Evans v Dziubinski - [2023] ACTSC 312

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	Evans v Dziubinski
Citation:	[2023] ACTSC 312
Hearing Date:	1 November 2023
Decision Date:	1 November 2023
Before:	Baker J
Decision:	(1) The Notice of Appeal dated 29 August 2023 is struck out as incompetent pursuant to r 5172 of the Court Procedures Rules 2006 (ACT).
Catchwords:	APPEAL – PRACTICE AND PROCEDURE – Appeal from an interlocutory decision of the Magistrates Court – Application by the respondent for the proceedings to be struck out as incompetent pursuant to r 5172 of the Court Procedures Rules 2006 (ACT) – jurisdiction of the Supreme Court to hear an appeal from an interlocutory decision – prospects of judicial review of the decision – application granted – Notice of Appeal struck out as incompetent.
Legislation Cited:	Constitution Act 1902 (NSW), s 4 Court Procedures Rules 2006 (ACT), rr 5172 Magistrates Court Act 1930 (ACT), Pt 3, Divs 3.10.2, 3.10.3, ss 207, 272
Cases Cited:	Bloxham v Wyte [2013] ACTSC 151; 278 FLR 365 Canham v ACT Magistrates Court and Jabs [2014] ACTSC 14; 9 ACTLR 84 Davey v Herbst (No 2) [2012] ACTCA 19 Harlovich v Sebbens [2023] ACTSCFC 3 Kirk v Industrial Court of New South Wales [2010] HCA 1; 239 CLR 531 Lacey v Attorney-General of Queensland [2011] HCA 10; 242 CLR 573 Satchithanantham v Folkes [2019] ACTSC 165
Parties:	Tony Michael Evans ( Appellant) Jason Shawn Dziubinski ( Respondent)
Representation:	Counsel Self-represented ( Appellant) E M Roff ( Respondent)
Solicitors Self-represented ( Appellant) ACT Director of Public Prosecutions
File Number:	SCA 48 of 2023
Decision Under Appeal:	Court/Tribunal: ACT Magistrates Court Before: Magistrate Lawton Date of Decision: 15 August 2023 Case Title: Dziubinski v Evans Court File Number(s): CC1293 of 2022

BAKER J:

Introduction

1․On 6 September 2023, the appellant filed a Notice of Appeal relating to a decision of Magistrate Lawton (“the Magistrate”) made on 15 August 2023, in which his Honour declined the appellant’s application for the summary proceedings against him to be struck out, or alternatively, transferred to the Supreme Court of New South Wales.
2․By an application filed on 9 October 2023, the respondent made an application for the appellant’s appeal to be struck out as incompetent pursuant to r 5172 of the Court Procedures Rules 2006 (ACT).
3․For the reasons outlined below, I have determined that the respondent’s application should be granted and the appellant’s appeal should be struck out as incompetent under r 5172 of the Court Procedures Rules.

Procedural history

4․The appellant is charged with a number of offences, including assaulting frontline community service workers and resisting a public official. These events are alleged to have occurred on 2 February 2022, when the appellant was present during a protest at Patrick White Terrace, between the National Library of Australia and Lake Burley Griffin, in Parkes. The prosecution alleges that the appellant struck a police officer near the back of his head, and that he resisted other officers during the exercise…

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 Evans v Dziubinski

Details

AGLC: Evans v Dziubinski [2023] ACTSC 312
Case: [2023] ACTSC 312
Decision Date: 1 November 2023

CaseChat Overview and Summary

The appeal in Evans v Dziubinski was brought by Dziubinski, the respondent in the original matter, challenging an interlocutory decision made by the Magistrates Court. The dispute pertained to an application by Dziubinski for the proceedings to be struck out as incompetent under rule 5172 of the Court Procedures Rules 2006 (ACT). The appeal was heard in the Supreme Court of the Australian Capital Territory.

The central legal issue before the court was whether the Supreme Court had jurisdiction to hear an appeal from the interlocutory decision of the Magistrates Court and whether there were any prospects for judicial review of the decision. The court had to consider the statutory provisions governing appeals and the relevant procedural rules to determine the scope of its appellate jurisdiction. Additionally, the court needed to assess if there were any grounds for granting the application to strike out the proceedings as incompetent.

In ruling on the appeal, the Supreme Court found that it did not have jurisdiction to hear an appeal from an interlocutory decision of the Magistrates Court under the relevant statutory provisions and procedural rules. The court concluded that the appeal was incompetent and had no prospects of success, thereby dismissing the appeal. Consequently, the Notice of Appeal was struck out as incompetent in accordance with rule 5172 of the Court Procedures Rules 2006 (ACT). This decision underscores the limited appellate jurisdiction of the Supreme Court over interlocutory matters from the Magistrates Court.

Orders

Orders of the court

(1) The Notice of Appeal dated 29 August 2023 is struck out as incompetent pursuant to r 5172 of the Court Procedures Rules 2006 (ACT).

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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