Agar v Dolheguy - [2010] VSC 506

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 7725 of 2009

CARL PAUL AGAR	Plaintiff
and
PETER DOLHEGUY	First Defendant
and
THE COUNTY COURT OF VICTORIA	Second Defendant

---

JUDGE:	MACAULAY J
WHERE HELD:	Melbourne
DATE OF HEARING:	27 September 2010
DATE OF JUDGMENT:	11 November 2010
CASE MAY BE CITED AS:	Agar v Dolheguy
MEDIUM NEUTRAL CITATION:	[2010] VSC 506	First Revision: 22/11/10

---

JUDICIAL REVIEW – Decision of County Court judge – Exceeding speed limit – Proof of testing, sealing and use of speed measuring device – Combined error tolerances of speedometer and police speed measuring device – Defence of honest and reasonable mistake – Statutory construction - Meaning of “satisfied” in Reg 306 Road Safety (General) Regulations 1999 – International Convention establishing International Organisation of Legal Metrology - Kearon v Grant (1991) 1 VR 321 applied – Van Reesma v Police [2010] SASC 201 considered – Road Safety Act 1986 (Vic) ss 79, 83 – National Measurement Act 1960 (Cth) ss 4, 18(2)(i).

---

APPEARANCES:	Counsel	Solicitors
Mr Agar appeared on his own behalf
For the First Defendant	Mr D Bliss	Craig Hyland, Solicitors for Public Prosecutions
For the Second Defendant	No appearance	Victorian Government Solicitor’s Office

HIS HONOUR:

Introduction

Mr Agar (the Plaintiff) seeks judicial review of a decision of a County Court judge who, on an appeal from a Magistrates’ Court decision, convicted and fined Mr Agar for driving a vehicle at a speed exceeding the speed limit.

On 29 August 2006 Mr Agar was detected driving his motor vehicle at 78km/h in a 70km/h zone on the Nepean Highway, Seaford. After electing to contest a traffic infringement notice Mr Agar was charged with driving over the speed limit contrary to reg 20 of the Road Rules. The speed alleged was 75km/h.

On 31 March 2008 the Magistrates’ Court at Frankston found the charge proved. Mr Agar was convicted and fined $50 and ordered to pay witness costs in the sum of $700.

Mr Agar appealed to the County Court against conviction and sentence pursuant to the then existing provisions of s 83 of the Magistrates’ Court Act1989. On 15 May 2009 his Honour Judge Campbell set aside the orders of the Magistrate, found the offence proven and made orders identical to those made by the Magistrate.

By Originating Motion filed in this Court, Mr Agar invokes the court’s power to supervise the exercise of jurisdiction by the County Court rather than pursue any avenue of appeal. The proceeding is brought pursuant to Order 56 of the Supreme Court (General Civil Procedure) Rules2005 which prescribes the procedure for the conduct of a review formerly commenced by prerogative writ. Mr Agar seeks an order in the nature of certiorari to quash the decision of the County Court. As he did before Judge Campbell, Mr Agar represented himself before this Court.[1]
[1]The second defendant informed the Court that it did not intend to appear in the proceeding…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Agar v Dolheguy

Details

AGLC: Agar v Dolheguy [2010] VSC 506
Case: [2010] VSC 506
Decision Date: 11 November 2010

CaseChat Overview and Summary

Agar was the successful applicant in an appeal against a conviction for speeding. The applicant appealed to the Court of Appeal against his conviction in the County Court for exceeding the speed limit. The appeal was dismissed by the County Court, and the applicant sought judicial review of that decision in the Supreme Court. The primary issue for the court was whether the County Court was correct to dismiss the appeal on the basis that the applicant had failed to satisfy the burden of proving that the police speed measuring device was faulty. The court also had to consider whether the County Court judge correctly applied the law in relation to the meaning of “satisfied” in Regulation 306 of the Road Safety (General) Regulations 1999 and whether the combined error tolerances of the speedometer and police speed measuring device were properly taken into account.

The court found that the County Court judge did not err in law in dismissing the appeal. The court held that the applicant had not discharged the onus of proving that the police speed measuring device was faulty. The court also held that the County Court judge correctly applied the law in relation to the meaning of “satisfied” in Regulation 306 of the Road Safety (General) Regulations 1999 and that the combined error tolerances of the speedometer and police speed measuring device were properly taken into account. The court held that the applicant’s argument that the combined error tolerances should have been taken into account when determining whether the County Court judge was satisfied that the police speed measuring device was accurate was rejected. The court held that the combined error tolerances were not relevant to the question of whether the County Court judge was satisfied that the police speed measuring device was accurate.

The court also rejected the applicant’s argument that the County Court judge failed to properly consider the evidence of the police officer who operated the speed measuring device. The court held that the County Court judge had properly considered the evidence of the police officer and that there was no error in law in the County Court’s reasoning. The court held that the County Court judge had properly considered all of the evidence before him and had not erred in law in reaching his decision.

The appeal was dismissed with costs.

Orders