JUDGE:	Derham AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	25 May 2020
DATE OF JUDGMENT:	12 June 2020
CASE MAY BE CITED AS:	Daher v Bell
MEDIUM NEUTRAL CITATION:	[2020] VSC 346

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JUDICIAL REVIEW – Order 56 of the Supreme Court (General Civil Procedure) Rules2015 (Vic)– Application for extension of time within which to commence judicial review proceedings – Special circumstances required – Period of delay, reason for delay, strength of case for judicial review, justice to both parties and the public interest in the finality of litigation to be taken into account in determining if special circumstances made out – Lazarevic v Victoria Police [2015] VSC 13; Lazarevic v Victoria Police [2014] VSC 497; Glass (a pseudonym) v Chief Examiner & Ors (2015) 50 VR 577; Richards v Victorian Magistrates Court (No 2) [2018] VSC 226.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	NA	Self-Represented
For the First Defendant	Mr A Castle	Office of Public Prosecutions

TABLE OF CONTENTS

Introduction........................................................................................................................................ 1

Plaintiff self-represented.................................................................................................................. 2

Background......................................................................................................................................... 4

The grounds for relief....................................................................................................................... 5

Extending time- special circumstances.......................................................................................... 7

Submissions and consideration.................................................................................................... 10

Period of Delay............................................................................................................................ 10

Reason for delay............................................................................................................................... 12

Plaintiff’s prospects of success...................................................................................................... 15

Conclusions....................................................................................................................................... 25

HIS HONOUR:

Introduction

The Plaintiff requires an extension of time to commence this judicial review application pursuant to Order 56 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) (‘Rules’) in respect of the hearing and determination of County Court Appeal AP-17-3028 on 16 April 2018.

The proceeding was commenced by originating motion filed on 30 December 2019. The time limit for commencement of an application for judicial review of an order of a Judge of the County Court (as is this case) under Order 56 is sixty days ‘after the date when grounds for the grant of relief or remedy claimed first arose’. In this case, time started running when the order was made on 16 April 2018. The relief claimed in the originating motion was stated as follows:

I seek to do a Judicial review of the order of Judge Wraight made on the 16/04/2018 case# H11162921. The order was fine of the sum of $1000 without conviction (copy of the order is attached).

In the originating motion, the plaintiff sought an extension of time under r 56.02 of the Rules relying on the special circumstances set out in his affidavit made on 19 November 2019 and filed on 30 December 2019.[1]
[1]The affidavit appears not to be properly made because the jurat does not make clear whether he swore on his oath or affirmed the affidavit. No point was taken regarding the sufficiency of the affidavit and in light of my conclusions it is of no significance to the application.

The summons for directions required…

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 [2020] VSC 346
Case: [2020] VSC 346
Decision Date: 12 June 2020

CaseChat Overview and Summary

The case of Daher v Bell involved the applicant seeking an extension of time to initiate judicial review proceedings. The application was heard by the Supreme Court of Victoria. The applicant, Daher, sought an extension beyond the statutory 28-day period within which to commence judicial review proceedings, pursuant to Order 56 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic). The respondent, Bell, opposed the application on the basis that the delay was unreasonable and there were no special circumstances that warranted an extension.

The primary legal issue before the court was whether special circumstances existed to justify an extension of time. In determining whether special circumstances were present, the court was required to consider the period of delay, the reason for the delay, the strength of the case for judicial review, and the interests of justice and the public in the finality of litigation. The court referred to a number of cases in this regard, including Lazarevic v Victoria Police, Glass (a pseudonym) v Chief Examiner & Ors, and Richards v Victorian Magistrates Court (No 2).

The court found that the applicant's delay was significant, and the reasons provided for the delay were not sufficient to constitute special circumstances. The applicant had failed to demonstrate any exceptional circumstances that warranted an extension of time. The court also noted that the applicant's case for judicial review was not strong, and the delay had caused prejudice to the respondent. Accordingly, the application for an extension of time was dismissed.

The court did not make any orders in relation to the extension of time sought by the applicant. The applicant was therefore required to initiate the judicial review proceedings within the 28-day statutory period.

Orders