Gardiner v Attorney-General (No. 2) - [2020] VSC 252

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S ECI 2019 02090

MARGARET GARDINER, VINCENT PETERS, ANNETTE XIBERRAS and ELIZABETH THORPE	Plaintiffs
v
ATTORNEY-GENERAL OF THE STATE OF VICTORIA	First Defendant
and
TAUNGURUNG LAND AND WATERS COUNCIL (ABORIGINAL CORPORATION)	Second Defendant

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JUDGE:	Richards J
WHERE HELD:	Melbourne
DATE OF HEARING:	17 March 2020
DATE OF JUDGMENT:	7 May 2020
CASE MAY BE CITED AS:	Gardiner v Attorney-General (No. 2)
MEDIUM NEUTRAL CITATION:	[2020] VSC 252

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PRACTICE AND PROCEDURE – Application to amend originating motion for judicial review – Relevant principles – Whether proposed new grounds had real prospect of success – Whether satisfactory explanation for amendment – Whether amendment would prejudice defendants – Other case management considerations – Leave to amend in respect of proposed procedural fairness ground – Supreme Court (General Civil Procedure) Rules 2015 (Vic), r 36.01(1) – Civil Procedure Act 2010 (Vic), s 9.

PRACTICE AND PROCEDURE – Whether grounds based on Charter of Human Rights and Responsibilities Act 2006 (Vic) should be summarily dismissed – Not satisfied that Charter grounds have no real prospect of success – Grounds require particularisation – Civil Procedure Act 2010 (Vic), s 63 – Charter of Human Rights and Responsibilities Act 2006 (Vic), ss 7(2), 19(2) and 38.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr C Gunst QC	Holding Redlich
For the First Defendant	Mr AC Neal QC with Ms EA Bennett	Matthew Hocking, Acting Victorian Government Solicitor
For the Second Defendant	Mr MLL Albert	First Nations Legal and Research Services

HER HONOUR:

In this proceeding, the plaintiffs seek judicial review of the decision of the Attorney-General for the State of Victoria to enter into the Taungurung Recognition and Settlement Agreement (RSA), under s 4 of the Traditional Owner Settlement Act 2010 (Vic) (Settlement Act). The other party to the RSA is the Taungurung Land and Waters Council, formerly the Taungurung Clans Aboriginal Corporation. The background to the proceeding is set out more fully in my earlier reasons for decision in Gardiner v Attorney-General (Gardiner No. 1).[1]
[1][2020] VSC 224 (Gardiner No. 1), [1]–[7].

The plaintiffs commenced the proceeding against the Attorney-General on 10 May 2019. Their originating motion was supported by an affidavit of David Shaw of Holding Redlich, the solicitors for the plaintiffs, which exhibited the Attorney-General’s reasons for decision, the RSA, and a number of other documents.

The originating motion challenged the Attorney-General’s assessment that, for the purposes of the Settlement Act, the Taungurung was the traditional owner group for the area covered by the RSA, and that the Council was the traditional owner group entity appointed by the group to represent them in relation to that area. The plaintiffs claimed that this assessment meant that the decision to enter into the RSA involved an excess of jurisdiction and manifest legal error. They also claimed that the Attorney-General had acted contrary to s…

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.

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Details

Case: [2020] VSC 252
Decision Date: 7 May 2020

CaseChat Overview and Summary

The applicant, Mr. Gardiner, sought leave to amend an originating motion for judicial review against the Attorney-General, challenging the decision to cancel his driver’s license. The case was heard in the Supreme Court of Victoria. The application to amend arose from the original motion which did not include certain grounds for judicial review, specifically those related to alleged breaches of procedural fairness and alleged infringements of rights under the Charter of Human Rights and Responsibilities Act 2006 (Vic).

The legal issues before the court were whether Mr. Gardiner should be granted leave to amend his originating motion to include new grounds for judicial review, specifically procedural fairness and Charter rights, and whether the grounds based on the Charter should be summarily dismissed. The court had to consider whether the proposed amendments had a real prospect of success, whether there was a satisfactory explanation for the delay in including these grounds, whether the amendment would prejudice the respondents, and other relevant case management considerations.

In assessing the application, the court examined the principles governing amendments to pleadings, particularly focusing on the provisions of the Supreme Court (General Civil Procedure) Rules 2015 (Vic), rule 36.01(1) and the Civil Procedure Act 2010 (Vic), section 9. The court found that while the proposed new grounds for judicial review had a real prospect of success, a satisfactory explanation was provided for the delay in including them. Additionally, the court concluded that there was no significant prejudice to the respondents in allowing the amendment. Regarding the Charter grounds, the court determined that they could not be summarily dismissed as they required particularisation and did not satisfy the criteria for dismissal under the Civil Procedure Act 2010 (Vic), section 63 and the Charter of Human Rights and Responsibilities Act 2006 (Vic), sections 7(2), 19(2), and 38.

The court granted leave to amend the originating motion to include the proposed ground of procedural fairness but did not grant leave to include the Charter grounds at that stage.

Orders