 24 provides, inter alia, that there must be “reasonable grounds” for believing certain matters before an order can be made. That this requirement exists is not surprising given the abrogation of a suspect’s rights under that Act. Unlike s 26 of that Act, there is no requirement for an application under s 5B of the AVL Act to be supported by evidence “on oath or by affidavit”. If it were considered appropriate for supporting evidence to be in that form, it might be expected that the relevant section would have so provided.

11. [109]

    The plaintiff further relied upon the relevant provisions in the Local Court Act pertaining to “applications” and noted that no rule had been provided that permitted a Magistrate to dispense with the rules of evidence. Although that is to be accepted, that does not mean that the method for making these applications in the Local Court (namely, in chambers and based on written pro forma applications) is inconsistent with the Magistrate acting judicially. Nor does the fact that the application was dealt with in chambers mean that the Magistrate did not approach the matter as one would a contested application. On the contrary, her Honour provided detailed written reasons in which she addressed each of the matters raised on behalf of the plaintiff in opposing the applications.

12. [110]

    The plaintiff relied upon the fact that the decisions of Hamill J in R v Quami & Ors (AVL) and Dunford J in R v Ngo; Dinh; Dao disclose that those AVL applications were heard in court. The fact that some applications under s 5B of the AVL are heard in court does not mean that Local Court Magistrates cannot consider such applications in chambers on the papers if no request to do otherwise is made.

13. [111]

    I am not satisfied that the Deputy Chief Magistrate fell into error, jurisdictional or otherwise, by proceeding to deal with the applications in Chambers and by not requiring the evidence to be before her by way of affidavit in circumstances where there is no statutory requirement for that to occur. To the extent that any complaint is now made that the evidence was not on oath, there was no indication by the plaintiff in either Part B of the application form or the written submissions that he wished to cross-examine the informant in court. It cannot be said that any error arises from the fact that the material to which the Deputy Chief Magistrate had regard was unsworn and relied in part on hearsay assertions in these circumstances.

14. [112]

    The secondary aspect of the plaintiff’s complaint is that there was insufficient material before her Honour in any event to be satisfied of the matters in ss 5B(2)(a),(b) and (c) of the AVL Act. In particular, the plaintiff complains that it was not open to her Honour to find, on the material before her, that (removing the double negatives) suitable AVL facilities were available at the (undisclosed) proposed international witness location. Complaint is also made regarding the material in the application asserting that there was “no other way” that the witnesses could give their evidence.

15. [113]

    Section 5B(2)(a) of the AVL Act provides that the AVL order is not to be made if the “necessary facilities are unavailable or cannot reasonably be made available”. The pro forma application signed by the police officer requires an applicant to confirm that this is the case. In both applications the following appears:

16. [114]

    It is to be noted that the phrase “necessary facilities” is not defined in the AVL Act. Despite this, “audio visual link” is defined in the AVL Act as meaning “facilities (including closed circuit television) that enable audio and visual communications between persons at different places.” This is a broad definition enacted at a time prior to AVL being available on personal computers by way of software such as Skype and Jabber.

17. [115]

    Her Honour accepted the assertion made by the police officer in the signed application and noted that there was “…no cogent basis advanced by the defendant that would lead the court to doubt the veracity of that contention.” I do not accept the plaintiff’s submission that the Deputy Chief Magistrate reversed the onus of proof in making this observation. The statutory task that her Honour was required to undertake was to determine whether necessary AVL facilities were either unavailable or could not reasonably be made available. There was no material before her Honour to suggest that such facilities could not, at the very least, “reasonably be made available.” It was thus open to her Honour not to be so satisfied, given the broad language in s 5B(2)(a). The plaintiff contends that her Honour was not entitled to take judicial notice of the fact that AVL facilities would be available in Sweden. Although the reasons do not disclose that her Honour’s conclusion was based on her taking judicial notice of this fact, I am not satisfied that her Honour would have been precluded from relying, in part, on judicial notice in this regard in any event: s 144 of the Evidence Act.

18. [116]

    Her Honour went on to state that, if the facilities ended up being unavailable, the witnesses could not give their evidence “…in which circumstance it is difficult to conceive of any disadvantage to the defendant.” I cannot accept the plaintiff’s contention that error is disclosed in this observation. It is to be accepted that her Honour had to be satisfied of this requirement at the time of the making of the application and not at some subsequent time, but her Honour was addressing the plaintiff’s submission as to the quality of AVL required in that part of her reasons. It is the experience of the courts that AVL may commence working well and then fail for some reason. Her Honour’s reasons reflect this. Further, her Honour only had to be satisfied that the “necessary facilities were either unavailable or could not reasonably be made available” at the time. It is difficult to see how her Honour could be satisfied that necessary AVL facilities could not reasonably be made available in Sweden given the broad definition of AVL in the AVL Act.

19. [117]

    It seems to me that the purpose of s 5B(2)(a) is no doubt to avoid the futility of making an order for a witness to give evidence by way of AVL from a location where no such facilities are available or able reasonably to be made available. The AVL Act was enacted in 1998, nearly 20 years ago. A court could not have been satisfied 20 years ago that AVL facilities would be available in the remote location unless that fact was confirmed. Given the great speed with which technology has advanced since that time, a point noted by the learned Magistrate at [9] of her reasons, it would be somewhat unusual if necessary AVL facilities could not reasonably be made available in Sweden.

20. [118]

    The Deputy Chief Magistrate also observed that “life experience and common sense” inform that it would plainly be more cost effective for the witnesses to give their evidence by way of AVL. No complaint is made of this aspect of the reasons and nor could there be.

21. [119]

    To the extent that the plaintiff contends that, at a time well in advance of the hearing, an applicant under s 5B must provide details of the precise room in a precise venue in which the witness will give evidence, I am not satisfied that this is required by s 5B(2)(a) of the AVL Act. Often the quality of the AVL will depend upon the size of the screen in the courtroom. These can vary in different courts. It will often be the case that the courtroom in which a matter will be heard is undetermined when an application under s 5B is made.

22. [120]

    I am not satisfied that there was “no evidence” before her Honour regarding s 5B(2)(a) of the AVL Act. Her Honour had regard to the confirmation by the informant that the facilities were available, the plaintiff’s submissions, the decision in ASIC v Rich, and her experience as a senior Magistrate. Her Honour was satisfied that s 5B(2)(a) did not apply based upon the informant’s confirmation of that fact. When this fact is combined with s 20E of the AVL Act, it could not be said that her Honour misapprehended her jurisdiction in not being satisfied the facilities were not available.

23. [121]

    The plaintiff complains that there was insufficient material as to why there was “no other way” that the witnesses would be available to give evidence. Her Honour considered this aspect of the application when dealing with s 5B(2)(b) of the AVL Act and the balancing of convenience as between the witness, the defendant, the court and the community. In R v Wilkie; R v Burroughs; R v Mainprize, Howie J considered (at [9]) that the reason why a witness cannot attend in person to give evidence is relevant to the discretion in s 5B(1) of the AVL Act, rather than to the “success or otherwise” of the application. His Honour went on to note (at [12]) that, “There is nothing in s 5B(1) to indicate that some precondition should be imposed upon the operation of the section based upon there being a good reason for the witness’s absence from the court room…”

24. [122]

    Her Honour had regard to the decision of Howie J in her reasons and cited the italicised portion of his Honour’s comments at [48] as follows:

25. [123]

    The first defendant relied upon Howie J’s observations in the non-italicised part of this passage in this matter in support of the proposition that convenience is not relevant once the Deputy Chief Magistrate was satisfied that the witnesses would not come to Australia. I do not accept that his Honour meant this to stand as a general proposition. There was evidence in that case to suggest an unwillingness on the part of the witnesses to return to Australia for various legal reasons. It is to be accepted that no reasons were provided as to why the complainant and Ms Kall could not come to Australia to give their evidence in the present matter; the applications simply stated that there was no other way for them to give their evidence. The fact remains that s 5B makes no reference to the need for any reasons to be provided as to why the witness cannot attend court in person.

26. [124]

    To the extent that the plaintiff complains that the Deputy Chief Magistrate concluded that, “on the available information”, she could not be satisfied that the evidence of the two witnesses could more conveniently be given in the courtroom rather than by AVL, I am satisfied that what her Honour meant by “available information” is clear from paragraph [10] of her reasons. That information comprised the fact that the witnesses reside in Sweden, the distance from Sweden to Sydney, the fact that it would be more convenient for a resident of Sweden to give evidence from Sweden rather than fly to Australia, the fact that the plaintiff would prefer the witnesses to be in the courtroom, and the community interest not only in serious allegations being heard but also in minimising the costs to the community of transporting and accommodating the witnesses in Sydney for the duration of the hearing. Her Honour also had regard to the fact that courts in this state “habitually” receive evidence from witnesses who are not in the courtroom and that, “The court is well able to manage such cases in a way that allows the convenience of all relevant parties to be accommodated.” I am satisfied that it was open to her Honour not to be satisfied of s 5B(2)(b) of the AVL Act.

27. [125]

    As for the question of unfairness, the plaintiff relied primarily on the fact that a significant attack would be made on the credit of these two witnesses. As Howie J observed in R v Wilkie; R v Burroughs; R v Mainprize at [69]:

28. [126]

    The Deputy Chief Magistrate made a similar observation at [11] of her reasons when she noted that complainants in prescribed sexual offence proceedings and vulnerable witnesses usually give evidence by way of AVL. She noted that, “It seems that Parliament has determined in those proceedings no issues of unfairness arise.” As noted above, even if the complainant were present in Sydney she still would have presumably given her evidence by way of AVL, unless the plaintiff could establish “special reasons, in the interests of justice” for that not to occur: s 294B of the Criminal Procedure Act.

29. [127]

    A further discrete error in relation to her Honour’s failure to consider s 20A of the AVL Act expressly is also alleged. Her Honour was addressing the submission made by the plaintiff in his written submissions in the Local Court that a high standard of AVL was necessary because the prosecution witnesses were crucial and their credibility in issue. In response to this submission, her Honour stated:

30. [128]

    I do not accept that this passage of her Honour’s reasons discloses the error for which the plaintiff contends. Section 20A of the AVL Act provides that the AVL facilities must be such that the persons giving evidence (or making submissions) can see and hear the persons in the courtroom (or other place) and vice versa. It says nothing about the particular quality of the AVL link. It is difficult to see how evidence from witnesses whose credibility is crucial could be given via AVL if the witnesses and the court could not see or hear each other.

31. [129]

    I note that the plaintiff did not make complaint in either the Local Court or this Court that her Honour should have been satisfied of the requirement in s 5B(2)(d) of the AVL Act despite the fact that that matter also was also addressed by a hearsay assertion from the first defendant.

32. [130]

    For the above reasons, I am satisfied that it was open to her Honour to approach the application in the manner that she did and to make the findings that she did. I am thus not satisfied that there has been error, jurisdictional or otherwise, on the part of the Deputy Chief Magistrate.

33. [131]

    As I have stated above, given the busy workload of the Local Court and the increasing practice of witnesses giving their evidence by way of AVL, there is no reason why uncontested applications of this nature cannot be considered on the papers by a Magistrate in Chambers. Despite this, it seems to me that if a party opposes such an application and wishes for the matter to be heard in a courtroom so that, for example, evidence can be adduced or a witness cross-examined, then that course should be taken. If the plaintiff had indicated either in Part B of the application or his submissions that he objected to the application being considered in Chambers and wished, for example, to test the assertions in the application by way of cross-examination and the Magistrate had refused to list the matter in court, then that might have been a different situation. The simple fact is that no objection was made to the usual practice at the relevant time.

34. [132]

    Although the pro forma application form states that applications under s 5B will usually be considered in Chambers unless there is “a good reason for it to be listed in a court”, the form does not actually provide for such an election to be made. That is, there is no provision on the pro forma document for an opposing party to indicate that he or she objects to the matter being considered in Chambers and/or where he or she can identify the reason why the application needs to be heard in court. It seems to me that consideration might be given to whether such a provision should be included on the application form to remove any possible doubt in this regard.

35. [133]

    I make the following orders:

    1. (1)

       The summons is dismissed.

    2. (2)

       The plaintiff is to pay the first defendant’s costs.