Cassim v Dahaby (No 2)
[2025] VSC 69
•3 March 2025
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S ECI 2024 01018
| AHMED KAMIL MOHAMED CASSIM | Plaintiff |
| v | |
| LAUREN DAHABY | First Defendant |
| and | |
| COUNTY COURT OF VICTORIA | Second Defendant |
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JUDGE: | Watson J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 24 February 2025 |
DATE OF JUDGMENT: | 3 March 2025 |
CASE MAY BE CITED AS: | Cassim v Dahaby & Anor (No 2) |
MEDIUM NEUTRAL CITATION: | [2025] VSC 69 |
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PRACTICE AND PROCEDURE – Final relief – Judicial review of County Court judgment – Error of law established – Inadequate reasons provided – Whether relief should be refused because error not material or on discretionary grounds – Whether matter should be remitted to a different judge to be heard and determined – Whether matter should be remitted to the primary judge for the production of reasons regarding the rejection of the plaintiff’s evidence – Matter to be remitted to the County Court for hearing and determination by a different judge.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr D Gurvich KC with Ms N Kaye | Avant Law |
| For the First Defendant | Mr L McAuliffe with Mr R Slattery | Office of Public Prosecutions |
| For the Second Defendant | No appearance |
HIS HONOUR:
In this matter I delivered reasons on 12 February 2025. In those reasons I found that a judge of the County Court had erred in failing to give adequate reasons for her findings that Dr Cassim was guilty of four charges of sexual assault. Based on a review of relevant authorities, I found that the reasons of the County Court (‘Reasons’) were inadequate because they did not contain any relevant discussion of why the evidence of Dr Cassim was rejected (‘the identified error’).
On 24 February 2025 I heard the parties on the question of the relief which should flow from my earlier finding.
At that hearing, Dr Cassim contended that the appropriate remedy in light of my findings was that the orders of the County Court should be set aside and the matter be remitted to the County Court to be heard and determined by a different judge. The first defendant contended that no relief should be granted and that the application should be dismissed with costs.
I invited both parties to address me on the question of whether it was appropriate for me to issue an order in the nature of mandamus requiring the County Court judge to provide reasons for her rejection of the evidence of Dr Cassim. Dr Cassim said it was not. The first defendant said that, if I was not minded to accede to their primary position, relief of that nature would be appropriate.
For the reasons that follow, Dr Cassim’s submissions as to the appropriate remedy should be accepted.
The first defendant says the identified error was not material, in the sense that there was no realistic possibility the decision could have been different if the error had not occurred and so no relief in the nature of certiorari or mandamus should be issued. I accept that if the identified error was not material in that sense, it would be appropriate to refuse Dr Cassim relief. I do not accept that the identified error can be characterised in that way.
One of the central purposes of the obligation to give reasons is to allow the parties and an appellate or reviewing court the opportunity to correct error.0F[1] To say that her Honour’s decision will not change if she gives reasons for her rejection of Dr Cassim’s evidence misses the point. The first defendant accepts that having stated her reasoning for the rejection of Dr Cassim’s evidence it is possible that errors in that reasoning might be disclosed. If that occurred, then the outcome for Dr Cassim might change on review. That is sufficient for the identified error to be material.
[1]Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247, 279 (McHugh JA).
The first defendant then says that even if the identified error was material, I should still refuse relief on discretionary grounds having regard to the following matters:
(a) the limited nature of the identified error;
(b) the primary judge carefully considered all the evidence, provided detailed and nuanced reasons, accepted significant portions of Dr Cassim’s evidence and gave him the benefit of the doubt in significant respects;
(c) the primary judge rejected Dr Cassim’s evidence in respect of the charges of which he was convicted;
(d) there was no challenge made to the judge’s directions, including about Dr Cassim’s evidence;
(e) Dr Cassim did not seek further reasons from the primary judge before seeking judicial review;
(f) Dr Cassim sought no relief in the nature of mandamus seeking further reasons from the primary judge; and
(g) the public interest in the finality of litigation.
I accept that the identified error in the Reasons is limited in nature and I also accept each of the matters set out in paragraphs (b) to (d) above, but the authorities to which I referred in my earlier reasons make it clear nonetheless that the failure to give reasons for the rejection of Dr Cassim’s evidence is significant. The first defendant accepts that the provision of reasons for the rejection of Dr Cassim’s evidence might expose error on the part of the primary judge. Once that proposition is accepted, it is in my view plain that the interests of justice favour the grant of some form of relief and that the features of the Reasons identified in paragraphs (a) to (d) above and the public interest in the finality of litigation do not weigh sufficiently in the balance to decline relief on discretionary grounds.
The first defendant relies on the judgment of Beach JA in Ta v Thompson (‘Ta’),1F[2] where his Honour said:
Further, as has been said, the grant of certiorari is discretionary. In my view, the relief sought by the appellant should, in any event, also be refused on discretionary grounds. … [T]he appellant effectively acquiesced in his Honour determining the matter by reference to whether her Honour accepted the appellant’s evidence. Had there been any doubt about her Honour’s path of reasoning at the time of her Honour’s ex tempore reasons, it would have been (and was) open to the appellant’s counsel (who was counsel of some experience) to seek further reasons or clarification from her Honour. In my view, the appellant’s acquiescence in the delivery of short form reasons of the kind delivered in the County Court in this case tells against the granting of certiorari on discretionary grounds.2F[3]
[2](2013) 46 VR 10.
[3]Ibid 26-27 [83].
The considerations in Ta which lead Beach JA to the conclusion that relief should be refused on discretionary grounds bear little resemblance to this case. Here, there is no suggestion of acquiescence on the part of the accused, nor was there anything remotely approaching a delivery of short form ex tempore reasons. The failure to seek further reasons from the primary judge is not a basis to refuse relief in these circumstances.
I deal with questions relating to the appropriateness of an order seeking further reasons from the primary judge below. As I have determined that course is not appropriate, Dr Cassim’s failure to seek that relief is not a basis on which to withhold the relief he seeks.
In all the circumstances, the first defendant has not established that I should refuse relief on discretionary grounds.
This leaves the question of whether the appropriate remedial response is to issue an order in the nature of mandamus requiring the primary judge to provide reasons for her rejection of the accused’s evidence. Initially I was attracted to this course, but on reflection and for the reasons below, I have determined that it is not appropriate in this case. As will be clear from the below analysis I do not accept, however, Dr Cassim’s contention that there is an overarching principle that remittal to the primary judge is not appropriate in cases involving inadequate reasons given in a criminal proceeding.
In New South Wales the power to remit a case to a different judicial officer is to be exercised ‘sparingly’ and by reference to the interests of justice in the particular case.3F[4] In Western Australia an application to remit to a judge other than the primary judge has been held to involve the proposition that the primary judge is disqualified from hearing the matter because of the reasonable apprehension of bias,4F[5] although later authority makes plain that that is not the only consideration.5F[6] The NSW approach has been applied in the Australian Capital Territory in Wolter v Broomhall,6F[7] a case involving a failure to give reasons in a criminal proceeding where the matter was remitted to the Magistrates’ Court without any direction as to whether the matter should be heard by a different magistrate. In Northern NSW FM Pty Ltd v Australian Broadcasting Tribunal,7F[8] the Federal Court described remittal to a differently constituted tribunal as ‘the ordinary practice’ and said ‘it will generally seem fairer to the parties that the matter be heard and decided again by a differently constituted tribunal’ where the original tribunal had expressed a view upon the facts and its decision had been set aside for error.8F[9]
[4]Broken Hill Cobalt Project Pty Ltd v Lord [2022] NSWCA 271, [159].
[5]Caratti v Mammoth Investments Pty Ltd (No 2) [2018] WASCA 6, [125].
[6]Forrest & Forrest Pty Ltd v Minister for Aboriginal Affairs [2024] WASCA 96, [90].
[7][2023] ACTSC 331, [87]-[89].
[8](1990) 26 FCR 39.
[9]Ibid 42-43 (Davies and Foster JJ, Burchett J agreeing).
The approach in this Court appears to be closer to the approach of the Federal Court and less like the approach adopted in NSW, Western Australia and the ACT (at least in those cases where the given reasons have been held to be inadequate). In Body Corporate Strata Plan No. 4166 & Ors v Stirling Properties Ltd (No. 2) (‘Stirling Properties’),9F[10] Ormiston J stated that in the case of a total absence of reasons the better course was to make an order compelling the delivery of reasons rather than the outright quashing of a decision. His Honour went on to say:
However, where the reasons are partly defective, in the sense that not all issues have been dealt with, then an order compelling delivery of further or better reasons would have an air of unreality about it. Such an order would merely give a tribunal an opportunity to patch up what has been shown to be defective in circumstances where it is more likely the tribunal overlooked the issue altogether.10F[11]
[10][1984] VR 903.
[11]Ibid 912.
The approach in Stirling Properties was adopted by Forrest J in Clarke v National Mutual Life Insurance & Ors11F[12] and Moyston Court Fisheries Ltd v Dr John Malios & Ors12F[13] in relation to failures by medical panels to give adequate reasons.
[12][2007] VSC 341, [70].
[13][2007] VSC 518, [86].
In Dadashy v Scholte,13F[14] the Court could not order the provision of further reasons by the primary judge because he had retired, but Gorton J said that in any event such an order would not have been appropriate because of the effluxion of time14F[15] and, citing Stirling Properties, that:
due to the potential perception that a trial judge being directed to give further reasons may add reasons to justify the conclusion reached, rather than reasons that truly reflect his or her actual reasoning process.15F[16]
[14][2021] VSC 246.
[15]Ibid [37].
[16]Ibid [38].
In Davidson v Fish,16F[17] Pagone J emphasised that the question of appropriate relief ought not be determined by the application of any fixed rule but depended on an evaluation of all the circumstances of the case. In that case, his Honour said that there was no suggestion that the medical panel members if required to give reasons would do anything other than express their reasons accurately when doing so, nor was there any reason to think they would see their task as justifying their previous decision. Nonetheless, his Honour set aside the decision of the medical panel rather than simply order the giving of reasons. Ultimately, whilst expressing the view that remittal to a differently constituted panel might be preferable, his Honour left that matter to the convenor of medical panels.
[17][2008] VSC 32, [14]-[16].
Dr Cassim relied upon other cases for the proposition that ordering reasons from the primary judge would not be appropriate in a criminal case.17F[18] Those were cases where the Court had ordered that the matter be remitted to a different judicial officer but where the issue did not appear to have been considered.
[18]Grabski v Beier [2020] VSC 156; JV v Children’s Court of Victoria & Anor [2023] VSC 656; Makeham v Sheppard [2020] VSCA 242.
In this instance, I am not satisfied that concerns regarding a perception of ‘patch up’ are apposite. I have held that her Honour properly directed herself, considered all the issues she was required to consider and rejected the evidence of the accused. This is not a case where it is more likely that the primary decision-maker overlooked the relevant issue altogether. I would simply be requiring reasons for the rejection of the accused’s evidence. Nor am I satisfied that there is an overarching rule that in appropriate cases remittal to a primary judicial officer could not be ordered in a criminal proceeding – that course found favour in the ACT Supreme Court.
Nonetheless, and on balance, I am not satisfied that merely requiring further reasons is an appropriate remedy. Whilst the rejection of Dr Cassim’s evidence may be described as though it were a discrete issue, that evidence traverses the entirety of the facts underlying the offences. Explaining why his evidence was rejected may involve a lengthy reconsideration of his evidence as well as that of the complainants. There has been a considerable lapse of time since the appeal in the County Court was conducted in August and September of 2023 and the provision of the Reasons in December 2023. An order that the primary judge give reasons for her rejection of the accused’s evidence would require her to give reasons for her decision at that time. That may be possible, but it may not be. At the very least there is a substantial risk that the passage of time may have made it difficult.
Further, setting aside the orders of the County Court and remitting the matter to the primary judge is not, in my view, appropriate in circumstances where her Honour has, as I have found, already made findings adverse to Dr Cassim and has rejected his evidence.
For these reasons, the appropriate remedial course is to set aside the orders of the County Court made on 8 December 2023 and to remit the matter to that Court to be heard and determined by a different judge.
Both parties agreed that in the event I reached this conclusion, the appropriate order was that the first defendant should pay Dr Cassim’s costs. I will make an order to that effect.
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