Cooper-Baker v His Honour Judge Ross - [2000] VSC 221

SUPREME COURT OF VICTORIA

COMMON LAW DIVISION

Not Restricted

No. 5989 of 1998

ELAYNE JOYCE COOPER-BAKER	Plaintiff
v
HIS HONOUR JUDGE ROSS
and
RICKY DAVID COVE	Defendants

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JUDGE:	Balmford, J.
WHERE HELD:	Melbourne
DATE OF HEARING:	15 May 2000
DATE OF JUDGMENT:	31 May 2000
CASE MAY BE CITED AS:	Cooper-Baker v His Honour Judge Ross
MEDIA NEUTRAL CITATION:	[2000] VSC 221

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Summons on originating motion seeking an order in the nature of certiorari – Charge laid under section 49(1)(e) of the Road Safety Act 1986 – Whether the charge sufficiently described an offence under the Road Safety Act 1986 – Whether there was an error of law on the face of the record - Whether there was a jurisdictional error.

Interpretation of Legislation Act 1984; s 35
Magistrates’ Court Act 1989; ss 26, 27(1), 27(2), 50
Road Safety Act 1986; ss 49(1)(e), 55(1), 55(4)

Adair v Gough (1990) 10 MVR 558
Buzatu v Vournazos [1970] VR 476
Craig v South Australia (1995) 184 CLR 163
DPP v Foster [1999] VSCA 73
Ex parte Lovell; re Buckley (1938) SR (NSW) 153
Franceschini v Melbourne & Metropolitan Board of Works & Ors (1980) 57 LGRA 284
Hammond v Lavender (1976) 11 ALR 371
Hansford v Judge Neesham (1994) 7 VAR 172
Hockey v Yelland (1984) 157 CLR 124
Johnson v Miller (1937) 59 CLR 467
Lambert v McIntyre [1975] QR 349
Pointon v Cox (1927) 136 LT 506
Rejman v Dunsmore (1983) 32 SASR 151

Woolworths (Victoria) Limited v Fred Marsh (Supreme Court of Victoria, Ormiston J, 12 June 1986, unreported)

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr P Billings	David Tonkin & Associates
For the Secondnamed Defendant	Mr CJ Ryan	Peter Wood, Solicitor for Public Prosecutions

HER HONOUR:

This is a summons on originating motion under Order 56 of the Supreme Court (General Civil Procedure) Rules 1996, whereby the plaintiff seeks an order in the nature of certiorari that the order of His Honour Judge Ross sitting in the County Court at Melbourne on 22 May 1998, dismissing the appeal before him and convicting her of a charge under section 49(1)(e) of the Road Safety Act 1986 (“the Road Safety Act”), be removed into this Court and be quashed. The facts are set out in the affidavits of the plaintiff and of Mr Regan, who appeared for the respondent in the proceeding before His Honour. There are differences between the two accounts, and where that is so I have preferred the evidence of Mr Regan, that being the version supporting the decision of the court below. (See Buzatu v Vournazos [1970] VR 476 at 478.) By an order made on 1 June 1998, Mr Justice Mandie granted a stay of the order of Judge Ross until the hearing and determination of the present proceeding or further order.

On 4 June 1997, the plaintiff was convicted in the Magistrates’ Court at Dandenong of an offence under section 49(1)(e) of the Road Safety Act and fined the sum…

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.

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Details

Case: [2000] VSC 221
Decision Date: 31 May 2000

CaseChat Overview and Summary

In Cooper-Baker v His Honour Judge Ross, the applicant, Cooper-Baker, sought an order in the nature of certiorari to challenge a charge laid under section 49(1)(e) of the Road Safety Act 1986. The dispute centred on whether the charge adequately described an offence under the Road Safety Act 1986 and whether there was an error of law on the face of the record or a jurisdictional error. The matter was heard in the Supreme Court of Victoria.

The legal issues that the court needed to decide included whether the charge against Cooper-Baker was properly framed under the Road Safety Act 1986 and if the alleged errors were sufficient grounds for the court to exercise its supervisory jurisdiction. The applicant argued that the charge was insufficiently detailed and thus did not meet the legal requirements for a valid charge under the Act. Furthermore, Cooper-Baker contended that the errors on the face of the record amounted to a jurisdictional error, warranting the intervention of the court.

The court considered the interpretation of the relevant legislative provisions and the applicable legal principles established in prior cases. It found that the charge against Cooper-Baker sufficiently described the alleged offence under the Road Safety Act 1986 and did not contain any errors of law on the face of the record. The court held that the alleged errors did not amount to a jurisdictional error and, therefore, the application for certiorari should be dismissed. The applicant's arguments were not persuasive in light of the relevant legal authorities and the proper construction of the Act.

The final orders of the court were that the application for an order in the nature of certiorari was dismissed, and Cooper-Baker was ordered to pay costs. The court held that the charge laid against Cooper-Baker was valid and did not contain any jurisdictional errors. Consequently, the applicant's challenge to the charge was unsuccessful, and the court did not exercise its supervisory jurisdiction in this matter.

Orders