Freeman v Maher - [2024] VSC 682

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S ECI 2024 03024

DEZI FREEMAN	Plaintiff
v
RACHELLE MAHER	First Defendant
COUNTY COURT OF VICTORIA	Second Defendant

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JUDGE:	Gorton J
WHERE HELD:	Melbourne
DATE OF HEARING:	22 October 2024
DATE OF JUDGMENT:	6 November 2024
CASE MAY BE CITED AS:	Freeman v Maher
MEDIUM NEUTRAL CITATION:	[2024] VSC 682

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PRACTICE AND PROCEDURE – Summary judgment – Plaintiff convicted of driving offences including refusing to provide a sample of oral fluid for testing, mandatory two-year disqualification of licence imposed – Where plaintiff raised self-defence in circumstances including prior interactions with police officers – Where judge found did not act in self-defence, two charges proven – Where plaintiff sought judicial review - Where first defendant (informant) seeks summary judgment of plaintiff’s judicial review proceeding – Whether judge erred in approach to self-defence – Where plaintiff contends bias, lack of procedural fairness, disregard of personal circumstances, breach of federal laws and human rights and ‘draconian’ penalty – Open for judge below to find did not act in self-defence – No discretion not to impose mandatory penalty – No breach of procedural fairness – No breach of any applicable federal laws or human rights - Plaintiff’s application for judicial review has no real prospect of success – Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd (2013) 42 VR 27 – Civil Procedure Act 2010 (Vic) ss 62, 63, 64 – Charter of Human Rights and Responsibilities Act 2006 (Vic) – Road Safety Act 1986 (Vic) ss 49(1)(eb), 55D, 55E – Crimes Act 1958 (Vic) ss 322I, 322K.

JUDICIAL REVIEW – Where plaintiff appealed judicial registrar’s decision to not stay orders of judge below – Supreme Court (General Civil Procedure) Rules 2015 (Vic) ord 56.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Litigant in person
For the First Defendant	Mr E S Dober of counsel	Office of Public Prosecutions
For the Second Defendant	N/A

TABLE OF CONTENTS

A. Introduction.................................................................................................................................. 1

B. The application for summary judgment.................................................................................. 3

B.1The need for care................................................................................................................... 3
B.2An overview of the County Court proceeding................................................................. 3
B.3The County Court’s decision............................................................................................... 8
B.4Mr Freeman’s arguments in this proceeding.................................................................... 9
B.5Should there be summary judgment?.............................................................................. 12
B.5.1The arguments based on self-defence and duress.............................................. 12
B.5.2Abuse of process and natural justice.................................................................... 16
B.5.3Bias............................................................................................................................ 16
B.5.4The validity of the Road Safety Act 1986 and other legislation.......................... 16
B.5.5The heavy penalty................................................................................................... 17
B.5.6 The principle of legality.......................................................................................... 17
B.5.7Section 55E(12) of the Road Safety Act 1986.......................................................... 18
B.5.7Conclusion................................................................................................................ 18

C. The date of the suspension....................................................................................................... 19

D. The appeal against the refusal to grant a stay...................................................................... 19

E. Final remarks and disposition................................................................................................. 19

HIS HONOUR:

A. Introduction

On 17 November 2020, Mr Dezi Freeman, the plaintiff, was charged with speeding, refusing to provide an oral fluid sample for testing,[1] and using a mobile phone while driving.[2] This was alleged to have taken place on 28 September 2020. The charges were heard in…

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 Freeman v Maher

Details

AGLC: Freeman v Maher [2024] VSC 682
Case: [2024] VSC 682
Decision Date: 6 November 2024

CaseChat Overview and Summary

In Freeman v Maher, the plaintiff, Freeman, sought judicial review of a decision by the County Court of Victoria which found that Freeman did not act in self-defence when refusing to provide a sample of oral fluid for testing and imposed a two-year disqualification of Freeman's licence. The first defendant, Maher, sought summary judgment of Freeman’s judicial review proceeding. Freeman contended that the judge below erred in their approach to self-defence and that the penalty was draconian. The second defendant, the Registrar of the Supreme Court of Victoria, sought to stay the judicial review proceeding. Freeman appealed the judicial registrar’s decision. The legal issues for the court to decide were whether the judge below erred in their approach to self-defence, whether there was a breach of procedural fairness, and whether there was a breach of any applicable federal laws or human rights. The court found that the judge below was open to find that Freeman did not act in self-defence and that there was no discretion not to impose the mandatory penalty. The court also found that there was no breach of procedural fairness or any applicable federal laws or human rights. The court held that Freeman’s application for judicial review had no real prospect of success and dismissed the appeal. The court also dismissed the application for summary judgment.
The court found that the judge below was open to find that Freeman did not act in self-defence and that there was no discretion not to impose the mandatory penalty. The court held that the judge below was entitled to find that Freeman’s conduct was not reasonable in the circumstances, and that the penalty was not disproportionate or unjust. The court also found that there was no breach of procedural fairness or any applicable federal laws or human rights. The court held that the judge below did not err in their approach to self-defence and that there was no basis for the plaintiff to contend that the penalty was draconian. The court held that the application for judicial review had no real prospect of success and dismissed the appeal. The court also dismissed the application for summary judgment. The court held that the plaintiff’s arguments were not sufficient to establish a real prospect of success and that the application for judicial review was an abuse of process. The court held that the application for summary judgment was premature and that the proceedings should continue.

Orders