Corrado v Gebhardt - [1999] VSC 35

SUPREME COURT OF VICTORIA

CAUSES JURISDICTION Do not Send for Reporting

Not Restricted

No. 8438 of 1997

GINO DI CORRADO	Plaintiff
v
HIS HONOUR JUDGE GEBHARDT and DIAMONDQUEST PTY.LTD.		Defendants

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JUDGE:	HEDIGAN, J.
WHERE HELD:	Melbourne
DATE OF HEARING:	3 February 1999
DATE OF JUDGMENT:	23 February 1999
CASE MAY BE CITED AS:	Corrado v. Gebhardt & Anor
MEDIA NEUTRAL CITATION:	[1999] VSC 35

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Certiorari - Order 56 Supreme Court Rules - Originating motion - Plea of guilty in Magistrates' Court - County Court on appeal substituting no conviction - No-fine sentence for lower court's conviction and fine.

Procedural fairness - Claim that counsel for prosecution not heard on question of penalty and applicable law rejected - Prosecutor addressing fully dealing with penalty - No right of reply - Judge making clear possibility of reduction in sentence - Prosecution failing to seek right to further address - No unfairness.

Order 56 - Baseless and futile application in attempt to circumvent limitations on right to appeal - Court's discouragement of such application. .

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr K. Armstrong	Victorian WorkCover Authority
For the 2nd Defendant	Mr. A. Halse	Barker Gosling

GINO DI CORRADO
v.
GEBHARDT and DIAMONDQUEST PTY.LTD.

HEDIGAN, J.A.:

This proceeding by way of originating motion and summons on it is brought under Order 56 of the Rules of this Court seeking a remedy in the nature of certiorari quashing orders made by the first defendant in disposition of an appeal made by the second defendant against a penalty imposed on it by the Magistrates' Court at Williamstown on 25th July 1997. As is the practice, the first defendant did not appear on the hearing by me of the plaintiff's application, the Court being notified that he would abide the result.

I briefly describe the background to the County Court hearing which has led to the present application pursuant to Order 56. The respondent (Diamondquest) was a textile company carrying on a business of dyeing and processing textiles and in aid of that process had installed in its factory at Tottenham a brushing machine made in Taiwan. The machine was designed to brush textiles fed into it through revolving rollers which spin at high speed. The machine was unguarded and in December 1995 while attempting to adjust fabric being fed into the machine an employee had his right hand and arm caught by the rollers and drawn into the machine whereby he suffered injury. The injury, whilst by no means trivial, was not in any way catastrophic, the worker being treated at hospital for severe muscle laceration of his arm which required a skin graft. He also had some limitation for a couple of months or so but then returned to work. One charge under the Occupational Health & Safety Act 1985 arising out of this incident was laid against the company which pleaded guilty to that charge. Section 47(2) of the Act provides for a maximum penalty of $40,000. The Magistrates' Court…

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 Corrado v Gebhardt

Details

AGLC: Corrado v Gebhardt [1999] VSC 35
Case: [1999] VSC 35
Decision Date: 23 February 1999

CaseChat Overview and Summary

In the case of Corrado v Gebhardt, the applicant, Corrado, sought to overturn a decision of the County Court in relation to an appeal from a conviction in the Magistrates' Court. The primary issue was whether the applicant had been denied procedural fairness during the appeal hearing, as well as the legitimacy of the applicant's use of an Order 56 application to circumvent the usual appeal process.

The court examined whether the applicant's counsel in the County Court had been denied an opportunity to address the court on the question of penalty and the applicable law. It was found that the prosecutor had fully addressed the court on these matters, and there was no requirement for the prosecution to provide a right of reply. The County Court judge had also clearly outlined the possibility of a reduction in sentence, and it was the prosecution's failure to seek the opportunity to further address the court that led to the issue. The court concluded that there had been no unfairness in the proceedings.

The court also considered the applicant's use of an Order 56 application, which is intended for situations where an application is considered to be without merit. The court found that the application was an attempt to circumvent the limitations on the right to appeal and was therefore considered to be baseless and futile. The court discouraged such applications in the future.

The court dismissed the application, finding that the applicant had not been denied procedural fairness and that the use of the Order 56 application was inappropriate. As a result, the conviction and sentence imposed by the Magistrates' Court, as substituted by the County Court, remained in place.

Orders