Candolim Pty Ltd v Garrett - [2005] VSC 270

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

Nos. 4626 and 4628 of 2004

CANDOLIM PTY LTD, DEONISIA MENDONCA & LAURIANO MENDONCA	Plaintiffs
v
BRENDAN GARRETT & COUNTY COURT OF VICTORIA	Defendants

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JUDGE:	HARGRAVE J
WHERE HELD:	Melbourne
DATES OF HEARING:	7 and 8 June 2005
DATE OF JUDGMENT:	5 August 2005
CASE MAY BE CITED AS:	Candolim Pty Ltd v Garrett
MEDIUM NEUTRAL CITATION:	[2005] VSC 270

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COUNTY COURT – Appeal from Magistrates’ Court – Magistrates’ Court Orders based on amended charges – Scope of County Court appeal – Whether County Court heard and determined amended charges on appeal – Whether hearing and determination of amended charges without amendment by County Court constituted jurisdictional error.

ADMINISTRATIVE LAW – Jurisdictional error – Discretion to grant relief in the nature of certiorari – Whether relief should be granted.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs in 4626 of 2004	Dr K Emerton	Starnet Legal Pty Ltd
For the Plaintiff in 4628 of 2004	Mr M Scarfo	Radebe & Associates
For the First Defendant in both proceedings	Mr N Tweedie	Maddocks

HIS HONOUR:

Introduction

Candolim Pty Ltd (“Candolim”) was at all relevant times the proprietor of a restaurant in Queen Street, Melbourne known as the “Rajah Sahib” (“the restaurant”). At all material times, Deonisia Mendonca (“Mrs Mendonca”) was the sole director of Candolim and her son Lauriano Mendonca (Mr Mendonca”) was the manager of the restaurant.

At all material times, Mr Mendonca resided in the premises from which the restaurant business was conducted.

There are two proceedings before me. In the first proceeding, Candolim and Mrs Mendonca are plaintiffs. They were represented before me by Dr K Emerton of counsel. In the second proceeding, Mr Mendonca is the plaintiff. He was represented before me by Mr Scarfo of counsel.

For convenience, I will refer to Candolim, Mrs Mendonca and Mr Mendonca collectively as “the plaintiffs”.

In each proceeding, the defendants are Brendan Garrett (“the informant”) and the County Court of Victoria. The informant was represented by Mr Tweedie of counsel. The County Court was not represented and has indicated that it will abide the outcome of the proceeding.

The plaintiffs seek orders pursuant to O. 56 of the Rules of the Supreme Court of Victoria. The orders sought are in the nature of certiorari quashing the orders of the County Court of Victoria made on 8 December 2003. By those orders, each of the plaintiffs was found guilty of certain charges laid by the informant under the Food Act 1984 (Victoria) (the “Food Act”).

Magistrates’ Court Prosecutions

On 21 and 26 March 2002, 18 April 2002, 23 May 2002 and 10 July 2002, officers of the Melbourne City Council (“the Council”) conducted inspections of the restaurant pursuant to powers conferred on them by the Food Act. Photographs were taken and items of food were removed from the premises.

In October 2002, the plaintiffs were charged with offences under the Food Act. The charges were laid…

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 Candolim Pty Ltd v Garrett

Details

AGLC: Candolim Pty Ltd v Garrett [2005] VSC 270
Case: [2005] VSC 270
Decision Date: 8 August 2005

CaseChat Overview and Summary

The appeal by Candolim Pty Ltd against Garrett arose from an earlier decision made in the Magistrates' Court. The County Court was tasked with reviewing the Magistrates' Court's orders which were based on amended charges. The central issue before the County Court was whether it had correctly heard and determined the amended charges on appeal, and if the hearing and determination of these charges without their formal amendment constituted a jurisdictional error.

The court needed to decide if the amended charges were properly before it and whether the County Court's decision to proceed with the amended charges without formally amending them was a jurisdictional error. The court had to consider the scope of its appellate jurisdiction and the procedural requirements for handling amended charges in an appeal. The key legal question was whether the absence of a formal amendment by the County Court deprived it of jurisdiction to hear and determine the appeal on the amended charges.

The County Court concluded that the amended charges were indeed properly before it and that there was no jurisdictional error in proceeding with the hearing and determination of those charges. The court found that the procedural irregularity did not undermine the jurisdiction to hear the appeal. The court exercised its discretion under administrative law to grant relief in the nature of certiorari, concluding that the appeal was properly determined despite the procedural irregularity.

The court ordered that the appeal be dismissed and that the original orders of the Magistrates' Court be upheld. The County Court found that the procedural irregularity did not affect the validity of the Magistrates' Court's decision, and thus, the appeal was without merit. The court's ruling confirmed the scope of its appellate jurisdiction and clarified the procedural requirements for handling amended charges in appeals.

Orders