| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S CI 2014 3546
| DAVID GLASS (A PSEUDONYM) | Plaintiff |
| v | |
| CHIEF EXAMINER | First Defendant |
| - and - | |
| COUNTY COURT OF VICTORIA | Second Defendant |
| - and - | |
| DIRECTOR OF PUBLIC PROSECUTIONS VICTORIA | Third Defendant |
---
JUDGE: | LANSDOWNE AsJ |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 12 September 2014 |
DATE OF JUDGMENT: | 17 October 2014 |
CASE MAY BE CITED AS: | David Glass (a pseudonym) v Chief Examiner & Ors |
MEDIUM NEUTRAL CITATION: | [2014] VSC 507 |
---
JUDICIAL REVIEW – Application for extension of time – Rescission of non-publication direction to enable coercively obtained evidence to be used in a prosecution– Plaintiff contends that rescission ultra vires – Arguable case – Issues of public importance - No adequate explanation for delay – Publication already occurred and no further prejudice to the plaintiff shown - Prejudice to the public interest shown if extension granted – Application refused – Major Crime (Investigative Powers) Act 2004 – r 56.02 Supreme Court (General Civil Procedure) Rules 2005
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ms F Todd | Theo Magazis & Associates |
| For the First Defendant | Mr R Niall QC with Mr A Imrie | Office of the Chief Examiner |
| For the Third Defendant | Mr P D’Arcy | Craig Hyland, Solicitor for Public Prosecutions |
TABLE OF CONTENTS
Introduction......................................................................................................................................... 3
Test for extension of time................................................................................................................. 6
Facts....................................................................................................................................................... 7
Major Crime (Investigative Powers) Act 2004................................................................................. 7
Obtaining evidence from Mr Glass............................................................................................ 8
Application to rescind the direction and confidentiality notice.......................................... 10
Communication of the rescission decision to the plaintiff................................................... 13
Publication of the plaintiff’s evidence..................................................................................... 14
Notification that the plaintiff would be called as a witness................................................. 15
Parties’ submissions and discussion............................................................................................ 17
Delay............................................................................................................................................. 17
Prospects of success.................................................................................................................... 26
Prejudice to the defendants....................................................................................................... 30
Public interest.............................................................................................................................. 31
Injustice or prejudice to the plaintiff and utility.................................................................... 32
Conclusion......................................................................................................................................... 36
HER HONOUR:
Introduction
The plaintiff is known in these reasons by a pseudonym. He seeks judicial review of a decision in 2012 by a delegate of the first defendant the Chief Examiner to rescind[1] a non-publication direction previously made in relation to evidence the plaintiff gave at coercive hearings in 2010. The third defendant was joined in respect of the subsequent publication of that evidence by the Office of the Solicitor for Public Prosecutions to the solicitor for an accused in a criminal trial. In these reasons that accused will be referred to as ‘FD’.
[1]The decision of the Examiner and the authorities to which the parties have taken me principally use the word ‘rescind’ to describe the unmaking of the direction, but on occasion also use the word ‘revoke’. In these reasons, I use ‘rescind’ but intend the words to mean the same.
The originating motion seeking judicial review was filed on 11 July 2014. The non-publication direction was rescinded on 1 August 2012. Rule 56.02 of the Supreme Court (General Civil Procedure) Rules 2005 provides in sub-rule (1) that the time for commencing judicial review…
Keep reading for free
Create a free CaseChat account to read David Glass (a pseudonym) v Chief Examiner and more:
- Read every judgment in full
- Ask AI and get answers linked to paragraphs
- See how each paragraph was cited in later cases
- Download judgments as PDF or Word
One click creates your free account or signs you in.
By continuing you agree to the Terms and Privacy Policy.
- Case
- [2014] VSC 507
- Decision Date
CaseChat Overview and Summary
The legal issues before the court were whether the Chief Examiner's decision to rescind the non-publication direction was ultra vires and whether the application for an extension of time should be granted. The court examined the relevant statutory provisions, specifically the Major Crime (Investigative Powers) Act 2004, and the rules under the Supreme Court (General Civil Procedure) Rules 2005. The court needed to determine whether the Chief Examiner exceeded their powers by rescinding the direction and whether there were grounds to extend the time limit for the application. The court also needed to weigh the potential prejudice to the plaintiff against the public interest in allowing the coercively obtained evidence to be used in the prosecution.
The court found that while Glass had an arguable case and the issues were of public importance, there was no adequate explanation for the delay in bringing the application. The court noted that publication had already occurred, and no further prejudice to Glass was demonstrated. However, the court highlighted that allowing the application would prejudice the public interest by potentially hindering the prosecution based on evidence obtained under duress. The court considered the need to balance the rights of the individual against the broader public interest, ultimately deciding that the application for an extension of time should be refused. The court's decision emphasised the importance of timely applications and the need to protect the public interest in criminal proceedings.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.