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Daher v Bell

Daher v Bell

Case [2021] VSCA 192 29 June 2021

Judicial Review

Natural Justice & Procedural Fairness

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Administrative Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCI 2020 0059

MOUKTAR DAHER	Applicant
v
RYAN BELL (VIC POLICE)	First Respondent
and
COUNTY COURT MELBOURNE	Second Respondent

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JUDGES:	KYROU, KAYE and KENNEDY JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	17 June 2021
DATE OF JUDGMENT:	29 June 2021
MEDIUM NEUTRAL CITATION:	[2021] VSCA 192
JUDGMENT APPEALED FROM:	[2020] VSC 346 (Derham AsJ)

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JUDICIAL REVIEW – Application for leave to appeal refusal to extend time within which to commence proceeding – Whether special circumstances exist to justify extension – Supreme Court (General Civil Procedure) Rules 2015 r 56.02 – Where applicant self-represented – Whether associate justice conducted fair hearing – Dietrich v The Queen (1992) 177 CLR 292 considered – No unfairness – Whether associate justice failed to consider matters relevant to delay – No error established – Leave to appeal refused.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	In person
For the First Respondent	Ms E Ruddle QC	Ms A Hogan, Solicitor for Public Prosecutions
For the Second Respondent	No appearance

KYROU JA
KAYE JA
KENNEDY JA:

The applicant seeks leave to appeal from orders of an associate justice made on 12 June 2020. By those orders, the associate justice refused to extend the time within which the applicant could commence an application for judicial review in respect of an order of a judge of the County Court.[1]
[1]Ryan Bell (Vic Police) was named as a first respondent, and the County Court Melbourne was named as a second respondent to this proceeding. However, given that the County Court did not take an active role in the proceeding, we will refer to the first respondent as the ‘respondent’ in these reasons.

For reasons expressed below, we have determined that leave to appeal will be refused.

Factual background[2]

[2]The factual matters below are largely taken from the associate justice’s reasons: Daher v Bell [2020] VSC 346 (‘Reasons’).

This proceeding relates to an incident which occurred on 3 April 2017 between the applicant and his former partner (‘Ms Mohamed’). Three charges were laid against the applicant in relation to this incident. Two charges concerned damage to property, and the third charge was for an unlawful assault of Ms Mohamed.

On 9 November 2017, a magistrate dismissed the property charges, but convicted the applicant of the unlawful assault charge, and imposed a fine of $1000. The applicant was represented by counsel at this hearing.

By notice of appeal dated 17 November 2017, the applicant appealed against the conviction to the County Court.

A hearing of the appeal subsequently took place on 16 April 2018.[3] At that hearing counsel attended to cross-examine Ms Mohamed (a protected witness), pursuant to court order.[4] In the result, however, counsel undertook the representation of the applicant throughout the hearing (including by advancing submissions on sentence).
[3]The appeal was initially struck out by reason of the applicant’s non-appearance on 7 December 2017. However, the appeal was later reinstated by order of 21 December 2017.
[4]This was pursuant…

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 Daher v Bell

Details

AGLC: Daher v Bell [2021] VSCA 192
Case: [2021] VSCA 192
Decision Date: 29 June 2021

CaseChat Overview and Summary

The applicant, Daher, sought leave to appeal a decision of an associate justice of the Supreme Court, who had refused to grant an extension of time for Daher to commence proceedings against the respondent, Bell. The associate justice had concluded that there were no special circumstances to justify the extension. The application for leave to appeal was brought pursuant to the Supreme Court (General Civil Procedure) Rules 2015 rule 56.02. Daher appeared self-represented before the Court.

The primary legal issue before the Court was whether the associate justice had conducted a fair hearing in accordance with the principles established by the High Court in Dietrich v The Queen. The Court also considered whether the associate justice had failed to consider matters relevant to the delay in bringing the proceeding. The Court needed to determine whether any error had been made by the associate justice in the course of the hearing.

The Court found that there had been no unfairness in the conduct of the hearing, as the associate justice had allowed Daher to present his case and had considered all the submissions made. The Court further found that the associate justice had adequately considered all the relevant matters pertaining to the delay in bringing the proceeding. The Court concluded that there had been no error in the associate justice's decision to refuse the extension of time. Therefore, the application for leave to appeal was refused.

The Court made no orders for costs.

Orders