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Clark v Ryan

Clark v Ryan

Case [2005] VSCA 311 20 December 2005

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SUPREME COURT OF VICTORIA
COURT OF APPEAL

No. 4529 of 2004

GEOFFREY CLARK	Appellant
v
DETECTIVE SENIOR CONSTABLE C.F. RYAN and THE COUNTY COURT OF VICTORIA	Respondents

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JUDGES:	WARREN, C.J., ASHLEY, J.A., HABERSBERGER, A.J.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	30 NOVEMBER 2005
DATE OF JUDGMENT:	20 DECEMBER 2005
MEDIUM NEUTRAL CITATION:	[2005] VSCA 311

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Judicial Review – Appeal to County Court – Mistake of fact by County Court Judge - Whether jurisdictional error – Finding of fact by County Court Judge after allegedly indicating the topic was not relevant - Whether want of procedural fairness – Appeal dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Ms D.S. Mortimer SC and Ms R. Orr	Coadys
For the Respondent	Mr J.D. McArdle QC and Mr J. Harkess	Solicitor for Public Prosecutions

WARREN, C.J.:

I agree with the reasons for judgment of Habersberger A.J.A. and I would, also, dismiss the appeal.

ASHLEY, J.A.:

In my opinion, even if one was to accept each step in the legal analysis very ably advanced by Ms Mortimer concerning the two grounds of appeal which were ultimately pursued, in neither instance did the facts fit the analysis. Habersberger A.J.A. shows very clearly in his reasons why that is so. Simply on that basis the appeal must be dismissed.

HABERSBERGER, A.J.A.:

This is an appeal from an order made by a judge of the Trial Division dismissing the appellant's application for judicial review of a decision of a judge of the County Court of Victoria, sitting in its criminal appellate jurisdiction at Warrnambool.

The Background

Following certain incidents at the Criterion Hotel in Warrnambool late on the night of 2 May 2002, the appellant, Geoffrey Clark, was charged with 19 offences. The appellant and other members of the local Aboriginal community had been celebrating the fact that, earlier that day, at the Warrnambool race meeting one of the races had been named in honour of Alice Clark, the grandmother of the appellant and a respected Aboriginal elder.

Only five of the 19 charges were proceeded with at the hearing on 28 March 2003 before the Magistrates' Court of Victoria sitting at Warrnambool. The appellant was convicted of two charges, obstructing police contrary to s.52(1) of the Summary Offences Act 1966 and acting in a riotous manner contrary to s.17(d) of the same Act. The remaining three charges were dismissed.

The appellant appealed to the County Court of Victoria pursuant to s.83 of the Magistrates' Court Act 1989. On 3 December 2003, at the end of the prosecution case, the learned County Court judge accepted part of the Prasad[1] submission made by defence counsel and found the appellant not guilty of the charge of riotous behaviour. After hearing evidence from the appellant and two other witnesses, the judge found the appellant guilty of the charge of obstructing police. He was convicted and fined $750.
[1]The Queen v Prasad (1979) 23 SASR 161

By an originating motion filed on 12 February 2004 pursuant to Order 56…

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 Clark v Ryan

Details

AGLC: Clark v Ryan [2005] VSCA 311
Case: [2005] VSCA 311
Decision Date: 20 December 2005

CaseChat Overview and Summary

In the matter of Clark v Ryan, the respondent, Mr Ryan, sought judicial review of a decision made by the County Court, which had dismissed his application for an injunction against the appellant, Ms Clark. The dispute arose from a contentious land use matter in which the County Court had to determine whether an injunction should be granted to prevent the appellant from carrying out certain activities on her property. The Court of Appeal was tasked with reviewing the County Court’s decision on the grounds of alleged jurisdictional error and procedural unfairness.

The central legal issues before the Court of Appeal were whether the County Court had committed a jurisdictional error by making a finding of fact after suggesting that the topic was irrelevant, and if so, whether this constituted a breach of procedural fairness. The respondent argued that the County Court had misapplied the law by making a factual finding after indicating that the matter was not pertinent to the decision. Additionally, the respondent contended that this constituted a failure to afford procedural fairness, as the County Court did not allow him to address the issue properly.

The Court of Appeal found that the County Court had indeed made an error in its approach to the factual matter, but this did not amount to a jurisdictional error. The court held that the County Court’s actions did not deprive it of the power to make a decision; rather, it was an error in the exercise of that power. Furthermore, the Court of Appeal determined that the County Court’s actions did not result in a denial of procedural fairness to the respondent. The court found that the respondent had an adequate opportunity to address the issue and that the error did not materially affect the outcome of the case.

The Court of Appeal dismissed the appeal, affirming the County Court's decision. The appeal was thus unsuccessful, and the original decision of the County Court remained in place.

Orders