Boros v O'Keefe - [2017] VSC 560

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST

S CI 2017 01099

DANIEL BOROS	Plaintiff
v
R T O’KEEFE, JUDICIAL REGISTRAR, DANDENONG MAGISTRATES’ COURT	First Defendant
and
SHELLEY JANELLE BAKER, TRAFFIC CAMERA OFFICE	Second Defendant

---

JUDGE:	RIORDAN J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	18 SEPTEMBER 2017
DATE OF JUDGMENT:	18 SEPTEMBER 2017 (ex tempore)
CASE MAY BE CITED AS:	Boros v O’Keefe
MEDIUM NEUTRAL CITATION:	[2017] VSC 560

---

ADMINISTRATIVE LAW – Order 56 of the Supreme Court (General Civil Procedure) Rules 2015 – Statutory right of appeal from decision of judicial registrar – Denial of natural justice where accused ordered to leave the Court – Power to remove accused from Court considered – King v Abrahams (1895) 21 VLR 343 applied – Certiorari granted.

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	In person
For the Second Defendant	Ms D Karamicov	John Cain, Solicitor for Public Prosecutions

HIS HONOUR:

By originating motion filed on 27 March 2017, the plaintiff brought an application pursuant to O 56 of the Supreme Court (General Civil Procedure) Rules 2015 (‘the Rules’), challenging orders of the first defendant penalising him for exceeding the speed limit in breach of r 20 of the Road Safety Road Rules 2009.

Background

The second defendant (‘the defendant’) alleges that on 31 May 2016 a vehicle driven by the plaintiff – or at least owned by the plaintiff – was detected travelling at 77 kph in a 60 kph zone.

On 7 September 2016, after being issued with an infringement notice, the plaintiff requested a court hearing.

On 17 November 2016, the Charge-Sheet and Summons were issued by the defendant against the plaintiff.

On 19 January 2017, the plaintiff sent documents to the Magistrates’ Court, including a document headed a ‘Notice of Default’, under which he challenged the authority of ‘the legislation relied upon in the prosecution case’. He also included a document headed ‘Notice of No Plea’ and an affidavit that he had affirmed, which he named, ‘Affidavit of Truth’.

On 27 January 2017, the matter came on for hearing before a judicial registrar exercising the jurisdiction of the Magistrates’ Court. The evidence of what occurred at the hearing was as follows:

(a)With respect to the part of the hearing, which was not recorded, the prosecutor in the Magistrates’ Court deposed as follows:
[The plaintiff] did not recognise the jurisdiction of the court and that he had a constitutional argument. The judicial registrar asked the plaintiff if he was going to enter a plea or seek an adjournment. The plaintiff refused to do so and said words to the effect that he did not recognise the court’s jurisdiction. The judicial registrar told the plaintiff he could remain in court and hear the decision or if he wished he could leave the court.

From this point the recorded part of the hearing commences.
(b)The audio recording (for that part of the hearing before the judicial registrar that…

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 Boros v O'Keefe

Details

AGLC: Boros v O'Keefe [2017] VSC 560
Case: [2017] VSC 560
Decision Date: 18 SEPTEMBER 2017 (ex tempore)

CaseChat Overview and Summary

The case of Boros v O'Keefe involved the applicant seeking judicial review of a decision made by the judicial registrar under Order 56 of the Supreme Court (General Civil Procedure) Rules 2015. The dispute centred on the denial of natural justice when the applicant was ordered to leave the courtroom. The Supreme Court of Victoria was tasked with determining whether the judicial registrar had the power to remove the applicant from the court and whether the removal constituted a denial of natural justice. The applicant argued that the decision was unlawful and sought a writ of certiorari to quash the decision.

The court had to decide whether the judicial registrar had the statutory authority to order the applicant to leave the courtroom and if such an order constituted a breach of natural justice. The applicant contended that the order deprived them of the opportunity to be heard and thus contravened the principles of natural justice. The court also needed to consider whether the judicial registrar's power to remove someone from the courtroom was subject to any limitations and whether the applicant's removal was justified under the circumstances. The decision in King v Abrahams (1895) 21 VLR 343 was cited as relevant authority, which established that the court has inherent jurisdiction to control its own process and maintain decorum.

In determining the matter, the court found that the judicial registrar did indeed have the power to order the applicant to leave the courtroom to ensure the proper administration of justice and maintain order. However, the court held that the manner in which the order was executed constituted a denial of natural justice. The applicant was not afforded an opportunity to be heard before being removed, which contravened the principles of procedural fairness. The court granted the writ of certiorari, quashing the decision of the judicial registrar. The court emphasised that while the power to remove someone from the courtroom exists, it must be exercised in a manner that does not deprive the individual of their right to be heard.

Orders