JUDGE:	Tsalamandris J
WHERE HELD:	Melbourne
DATE OF HEARING:	17 February, 29 March, 3 April 2023 (last written submission received 11 April 2023)
DATE OF JUDGMENT:	19 May 2023
CASE MAY BE CITED AS:	Ewins v Ablett
MEDIUM NEUTRAL CITATION:	[2023] VSC 261

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ADMINISTRATIVE LAW – Judicial review – Application for judicial review of decision of County Court on appeal from Magistrates’ Court – Plaintiff convicted of one charge of aggravated assault – Application to rely on additional documents – Order 56 – Relief sought in the form of certiorari – Whether error of law or denial of procedural fairness – Whether inadequate reasons – Application dismissed – Supreme Court (General Civil Procedure) Rules 2015, O 56 – Criminal Procedure Act 2009 (Vic) – Craig v South Australia (1995) 184 CLR 163 – Kirk v Industrial Relations Commission (2010) 239 CLR 531 – Public Service Association of South Australia Inc v Industrial Relations Commission of South Australia & Anor (2012) 249 CLR 398 – Conway v The Queen (2002) 209 CLR 203 – O’Connor v County Court of Victoria & Anor (2014) 67 MVR 66 – Goldbergv Walter [2009] VSC 260 – R v Farquharson (2009) 26 VR 410 – Anile v The Queen [2018] VSCA 235 – Roberts v The Queen [2020] VSCA 277 – Fletcher Construction Australia Ltd v Lines Macfarlane & Marshall Pty Ltd (No 2) (2002) 6 VR 1 – Ta v Thompson [2013] VSCA 344.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr D Perkins, solicitor
For the First Defendant	Ms R Harper	Office of Public Prosecutions
For the Second defendant	No appearance

HER HONOUR:

Introduction

The plaintiff, Mr Ewins, seeks judicial review of a County Court decision on appeal, in which he was convicted of one charge (the charge) of aggravated assault upon the complainant. The plaintiff’s application is made pursuant to Order 56 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) (the Rules). The first defendant to the proceedings is the informant to the charge, Senior Constable Stephen Ablett.

By way of originating motion, the plaintiff seeks the following relief:

(a) An order in the nature of certiorari to quash the decision of his Honour Judge M Bourke of the County Court (the judge) that the plaintiff was guilty of the charge;

(b) A declaration that the County Court appeal was not in conformity with the plaintiff’s statutory right to a rehearing de novo; and

(c) A declaration that the judge’s reasons were materially insufficient and did not fulfil the court’s obligation to provide reasons pursuant to the Administrative Law Act 1978 (Vic).

The matter was originally listed for hearing on 17 February 2023. Prior to this, the parties had exchanged…

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 Ewins v Ablett

Details

AGLC: Ewins v Ablett [2023] VSC 261
Case: [2023] VSC 261
Decision Date: 19 May 2023

CaseChat Overview and Summary

The plaintiff, Ewins, sought judicial review of a decision made by the County Court of Victoria, which had upheld an appeal from the Magistrates’ Court in a criminal case where Ewins was convicted of one charge of aggravated assault. The application for judicial review sought to rely on additional documents that were not available at the time of the original proceedings. The application was made under Order 56 of the Supreme Court (General Civil Procedure) Rules 2015, seeking relief in the form of certiorari on the basis of an alleged error of law or denial of procedural fairness, and the provision of inadequate reasons by the County Court. The court was required to determine whether the application met the criteria for judicial review and whether the reasons provided by the County Court were adequate.

The court considered whether the application was made within a reasonable time and whether the additional documents could have reasonably been produced earlier. The court examined the reasons given by the County Court for dismissing the appeal and assessed whether they were adequate. It considered the principles established in cases such as Craig v South Australia, Kirk v Industrial Relations Commission, and Public Service Association of South Australia Inc v Industrial Relations Commission of South Australia & Anor, which provide that the court should not substitute its own decision for that of the original decision-maker unless there has been a denial of procedural fairness or an error of law. The court also referenced cases such as Conway v The Queen, O’Connor v County Court of Victoria & Anor, Goldberg v Walter, R v Farquharson, Anile v The Queen, Roberts v The Queen, Fletcher Construction Australia Ltd v Lines Macfarlane & Marshall Pty Ltd, and Ta v Thompson, to further inform its reasoning.

The court found that the application did not meet the criteria for judicial review. The reasons provided by the County Court were deemed adequate, and the court held that there was no error of law or denial of procedural fairness. The court also found that the application was not made within a reasonable time, and the additional documents could have been produced earlier. Therefore, the application for judicial review was dismissed. The court did not make any further orders.

In conclusion, the court dismissed the application for judicial review, finding that the reasons provided by the County Court were adequate, and there was no error of law or denial of procedural fairness. The application was also not made within a reasonable time, and the additional documents could have been produced earlier.

Orders