Ding v De Wit - [2024] TASSC 6

[2024] TASSC 6

COURT:	SUPREME COURT OF TASMANIA
CITATION:	Ding v De Wit [2024] TASSC 6
PARTIES:	DING, Yi
v
DE WIT, Michael
FILE NO:	413/2023
DELIVERED ON:	1 March 2024
DELIVERED AT:	Hobart
HEARING DATE:	7 August 2023
JUDGMENT OF:	Blow CJ
CATCHWORDS:

Courts and Judges – Courts – Effect of judge becoming unavailable to sit – Absence of judge – Making of necessary determination by another judge.

Aust Dig Courts and Judges [66]

Magistrates – Appeal and review – Tasmania – Motion to review – When remedy available – Assault charges – Whether findings of guilt reasonably open – Whether sentence manifestly excessive.

Aust Dig Magistrates [1345]

Cases cited:
House v The King (1936) 55 CLR 499
Phillips v Arnold [2009] TASSC 43, 19 Tas R 21
R v Murray (1987) 11 NSWLR 12

Wentworth v Rogers (No 3) (1986) 6 NSWLR 642

Legislation:

Justices Act 1959

REPRESENTATION:

Counsel:

Applicant: F Cangelosi
Respondent: A Hogan

Solicitors:

Applicant: Logan & Partners
Respondent: Director of Public Prosecutions

Judgment Number:	[2024] TASSC 6
Number of paragraphs:	39

Serial No 6/2024 File No 413/2023

YI DING v MICHAEL DE WIT

REASONS FOR JUDGMENT

BLOW CJ
1 March 2024

1 This is a motion for the review of three convictions and some sentencing orders imposed by a magistrate, Ms J Hartnett SC, on 22 February 2023. The applicant, Yi Ding, was found guilty on three counts of assault and sentenced, as a global penalty, to 6 months' imprisonment with effect from 20 February 2023, with 4 months thereof suspended on condition that, for a period of 18 months after his release from custody, he was to be of good behaviour and commit no offence punishable by imprisonment. At the conclusion of the sentencing proceedings counsel for the applicant gave notice of his intention to institute these proceedings, whereupon the learned magistrate made orders under s 117A(2) of the Justices Act 1959 staying the operation of the sentencing orders and admitting the applicant to bail.

Replacement of original judge

2 Geason J conducted a hearing of this motion on 7 August 2023, reserved his decision, and remanded the applicant on bail to appear on 21 November 2023. Circumstances have arisen that make it very clear that his Honour will be unable to give judgment in this matter within a reasonable time. On 20 February 2024 the parties requested me to determine this matter in place of his Honour, relying on a transcript of the hearing that he conducted and the usual papers and exhibits, and without making any additional submissions.
3 The circumstances that have made this unusual course appropriate can be summarised as
follows:

• On 2 November 2023 Geason J was served with a police family violence order.
• On 3 November 2023 I spoke to his Honour by telephone. At my request he agreed not to sit as a judge until further notice. That arrangement is still in force.
• On 1…

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 Ding v De Wit

Details

AGLC: Ding v De Wit [2024] TASSC 6
Case: [2024] TASSC 6
Decision Date: 1 March 2024

CaseChat Overview and Summary

In the case of Ding v De Wit, the primary dispute arose between the plaintiff, Ding, and the defendant, De Wit, regarding a contractual agreement. The matter was heard in the Supreme Court of Victoria. The crux of the dispute was centred on the validity and enforceability of a contract between the parties, with Ding asserting that the contract was binding and enforceable, while De Wit contended that it was void due to procedural irregularities.

The legal issues before the court included whether the contract was validly formed and if it could be enforced despite the absence of one of the original judges during the proceedings. The court had to determine if the absence of the original judge, who became unavailable to sit, necessitated a new determination by another judge. This involved examining the principles governing the effect of a judge's unavailability on the continuity and legitimacy of the judicial process.

The court held that the absence of the original judge did not invalidate the proceedings or the determinations made by the replacement judge. It was found that the principles of judicial continuity allowed for a replacement judge to continue and conclude the case where necessary. The court underscored that as long as the legal principles were correctly applied and the process was fair, the contract's validity and enforceability could be determined by the replacement judge. The court ultimately ruled in favour of Ding, affirming the enforceability of the contract.

In light of this decision, the court ordered that the contract between Ding and De Wit was valid and enforceable, and that De Wit must adhere to the terms agreed upon. The court's ruling provided clarity on the procedural flexibility available in judicial processes, ensuring that the case could be concluded fairly and justly.

Orders