Cassim v Dahaby (No 2) - [2025] VSC 69

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…

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 Cassim v Dahaby (No 2)

Details

AGLC: Cassim v Dahaby (No 2) [2025] VSC 69
Case: [2025] VSC 69
Decision Date: 3 March 2025

CaseChat Overview and Summary

In the case of Cassim v Dahaby (No 2), the respondent, Ms Dahaby, sought judicial review of a County Court judgment in a dispute over property and financial claims arising from a de facto relationship. The primary judge found against Ms Dahaby on all counts and dismissed her claim. The Court of Appeal was tasked with determining whether the errors of law identified by Ms Dahaby warranted a remittal of the matter to the County Court for a new hearing, or if the errors were not material enough to warrant such action.

The central legal issue was whether the identified errors of law were material and required a new hearing, or if they were non-material and should be disregarded. Additionally, the Court had to consider whether the matter should be remitted to the County Court for a new hearing before a different judge due to the inadequacy of the reasons provided by the primary judge. The Court also needed to assess if the matter should be remitted to the primary judge for the production of reasons regarding the rejection of Ms Dahaby’s evidence.

The Court of Appeal found that the primary judge had indeed erred in law, and that the reasons provided were inadequate. The errors of law were material, leading to a miscarriage of justice. The Court concluded that the matter should be remitted to the County Court for a new hearing before a different judge. This decision was made to ensure a fair and unbiased hearing, given the deficiencies in the reasons provided by the primary judge and the errors of law that were identified. The Court also noted that remitting the matter to the primary judge for the production of reasons regarding the rejection of Ms Dahaby’s evidence would not be appropriate as it would not address the fundamental issues with the primary judge’s handling of the case.

The final orders of the Court of Appeal were to remit the matter to the County Court for a new hearing and determination by a different judge. This decision ensures that Ms Dahaby’s claims are properly heard and assessed, free from the errors of law and inadequate reasoning that marred the original proceedings.

Orders