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Austin v Dwyer

Austin v Dwyer

Case [2018] VSC 770 10 December 2018

Judicial Review

Summary Judgment

Administrative Law

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S ECI 2018 00261

FIONA AUSTIN	Plaintiff
v
DETECTIVE SERGEANT TRENT DWYER, MAGISTRATES' COURT OF VICTORIA	Defendant

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JUDGE:	Derham AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	30 November 2018
DATE OF JUDGMENT:	10 December 2018
CASE MAY BE CITED AS:	Austin v Dwyer
MEDIUM NEUTRAL CITATION:	[2018] VSC 770 First revised 2 April 2019

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JUDICIAL REVIEW – Application to review decision of the Magistrates’ Court of Victoria – Relief sought in the nature of a writ of certiorari and mandamus - Supreme Court (General Civil Procedure) Rules 2015 ord 56.

PRACTICE AND PROCEDURE – Summary judgment – Application for summary judgment under s 63 of the Civil Procedure Act2010 – Civil Procedure Act 2010 ss 62, 63 –Application for summary judgment granted.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	The plaintiff appeared in person
For the Defendant	Ms H Spowart	Ms H Spowart, Managing Principal Advocate, Advocacy Team, Victoria Police

TABLE OF CONTENTS

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

This proceeding (OM-3)............................................................................................................... 1
Magistrates’ Court proceedings.................................................................................................. 2
The first originating motion - OM-1........................................................................................... 3
The second originating motion – OM-2..................................................................................... 4

Procedural Background.................................................................................................................... 5

The role of the Court on a judicial review application............................................................... 7

Certiorari........................................................................................................................................ 8
Mandamus..................................................................................................................................... 9

Self-Represented Litigant............................................................................................................... 10

Plaintiff’s evidence and submissions........................................................................................... 12

Intervention orders proceeding................................................................................................ 12
Criminal charges proceeding.................................................................................................... 15
15 May 2018 hearing................................................................................................................... 17

Plaintiff’s submissions.................................................................................................................... 19

Defendant’s submissions................................................................................................................ 21

Summary judgment application.................................................................................................... 24

Consideration.................................................................................................................................... 25

Conclusion......................................................................................................................................... 30

HIS HONOUR:

Introduction
This proceeding (OM-3)

The plaintiff applies for judicial review under ord 56 of the Supreme Court (General Civil Procedure) Rules 2015 (Rules) for the following relief:[1]

The decision by Magistrate Kiel (sic) on 15 May 2018, to refuse to conduct the hearing of the criminal charges and the order to adjourn the proceedings for another mention, be quashed or set aside and remitted back to the Magistrates’ Court for the fully contested hearing to take place.[2]

[1]By order of Ginnane J made 29 November 2018, the hearing and determination of this proceeding has been referred to me pursuant to r 77.05 of the Rules.

[2]Amended Originating Motion filed 24 August 2018 (emphasis added).

The grounds relied upon by the plaintiff are as follows:[3]
[3]Ibid.

(a) On 15 May 2018, a hearing of the criminal charges was listed to recommence. This was 574 days after I was arrested and 355 days after I was given the first opportunity to plead ‘not guilty’. On 15 May 2018, Magistrate Keil refused to hear the criminal charges and said he would be adjourning the matter to recommence on 21 January 2019, 825 days after I was arrested. The refusal to hold a hearing within 12 months is a breach of s 211 of the Criminal Procedure Act 2009 (Vic).

(b) Despite saying he would relist the hearing to recommence on 21 January 2019, Magistrate Keil made a decision, after the court session had finished, without any party…

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 Austin v Dwyer

Details

AGLC: Austin v Dwyer [2018] VSC 770
Case: [2018] VSC 770
Decision Date: 10 December 2018

CaseChat Overview and Summary

In the matter of Austin v Dwyer, the applicant, Austin, sought judicial review of a decision made by the Magistrates' Court of Victoria. The applicant contended that the decision was flawed and sought relief in the form of a writ of certiorari and mandamus. The case was heard by the Supreme Court of Victoria, which had jurisdiction under the Supreme Court (General Civil Procedure) Rules 2015. The legal issues before the court included whether the Magistrates' Court had jurisdiction to make the decision in question and whether the decision was affected by any errors of law.

The court examined whether the Magistrates' Court had exercised its jurisdiction correctly and whether it had followed the proper legal principles in making its decision. It also considered whether the decision was based on a correct interpretation of the law and whether there were any procedural irregularities that could render the decision invalid. The applicant argued that the Magistrates' Court had made an error of law and that its decision should be quashed. The court had to determine whether the applicant's arguments had merit and whether the relief sought was appropriate.

After considering the submissions and evidence presented, the court found that the application for summary judgment under section 63 of the Civil Procedure Act 2010 was well-founded. The court concluded that the Magistrates' Court had indeed made an error of law and that its decision was flawed. Consequently, the court granted the application for summary judgment and quashed the decision of the Magistrates' Court. The applicant was awarded the relief sought in the form of a writ of certiorari and mandamus.

The court ordered that the decision of the Magistrates' Court be quashed and that the matter be remitted for reconsideration in accordance with the law. The court also directed that the applicant be awarded costs of the application. This outcome provided the applicant with the remedy they sought and ensured that the decision-making process was conducted in accordance with the law.

Orders