JUDGE:	Eames J
WHERE HELD:	Melbourne
DATE OF HEARING:	7 December 2001
DATE OF JUDGMENT:	20 December 2001
CASE MAY BE CITED AS:	Flanagan v Remick
MEDIUM NEUTRAL CITATION:	[2001] VSC 507

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Motor vehicles – Charge and Summons issued alleging two offences against repealed subordinate legislation – Whether charge a nullity as failing to comply with requirements of s. 27(1) of the Magistrates’ Court Act 1989 – Amendment permitted by magistrate under s. 50(1) of Magistrates’ Court Act – Amendment made more than 12 months after date of offences – Whether amendment contrary to s. 26(4) – Road Safety (Road Rules) Regulations 1999 – Rule 20 of Road Rules (Victoria) – Regulation 217 of Road Safety (Drivers) Regulations 1999.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr P. Billings	Corrs Chambers Westgarth
For the Respondent	Mr D. Trapnell	Victorian Government Solicitor

HIS HONOUR:

I have before me two appeals on questions of law brought pursuant to s. 92 of the Magistrates’ Court Act 1989. The two appeals relate to two charges heard and determined in the same hearing by a magistrate, and raise essentially the same issue.

On Sunday 5 December 1999 the appellant, Jason Paul Flanagan, was intercepted by the respondent, a police officer, in Malvern Road, Prahran and was charged on a number of traffic offences. Of those offences two are now relevant to this appeal, the proceedings with respect to those offences having been commenced by the filing of a charge and summons on 9 February 2000. On the first count the appellant was charged with exceeding the speed limit, the charge alleging that the offence was contrary to Regulation 1001(1)(a) of Statutory Regulation Number 30 of 1988 (the Road Safety (Traffic) Regulations 1988). The second count alleged a breach of Regulation 225(1) of Statutory Regulation Number 28 of 1988 (the Road Safety (Procedures) Regulations 1988). The first count was an offence of exceeding the speed limit, the second count an offence of failing to display “P” plates.

The matter came on for hearing in the Magistrates’ Court at Melbourne on 13 March 2001 and counsel for the appellant took a preliminary point that the appellant had been charged with breaches of regulations which had been repealed prior to the date of the alleged offences. He submitted that the appellant had, therefore, been charged with offences which were not known to the law. He submitted that the charges were nullities, and should be dismissed.

The Road Safety (Traffic) Regulations 1988 had in fact been repealed on 1 December 1999, four days before the driving incident, and the Road Safety (Procedures) Regulations 1988 were repealed on 1 May 1999, seven months before the…

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 Flanagan v Remick

Details

AGLC: Flanagan v Remick [2001] VSC 507
Case: [2001] VSC 507
Decision Date: 20 December 2001

CaseChat Overview and Summary

The case of Flanagan v Remick involved a defendant, Flanagan, who was charged with two traffic offences under repealed subordinate legislation. The plaintiff, Remick, sought to enforce the charges through the Magistrates’ Court of Victoria. The central dispute revolved around the validity of the charges and summons, specifically whether they complied with statutory requirements and if the subsequent amendment of the charges was lawful. The court was required to determine whether the initial charge and summons were nullities due to non-compliance with section 27(1) of the Magistrates’ Court Act 1989 and whether the amendment of the charges was permissible under section 50(1) of the same act, considering the time elapsed since the alleged offences.

The legal issues before the court included whether the original charges and summons were void due to the repealed subordinate legislation and if the amendment of these charges more than twelve months after the alleged offences was permissible. The court examined the provisions of section 26(4) of the Magistrates’ Court Act 1989 and assessed whether the amendments were within the allowable timeframe. Additionally, the court considered the implications of rule 20 of the Road Rules (Victoria) and regulation 217 of the Road Safety (Drivers) Regulations 1999 in relation to the charges.

The court concluded that while the initial charges and summons were indeed nullities due to the repealed subordinate legislation, the amendment of these charges was permissible under section 50(1) of the Magistrates’ Court Act 1989. The court found that despite the delay in amending the charges, the magistrate had the authority to make such amendments. The court ruled that the amendment did not contravene section 26(4) of the act, as the substance of the charges remained unchanged, and the defendant had not been misled or prejudiced by the delay.

The court's final orders were that the amendment of the charges was lawful and the proceedings could continue. The court did not declare the initial charges and summons to be nullities, allowing the case to proceed on the amended charges.

Orders