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Agar v McCabe (No 3)

Agar v McCabe (No 3)

Case [2015] VSC 542 7 October 2015

Judicial Review

Natural Justice & Procedural Fairness

Error on the Face of the Record

Administrative Law

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

S CI 2014 4710

CARL PAUL AGAR	Plaintiff
v
LEADING SENIOR CONSTABLE KATHLEEN McCABE (21804) of TRAFFIC CAMERA OFFICE	First Respondent
and
THE MAGISTRATES’COURT OF VICTORIA	Second Respondent

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JUDGE:	DERHAM AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	22 September 2015
DATE OF JUDGMENT:	7 October 2015
CASE MAY BE CITED AS:	Agar v McCabe (No.3)
MEDIUM NEUTRAL CITATION:	[2015] VSC 542

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JUDICIAL REVIEW – Order 56 of the Supreme Court (General Civil Procedure) Rules 2005 – Application in the nature of certiorari and mandamus – Plaintiff charged with one count of exceeding the speed limit – Plaintiff failed in judicial review of decision to refuse an application for release of subpoenaed documents, but succeeded in relation to an associated costs order (see Agar v The Magistrates’ Court of Victoria, [2014] VSC 309) – Matter remitted to the Magistrates’ Court at Frankston to rehear and determine the costs application according to law – Costs application reheard by a different Magistrate – Magistrate awarded costs of the same order as originally ordered – Whether decision to award costs involved jurisdictional error or error on the face of the record – Error revealed in the identity of the person awarded costs – Error not such as to vitiate decision – Exercise of discretion in relation to an order in the nature of certiorari.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	In person
For the First Respondent	Mr Stephen T Russell	Maddocks Lawyers
For the Second Respondent

TABLE OF CONTENTS

Introduction......................................................................................................................................... 1

Background......................................................................................................................................... 1

The Reasoning of T Forrest J Leading to Quashing the Costs Order...................................... 3

The Decision under Review............................................................................................................. 4

The Application for Judicial Review.............................................................................................. 7

Submissions and Consideration..................................................................................................... 9

First Ground................................................................................................................................... 9
Consideration..................................................................................................................... 10

Second and Third Grounds....................................................................................................... 14
Consideration..................................................................................................................... 14

Fourth Ground............................................................................................................................. 17
Consideration..................................................................................................................... 18

Fifth Ground................................................................................................................................ 18
Consideration..................................................................................................................... 19

Sixth Ground................................................................................................................................ 19
Consideration..................................................................................................................... 20

Conclusion......................................................................................................................................... 21

HIS HONOUR:

Introduction

The plaintiff seeks to review orders made in the Magistrates’ Court at Frankston on 22 July 2014 under Order 56 of the Supreme Court (General Rules) 2005 (‘Rules’). The order subject to review is an order for costs against the plaintiff arising out of the issuing by him of a witness summons in the context of his prosecution for a traffic violation. The trial of the proceeding was referred to me pursuant to r 77.05 of the Rules.[1]
[1]Order of J Forrest J made 21 September 2015.

Background

On 14 November 2012 the plaintiff was detected by a traffic camera driving his motor vehicle at 108 km/h at Wellington Road Bridge on a section of the road named East Link. The alleged speed was 105 km/h. Upon receipt of the traffic infringement notice he elected to dispute the matter in Court. Subsequently he received a charge and summons returnable on 1 August 2013 at the Magistrates’ Court at Frankston.[2]
[2]Affidavit of Carl Paul Agar sworn 24 September 2014 (‘Agar Affidavit’), exhibit CPA-1,…

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 (No 3)

Details

AGLC: Agar v McCabe (No 3) [2015] VSC 542
Case: [2015] VSC 542
Decision Date: 7 October 2015

CaseChat Overview and Summary

The plaintiff, Agar, brought an application for judicial review against McCabe, a Magistrate, concerning a decision to refuse the release of subpoenaed documents and an associated costs order. The case was initially heard in the Supreme Court of Victoria, where Agar had previously unsuccessfully sought to overturn the refusal of the documents but succeeded in relation to the costs order. The case was remitted to the Magistrates' Court at Frankston for the reconsideration of the costs order. After the rehearing, the Magistrate awarded costs of the same amount as originally ordered. Agar then sought to challenge the decision to award costs, arguing that it involved a jurisdictional error or an error on the face of the record. The court had to determine whether the error in the identity of the person awarded costs was such as to vitiate the decision.

The court examined whether the error in awarding costs to the wrong party amounted to a jurisdictional error or an error on the face of the record. The court acknowledged that the error in awarding costs to the wrong party was indeed a significant mistake, but it did not find that this error was of a nature to vitiate the decision. Instead, the court concluded that the error did not prevent the Magistrates' Court from exercising its discretion in relation to the costs order. The court found that the Magistrate had the authority to reconsider and redetermine the costs application according to law, and the error did not affect the court's ability to make a lawful and correct decision.

In light of the findings, the court dismissed Agar's application for judicial review. The court held that the error in awarding costs to the wrong party did not vitiate the decision, as the Magistrate still had the discretion to make a lawful and correct decision regarding the costs order. The court emphasised that the error did not affect the court's ability to exercise its discretion in relation to the costs order, and therefore, the decision to award costs was not flawed to the extent that it required judicial intervention.

The court's final orders dismissed the application for judicial review and affirmed the decision of the Magistrates' Court at Frankston in relation to the costs order. The court did not find any jurisdictional error or error on the face of the record that would warrant the quashing of the decision or the making of any orders in the nature of certiorari or mandamus. The court's decision upheld the Magistrates' Court's authority to reconsider and redetermine the costs application according to law, and the error in awarding costs to the wrong party did not vitiate the decision.

Orders