JUDGE:	T FORREST J
WHERE HELD:	Melbourne
DATES OF HEARING:	8 May 2014
DATE OF JUDGMENT:	27 June 2014
CASE MAY BE CITED AS:	Agar v McCabe
MEDIUM NEUTRAL CITATION:	[2014] VSC 309

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ADMINISTRATIVE LAW – Plaintiff charged with one count exceeding the speed limit – Judicial review of a decision to refuse an application for release of subpoenaed documents and an associated costs order – Test of legitimate forensic purpose – whether error of law on the face of the record – whether unreasonableness – whether Magistrate erred in failing to obtain plaintiff’s consent before he was cross examined on his previous convictions – Relevant considerations to the costs discretion under s 131(1) of the Magistrates Court Act 1989 – proportionality and consistency.

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APPEARANCES:	Counsel	Solicitors
The Plaintiff in person	N/A	N/A
For the First Defendant	Mr G. Lyon QC with Mr S. Russell	Maddocks
For the Second Defendant	N/A	N/A

HIS HONOUR:

Introduction

The plaintiff, Mr Carl Agar, seeks review of orders made in the Magistrates Court on 29 August 2013 pursuant to Order 56 of the Supreme Court (General Civil Procedure) Rules 2005.

The first impugned order dismissed an application on summons by the plaintiff for the production of twelve documents relating to the testing, calibration and use of a traffic camera positioned on East Link at Rowville, Victoria (‘the subpoenaed documents’). The second impugned order awarded costs against the plaintiff.

The summons was issued in the context of a summary criminal proceeding during which the plaintiff sought to defend one charge of exceeding the speed limit contrary to Rule 20 of the Road Safety Road Rules 2009, which is a classic absolute liability offence.[1] The charge sheet sets out the particulars of the alleged offending as follows:

The Accused at Rowville on 14/11/2012 being the driver of a vehicle on a length of road, named East Link, did drive at a speed over the speed-limit applying to the driver for the length of road where the driver is driving, to which a speed-limit sign of 100 kilometres per hour applied at Wellington Road Bridge.

The alleged offence was detected by a road safety camera and the alleged speed was 105km/h.[2]

[1]Kearon v Grant [1991] 1 VR 321.

[2]Once allowance had been made for an uncertainty of 3km/h.

The Road Safety Act 1989 (‘the Act’) creates a scheme according to which offences detected by road safety cameras may be proved without the need to call evidence concerning the operation of those cameras. An image or message produced by a road safety camera that is provided in or with a certificate that complies with various provisions of the Act may, in the absence of evidence to the contrary, be relied upon…

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 McCabe

Details

AGLC: Agar v McCabe [2014] VSC 309
Case: [2014] VSC 309
Decision Date: 27 June 2014

CaseChat Overview and Summary

In the matter of Agar v McCabe, the respondent, McCabe, sought judicial review of a magistrate's decision to refuse an application for the release of subpoenaed documents and an associated costs order. The case was heard in the Supreme Court of Victoria. The plaintiff, Agar, was charged with one count of exceeding the speed limit and had applied for the release of certain documents to be used for forensic examination. The magistrate denied the application, finding that the documents were not necessary for a legitimate forensic purpose.

The primary legal issues that the court was required to decide included whether the magistrate had erred in finding that the documents were not required for a legitimate forensic purpose, whether the magistrate had made an error of law on the face of the record, and whether the magistrate's decision was unreasonable. Additionally, the court had to determine whether the magistrate had erred in failing to obtain the plaintiff's consent before he was cross-examined on his previous convictions. The court also needed to consider the relevant considerations to the costs discretion under section 131(1) of the Magistrates Court Act 1989, including proportionality and consistency.

The court found that the magistrate had erred in finding that the documents were not required for a legitimate forensic purpose. The court held that the test for a legitimate forensic purpose is whether the documents are necessary for the purpose of the proceedings, and the plaintiff had demonstrated that they were necessary for his defence. The court also found that the magistrate had made an error of law on the face of the record by failing to consider the plaintiff's need for the documents for a legitimate forensic purpose. Furthermore, the court found that the magistrate's decision was unreasonable because it was based on an incorrect understanding of the law. Finally, the court held that the magistrate had erred in failing to obtain the plaintiff's consent before he was cross-examined on his previous convictions.

The court ordered that the application for the release of subpoenaed documents be granted, and the associated costs order be set aside. The court also ordered that the costs of the application be paid by the respondent.

Orders