Giurina v McIlroy

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S ECI 2022 03167

ERMANNO GIURINA	Plaintiff
v
ANNA LOUISE McILROY & ANOR (according to the attached Schedule)	Defendants

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JUDGE:	Tsalamandris J
WHERE HELD:	Melbourne
DATE OF HEARING:	3 March 2023 (last submissions received 15 March 2023)
DATE OF JUDGMENT:	17 May 2023
CASE MAY BE CITED AS:	Giurina v McIlroy & Anor
MEDIUM NEUTRAL CITATION:	[2023] VSC 236

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ADMINSITRATIVE LAW – Judicial review – Application for judicial review of decision of County Court on appeal from Magistrates’ Court – Plaintiff convicted of 63 charges of theft – Order 56 – Relief sought in the form of certiorari – Whether error of law on the face of the record or unreasonableness – Whether new evidence should be admitted – Application dismissed – Supreme Court (General Civil Procedure) Rules 2015, O 56 – Crimes Act 1958 (Vic) – Craig v South Australia (1995) 184 CLR 163 – Agar v McCabe (2014) 67 MVR 81 – Minister for Immigration and Border Protection v Eden (2016) 240 FCR 158 – O’Connor v County Court of Victoria & Anor (2014) 67 MVR 66 – Mackenzie & Ors v Head, Transport for Victoria & Ors [2021] VSCA 100.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	The plaintiff in person
For the First Defendant	Ms A Moran	Office of Public Prosecutions
For the Second Defendant	No appearance

HER HONOUR:

Preliminary

The plaintiff, Mr Giurina, seeks judicial review of a County Court decision convicting him of 63 charges of theft. His application is made pursuant to Order 56 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) (the Rules).

The 63 charges were in relation to the plaintiff’s alleged theft of funds from an owners corporation bank account, occasioned predominantly by withdrawals from automatic teller machines (ATMs) between 6 December 2010 and 25 December 2011 (the period). During the period, the plaintiff was the manager of the owners corporation[1] of a residential block of units located in Coburg North. The amount subject to the theft charges which was withdrawn in the period totalled $13,396 (the monies).
[1]Owners Corporation No. 1579, which was an entity operating under the Owners Corporations Act 2006 (Vic).

The plaintiff accepts that he withdrew the monies from the ATMs, but denies that he did so with dishonest intent, and also denies that he intended to permanently deprive the owners corporation of the monies. The plaintiff defended the charges on the basis that he believed he was entitled to access the monies, as he claimed the owners corporation owed him money for both a loan debt, and a legal es debtfe.

On appeal in the County Court, Judge Hannebery (the judge) convicted the plaintiff as he was satisfied that the prosecution had proved each charge beyond reasonable doubt. That is, his Honour was satisfied that at the time the plaintiff withdrew the money, he was dishonest in that he knew that he had no lawful entitlement to the money, and he intended to permanently deprive the owners corporation of the monies.

The plaintiff is self-represented. As I understand the prayer for relief in his originating motion, the plaintiff seeks an order in the nature of certiorari to quash the decision of the judge, together with an order in the nature of mandamus finding him not guilty of the charges.[2] The plaintiff claims that the judge erred in finding him guilty of the 63 charges on the basis of 20 grounds of review. Many of those grounds raised allegations which referred to unreasonableness. Other grounds alleged errors of law in respect of the elements of theft.
[2]In his Originating Motion dated 16 August 2022, the plaintiff also sought orders requiring the first defendant to return documents seized pursuant to a warrant executed on 7 February 2013; and an order that News Corp and all its employees, agents and contractors as applicable and any other relevant internet browser company remove from the internet and from all forms of social media any reference to the orders which were made by the Magistrates’ Court on 16 December 2020 and details of proceeding Dl0392581. As the subject matter of those two proposed orders is not the subject of this judicial review, and the plaintiff was unable to persuade me as to there being any basis for me to make such orders, I need not deal with either matter in this judgment.

The first defendant, the informant to the charges, urged me to dismiss the application on the basis that the plaintiff was effectively seeking merits review and there was no error by the judge to justify the orders sought. The second defendant, the County Court of Victoria, did not participate in the proceedings.

At the commencement of the hearing, the plaintiff sought to adduce further evidence, as he claimed this was necessary to avoid a miscarriage of justice. I refused this request, and indicated that I would provide my reasons for the refusal in my judgment.

For the reasons that follow, I am not satisfied that an order for certiorari or mandamus should be granted and I dismiss the application.

Background to the charges

In order to understand the charges, the judge’s reasons, the plaintiff’s grounds of review, and the conclusions I have reached in this proceeding, I set out the below summary of the background facts relevant to this proceeding.[3] Where a fact is in dispute, it is so identified.
[3]The court book in this matter was 1625 pages, with no paginated index. Neither party provided the court with a succinct chronology of relevant background facts.

There were 5 members of the owners corporation (the lot holders), each of whom owned units located at 5 Headley Street, North Coburg (the property) during the period. They were:

(i) Russel Ward – units 1 and 6;

(ii) Gabrielle New - unit 2;

(iii) Maria Ricotta - unit 3;

(iv) The plaintiff, as executor of the estate of the owner of unit 4; and

(v) Maria Picone - unit 5.

The lot holders were required to pay quarterly fees, an annual contribution for insurance, and occasional one-off levies as payment for ad hoc expenses.

The plaintiff was appointed as the manager of the owners corporation on 12 December 2004, and remained the manager of the owners corporation during the period.[4] The former owners corporation manager was Mr John Gourley.
[4]On 31 December 2007, the Owners Corporations Act came into force, at which time Body Corporate Strata Plan No. 1579 became known as Owners Corporation No. 1579. For simplicity, throughout this judgment I refer to this entity as the owners corporation, as nothing turns on the legal name of the entity at any given time.

The following facts in relation to the loan debt are in dispute. First, the plaintiff claimed that, for a 14 year period from 1988 to 2002, he paid annual insurance contributions on behalf of 2 lot holders in the amount of $500 each – being his late grandmother, and Mrs Nina Kronas who, at that time, was the lot holder of unit 2. Second, the plaintiff claimed that he paid tradesmen who did work for the owners corporation on odd occasions during that period. Third, the plaintiff claimed that the amount he had paid totalled $14,715. However, the plaintiff gave evidence in the appeal that Mr Gourley subsequently considered that a sum of $18,000 was ‘fair and reasonable’ for what the plaintiff had paid. Fourth, the plaintiff said that at a meeting of the owners corporation held on 20 October 2002 between Mr Gourley, Mrs Kronas, and his late grandmother, it was agreed that the sum of $18,715[5] was owed to the plaintiff, and the terms of the loan debt were also agreed at that meeting. According to the plaintiff, a term of the loan debt was that interest was to be calculated daily at a rate of 10% per annum.
[5]The plaintiff referred to a sum of $18,000 in his oral evidence before the judge, whereas the document he relied upon dated 20 October 2002 referred to the sum of $18,715.

Relevant to the legal fees debt, the plaintiff relied upon minutes of a meeting of the owners corporation on 11 August 2002 (attended by Mr Gourley, the plaintiff, his grandmother, and Mrs Kronas) which indicated that the owners corporation resolved to appoint the plaintiff as the owners corporation’s ‘solicitor for fee and reward’. This claimed fact is in dispute.

In approximately 2007, the owners corporation submitted a claim to Moreland City Council[6] for damage to the property caused by tree roots on the nature strip. On 23 June 2011, the council offered to pay the owners corporation a sum of $7,000 to resolve the claim. This offer was accepted and on 19 August 2011, the council deposited that sum to the owners corporation bank account.
[6]Now known as the Merri-bek City Council, as of September 2022.

In about 2010, the stormwater pipes and concreting around the mailboxes at the property required repair work. The owners corporation contracted with the Johns Lyng Group (JLG) to perform the repair work. The lot holders were each required to pay $2,000 as a levy to cover the cost of such work.

The repair work was undertaken in October 2010. The plaintiff signed a certificate of satisfaction upon completion of the repair work on 28 October 2010. However, the plaintiff claimed he was not actually satisfied with the repair work, but had signed the certificate to help out the contractor (who he understood had family problems) to ensure the contractor would be paid promptly.

On 8 November 2010, the plaintiff wrote a letter to JLG in which he complained that the repair work had not been carried out in a proper and workmanlike manner.

JLG was not paid immediately upon completion of the repair work. JLG subsequently appointed solicitors to seek to recover payment for the repair work. On 4 March 2011, those solicitors sent a letter of demand to the owners corporation in respect of money owed under the contract for repair work.

In 2010, a permit application was made to the council in respect of a development of six dwellings adjacent to the property. The plaintiff, on behalf of the owners corporation, lodged an application at the Victorian Civil and Administrative Tribunal (VCAT) challenging the permit allowing this development (the VCAT proceedingsplanning ). Those proceedings were heard at VCAT on 8 June 2011.

The plaintiff claims that, prior to issuing the VCAT planning proceedings, he informed the lot holders at an owners corporation meeting in late 2010 or early 2011 that he would charge legal fees for his work associated with such proceedings, and he estimated his costs would be between $15,000 and $20,000. These claimed facts are in dispute.

The plaintiff subsequently sought to claim legal fees from the owners corporation in respect of the legal services he purportedly provided in relation to the VCAT planning proceedings. The claimed legal fees debt (based on the bill provided to the owners corporation on 29 July 2011) totalled $9,650.

On 24 July 2011, an owners corporation meeting occurred. What was discussed at the meeting is in dispute, however the plaintiff conceded that there was discussion about removing him as manager and appointing an external owners corporation manager.

On 29 July 2011, the plaintiff claimed that he issued himself a receipt for $4,500 for a cash payment from the owners corporation which he said was part of the balance for reduction of one of the loans owed to him. The plaintiff said that he was holding $4,500 in cash, which he had accumulated over time on behalf of the owners corporation, and had been kept by him in satchels.

At some time after the meeting on 24 July 2011, VCAT proceedings were lodged to remove the plaintiff as manager of the owners corporation (the VCAT removal proceedings). During the hearing of those proceedings on 1 May 2012, the plaintiff gave evidence. In the absence of bank statements of the owners corporation bank accounts, the plaintiff was cross-examined in respect of the balance of the account at that time. The plaintiff said that the balance was ‘[r]oughly about four and a half thousand.’

At the conclusion of those proceedings, VCAT Deputy President Lulham ordered that the management agreement between the owners corporation and the plaintiff be terminated, and that the plaintiff return all records which he held on behalf of the owners corporation, and all funds of the owners corporation held or controlled by him.

Records of the owners corporation bank account subsequently revealed that there was not $4,500 in the bank account at the time the plaintiff gave his evidence at the VCAT removal proceedings. When the plaintiff was asked to explain this in the appeal, he claimed that he had misunderstood the question being asked of him at VCAT, and thought it was a reference to the cash being held by him on behalf of the owners corporation.

As the plaintiff was alleged to have failed to provide all the records to the owners corporation in accordance with the above mentioned VCAT order, contempt proceedings were brought against him (VCAT contempt proceedings). These proceedings were heard by Vice President McNamara in March 2013, and in addition to the contempt allegations, an accusation was made that the plaintiff lied when he had previously given evidence that there was $4,500 in the owners corporation bank account. The contempt proceedings were ultimately dismissed on the basis that the Vice President was not satisfied of the contempt beyond reasonable doubt.

The charges

The sections of the Crimes Act1958 (Vic) relevant to this judicial review are as follows:

72 Basic definition of theft
(1) A person steals if he dishonestly appropriates property belonging to another with the intention of permanently depriving the other of it.
(2)A person who steals is guilty of theft; and “thief” shall be construed accordingly.

73 Further explanation of theft
(1) This section has effect as regards the interpretation and operation of section 72 and, except as otherwise provided in this Division, shall apply only for the purposes of that section and not otherwise.
(2) A person’s appropriation of property belonging to another is not to be regarded as dishonest—
(a)if he appropriates the property in the belief that he has in law the right to deprive the other of it, on behalf of himself or of a third person; or
(b)if he appropriates the property in the belief that he would have the other’s consent if the other knew of the appropriation and the circumstances of it; or
(c)(except where the property came to him as trustee or personal representative) if he appropriates the property in the belief that the person to whom the property belongs cannot be discovered by taking reasonable steps.

…

Annexed to this judgment is Annexure A, which details the particulars of each of the charges the subject of this judicial review, including the charge number, the date, location and amount of the withdrawal.

The plaintiff admitted to each of the withdrawals. He contended that the withdrawals made in respect of charges 119-144 related to the loan debt, and the withdrawals made in respect of charges 145-176 and 178-182 related to the legal fees debt (together these totalled 63 charges).

In the appeal, the plaintiff was cross-examined as to the circumstances of the withdrawals. To give context to the judge’s reasons, I shall detail an example of four withdrawals made by the plaintiff on 8 July 2011. Each of the withdrawals were from ATMs at the Browns Corner Hotel in Coburg at various times over the course of the day. The plaintiff said it was his modus operandi to make small, frequent withdrawals. The plaintiff said he could not recall knowing that there was an additional charge of $2 when withdrawing money from an ATM within a hotel. The plaintiff denied that he spent the money at the hotel, and instead said that he believed he had entered the hotel on four separate occasions over the course of the day to use its toilet facilities as there were no decent public toilets in Coburg at that time.

Magistrates’ Court proceedings

On 16 March 2020, after a contested hearing in the Heidelberg Magistrates’ Court, the plaintiff was convicted of the 63 charges of theft identified in Annexure A.

On 16 December 2020, Magistrate Tregent sentenced the plaintiff to be imprisoned for three months, and ordered that he pay compensation to the owners corporation in the sum of $13,396.

County Court proceedings

The plaintiff appealed the Magistrate’s conviction and sentence to the County Court of Victoria.[7] The appeal was heard by way of hearing de novo over the course of 11 days in June 2022.
[7]Pursuant to s 254 Criminal Procedure Act 2009 (Vic).

Oral evidence was given by the following witnesses: Russell Ward, Gabrielle New, Maria Ricotta (lot holders as identified above), Maria Deak (director of Strata Connect Pty Ltd, the subsequent manager of the owners corporation), Leah Touloupas (accounts-receivable manager of JLG), the first defendant (the police informant), Detective Senior Constable John Cheyne (corroborator of police informant), and the plaintiff.

Further, recordings and transcript of evidence given by Maria Picone (lot owner) and Avinash Sharma (ANZ bank representative) in the Magistrates’ Court proceedings were tendered in the appeal. Additionally, the plaintiff tendered documents in support of his claim that he had an entitlement to the monies under the loan debt and the legal fees debt.

Judge’s reasons for conviction

On 30 June 2022, the judge convicted the plaintiff of the 63 charges. His Honour’s reasons were read in court and subsequently transcribed. I set out below those parts relevant to this judicial review.

There was no dispute that the plaintiff withdrew the monies from the owners corporation bank account on each of the 63 occasions. What was in dispute, however, was whether the prosecution had established beyond reasonable doubt the following elements:

(a), that the money was property belonging to a person other than the [plaintiff]; (b), that the money was taken with an intention to permanently deprive the [owners corporation]; and that (c), that the [plaintiff] was dishonest, in that he did not believe that he had a legal right to the money.

In respect of the first element, the judge held there was uncontested evidence that the money was in the owners corporation bank account prior to its withdrawal by the plaintiff. His Honour then outlined the plaintiff’s contention that the money was his:

… because he was owed a debt, either for monies previously owed or for legal services provided, this created a kind of lien that, in fact, altered the legal status of the money in the account such that it could no longer be considered other than his. I reject this proposition. This element of the offense is made out (Reasons at T769.30-770.5).

In respect of the second element, the judge said as follows:

… the [plaintiff] contended that, because, on his own evidence he was taking [the monies] out with an intention to pay other [owners corporation] fees as they arose later, the prosecution could not contend that at the time, he took the cash in the account that he was intending to deprive the [owners corporation] of the money.
Whilst to some extent this is a matter for a conclusion on the evidence, as a matter of law, I consider that the removal of the cash from the ATM could be considered to be usurping the right to the owner and, as such, constituting an intention to permanently deprive, if it was concluded that it was not withdrawn for a purpose legitimately related to the administration of the corporation.

The judge stated that 'the element really in dispute in this case is that of dishonesty.’ His Honour noted that the plaintiff contended, both in his record of interview and in giving evidence, that on each occasion he withdrew money he believed that he had a lawful right to do so. Further, the plaintiff contended his lawful right arose in two ways – the loan debt and the legal services debt.

The judge acknowledged there was no dispute on the evidence that, as manager of the owners corporation, the plaintiff was authorised to use the owners corporation bank account, including withdrawing money from an ATM to tend to the legitimate expenses of the corporation. His Honour then observed that the plaintiff did not contend that any of the transactions ‘were done for the purpose of paying a specific invoice incurred in the legitimate business of the owners corporation.’ His Honour then considered that ‘[t]he documentary evidence, namely the absence of any invoices or receipts of this nature over the relevant period, suggest that this particular innocent explanations (sic) for the withdrawals can be excluded.’

The judge then stated:

I considered the evidence given by the [plaintiff] about his belief in his right to withdraw money as he pleased, to be improbable in the extreme. Common sense would suggest that the [owners corporation] would be unlikely to enter into arrangements in relation to a debt or legal services of the nature described by the [plaintiff].
In relation to the [plaintiff’s] claim that there existed a debt of apparently over $45,000 in his favour as at 2011. The [plaintiff] claims that this arose because of his payment over a number of years of the contributions that would otherwise have been made to the [owners corporation] by a [lot] holder who has since died. It is entirely unclear as to how - even if it cannot be excluded - that the [plaintiff] was paying the contributions of the [lot] holder as he says, that this became a debt owed by the [owners corporation] itself. That proposition is inherently illogical. If anything, the debt was a personal one from the now deceased [lot] holder to the [plaintiff]. The likelihood that a previous manager of the [owners corporation] would have made such arrangements, as has been claimed, is deeply improbable. (Reasons at T772.24-773.13)

His Honour went on to comment that:

‘…the alleged terms on which this debt arrangement were (sic) made are so favourable to the appellant as to defy belief.’ (Reasons at T773.14-773.16)

The original sum the plaintiff claimed to have been owed for the loan debt was $18,000 (although the judge noted that the exact amount varied somewhat throughout the course of the plaintiff’s evidence). Further, his Honour stated that, according to the plaintiff, the owners corporation had allowed interest to accumulate on that debt at a rate substantially greater than inflation between 2002 and 2010.

The judge noted that, on the evidence of some of the lot holders, the existence of the loan debt, which was ‘by some substantial margin purportedly the largest liability of the body corporate’ was ‘apparently unknown’ to them. His Honour observed that:

This was a debt of tens of thousands of dollars, for a body corporate for a group of five units in Coburg North, whose fees were between 50 and 70 dollars quarterly. The evidence of the unit holder witnesses was that contributions above this quarterly amount were for specific purposes, when required. The concept that a debt of this nature and this amount, that permitted the [plaintiff] to withdraw money from the account as he pleased, was in existence and approved of by the members of the body corporate is fanciful.

His Honour went on to state that:

The only evidence for the existence of this debt comes from the [plaintiff] himself. The documents purporting to be supportive of the existence of these arrangements can be dismissed as providing any type of corroboration for the [plaintiff’s] evidence. The documents' existence prior to the actual transactions the subject of this appeal is absolutely unverifiable. (Reasons at T774.5-11)

Although the judge did not expressly conclude that the plaintiff had fraudulently created any of the documents, his Honour simply stated he did not regard any document relied upon by the plaintiff to be an impediment to him dismissing the plaintiff’s evidence on those matters as untruthful.

Thereafter, the judge stated that:

There is no documentation that suggests there has been any accounting whatsoever to calculate the amounts of any [monies] owed to the [plaintiff] or the interest accruing on those debts. It seems extraordinary that some record of this nature did not exist if in fact both of those sources of money owed to the [plaintiff] had been applicable at the time of the offending. (Reasons at T774.18-774.24)

His Honour was ‘more persuaded that the consistent evidence of the [lot] holders of their ignorance about these debts’ was a ‘true reflection of the situation’. Further, his Honour found it ‘highly improbable that the debt existed at all.’

In relation to the plaintiff’s evidence that he had a legal right to withdraw money from the owners corporation account as he pleased, the judge stated:

… I reject the [plaintiff’s] evidence that he believed that he had a legal right to take the money. On his account, the owners corporation bank account operated essentially as a credit card from which he could draw at any time. This is entirely inconsistent with the evidence from the [lot] holders that any money over and above the quarterly fees was deposited for a specific purpose that was discussed in advance of the deposit of funds.
In this case, I accept the evidence of the [lot] holders that one such purpose for which money was requested and then deposited into the owners corporation account was the works to be done by [JLG] to repair damage to the stormwater drains. Such a conclusion is consistent with the documentary evidence which shows invoices from [JLG] for that purpose, and later a certificate of satisfaction, signed by the [plaintiff] himself, confirming that such work had been satisfactorily completed. (Reasons at T774.29-775.16)

In view of those matters, the judge rejected the evidence of the plaintiff in respect of the loan debt, together with his claim that it provided him with a lawful right to withdraw money.

In respect of the legal fees debt, the judge found the plaintiff’s evidence as to his belief in a legal right to withdraw money for that claimed debt, ‘even less probable.’ In reaching this conclusion, the judge noted the following:

(a) In circumstances where the plaintiff was working in a voluntary capacity as manager of the owners corporation, it was improbable that it would engage that manager, who was otherwise working without fee, to start charging the owners corporation for legal work on its behalf;

(b) There was no evidence that the plaintiff had any particular expertise in the legal fields that might be considered of most interest to the owners corporation; and (Reasons at T775.24-776.3)

(c) The plaintiff did not have a practising certificate during some of the periods in which he was purportedly engaged as the legal representative of the owners corporation. (Reason at T776.4-776.8s)

Irrespective of the improbability of the plaintiff being engaged as a lawyer by the body corporate in the way claimed, the judge considered it even less likely the plaintiff was:

engaged on terms where he could set his own fees and then recover those fees at a time, place and in an amount of his choosing. Such an arrangement simply defies logic, and I reject that any such arrangement existed. (Reasons at T776.11-776.15)

Having rejected such evidence from the plaintiff, the judge considered whether the prosecution had proved beyond reasonable doubt whether the withdrawals were made by the plaintiff dishonestly. In doing so, his Honour stated the following:

First, the timing of the transactions. As illustrated by the chronology prepared, consistent with the evidence given in the course of the appeal, the transactions the subject of the 63 charges all closely follow substantial deposits being made into the body corporate account. In particular, withdrawals have closely followed deposits being made by unit holders for the [JLG] expenses and payment from Moreland Council and other deposits made for insurance payments. This is suggestive that the withdrawals represented rank opportunism, when money was in the account, rather than any considered repayment of moneys owed.
Second, there is also significance of the dates of certain of the transactions. Withdrawals were made on weekends, on public holidays, around Christmas and New Year's Eve. This is suggestive of personal, recreational purposes for the withdrawals, rather than being to cover legitimate expenditure of the body corporate.
Thirdly, the nature of the transactions. The amounts withdrawn were all in relatively small increments. Some were as low as $40; none were higher than $400. The withdrawal of amounts in this way is inconsistent with the legitimate recovery of a large debt, and are more consistent with the immediate use of the funds for personal purposes.
Fourth, the location of the transactions. Save for one of the 63 charges, all the money was withdrawn from ATMs, either at Browns Hotel, in Coburg, or within a few hundred metres of that venue. Once again, this is more consistent with withdrawal for personal purposes, rather than for the legitimate business of the body corporate. (Reasons at T776.30-777.29)

The prosecution relied on a number of actions as incriminating conduct to prove the plaintiff’s dishonesty. The judge was satisfied beyond reasonable doubt that the following three matters could be relied upon as incriminating conduct:

(a) The plaintiff lied about the amount of money in the owners corporation account;

(b) The plaintiff falsely represented that he had told people about the loan, and that he intended to use money deposited by lot holders into the account for purposes other than the repayment of the JLG debt; and

(c) The plaintiff falsely represented that he was unaware of the JLG letter of demand, sent by JLG’s lawyers to the owners corporation.

The judge considered that those three matters went to the plaintiff’s credibility. His Honour found that the existence of the loan debt and legal fees debt were made less probable in circumstances where the plaintiff was the only witness to give evidence as to their existence. Further, the judge found that the plaintiff was not credible in his assertion that he had an honest belief that he was allowed to withdraw money from ATMs in the manner in which he did.

The judge also used the three matters of incriminating conduct (at [57] above) as evidence of an admission that the plaintiff withdrew the monies dishonestly. His Honour was satisfied that the only reasonable explanation for the plaintiff’s conduct was that ‘he knew that his dishonesty would be uncovered but for those actions.’

The judge concluded by stating that he was satisfied beyond reasonable doubt on each of the 63 charges.

After delivering his reasons, the judge imposed a community correction order commencing on 30 June 2022 for a period of three years, and ordered the plaintiff to pay compensation to the owners corporation in the sum of $13,396.

Relevant principles

Before considering the plaintiff’s grounds of review, it is worth reiterating the principles which apply to the review of decisions under Order 56 of the Rules.[8] In short, the right of relief is narrower than in an appeal.[9] The function of the court is not to re-decide the case before the judge on the merits, or to conduct an appeal from the decision of the trial judge.[10] Rather, the court exercises a supervisory function to determine whether or not the judge was erroneous in respect of each ground of review relied upon.[11] It is not for the superior court to substitute the order or decision it thinks the decision-maker should have made.[12] The court is concerned with the legality of what was done by the court or tribunal below.[13]
[8]See for example, the principles set out in Gurappaji v Tonkin (2015) 45 VR 324, 329-330 [24]-[25] (‘Gurappaji’).
[9]Hoe v Vella [2009] VSC 600, [20].
[10]See for example, Dover v Doyle (2012) 34 VR 295, 297 [12].
[11]Craig v South Australia (1995) 184 CLR 163, 174-6 (‘Craig’).
[12]Ibid.
[13]Gurappaji (n 8) [24].

In Craig v South Australia,[14] the High Court explained that there are a number of established grounds upon which a party may seek an order for certiorari, most notably:
[14]Craig (n 11).

(a) jurisdictional error;

(b) failure to observe some applicable requirement of procedural fairness;

(c) fraud; and

(d) error of law on the face of the record.[15]

[15]Ibid [8].

In addition, an applicant may seek certiorari on the ground that the decision was manifestly unreasonable. This was explained by T Forrest J (as he was then) in Agar v McCabe,[16] to include decisions that:

…lack an evident and intelligible justification or simply defy comprehension; or is illogical or irrational in the sense that it involves illogical findings, or inferences of fact unsupported by probative material or logical grounds;[17]

[16](2014) 67 MVR 81 (‘Agar’).

[17]Ibid 96 [55] citing Minster for Immigration and Citizenship v Li (2013) 249 CLR 332, [72] (‘Li’).

However, a court’s consideration of a ground of unreasonableness is not akin to a review on the merits. In Agar, T Forrest J observed:

…unreasonableness lies at the very outer limits of the valid exercise of power and within those limits preserves a great degree of decisional freedom.[18]

[18]Agar (n 16) 96 [57] citing Li (n 17) [28]; see also Zaitsev v Building Appeals Board [2019] VSC 364, [66].

In Minister for Immigration and Border Protection v Eden,[19] the Full Federal Court discussed the principles relevant to the ground of unreasonableness. Eden concerned a judicial review of a Federal Court decision in which it was held that a Minister’s decision to deport a New Zealand citizen was infected by jurisdictional error. In explaining how to identify or define the width and boundaries of decisional freedom, and the bounds of legal reasonableness, the Full Court stated that:

…it is necessary to construe the relevant statute. The task of determining whether a decision is legally reasonable or unreasonable involves the evaluation of the nature and quality of the decision by reference to the subject matter, scope and purpose of the relevant statutory power, together with the attendant principles and values of the common law concerning reasonableness in decision- making. The evaluation is also likely to be fact dependant and to require careful attention to the evidence.[20]

[19](2016) 240 FCR 158 171-2, [63] (‘Eden’).

[20]Ibid (citations omitted).

Further, the Full Court held that:

…where reasons for the decision are available, the reasons are likely to provide the focus for the evaluation of whether the decision is legally unreasonable. Where the reasons provide an evident and intelligible justification for the decision, it is unlikely that the decision could be considered to be legally unreasonable. However, an inference or conclusion of legal unreasonableness may be drawn even if no error in the reasons can be identified. In such a case, the court may not be able to comprehend from the reasons how the decision was arrived at, or the justification in the reasons may not be sufficient to outweigh the inference that the decision is otherwise outside the bounds of legal reasonableness or outside the range of possible lawful outcomes.[21]

[21]Eden (n 19) 172 [64] (citations omitted).

Although noting that the task does not involve a ‘definitional’ or ‘checklist exercise,’[22] the Full Court provided some descriptive expressions intended to assist a court in its determination of whether a decision is legally unreasonable, including: ‘plainly unjust’, ‘arbitrary’, ‘capricious’, ‘irrational’, ‘lacking in evident or intelligible justification’, and ‘obviously disproportionate.’[23]
[22]Ibid [65] (citations omitted).
[23]Ibid (citations omitted).

Finally, the Full Court concluded that the evaluation of whether a decision is legally unreasonable requires:

evaluati[on of] the decision with a view to determining whether, having regard to the terms, scope and purpose of the relevant statutory power, the decision possesses one or more of those sorts of qualities such that it falls outside the range of lawful outcomes.[24]

[24]Ibid.

If a plaintiff alleges that there has been an error on the face of the record, the precise documents which constitute the record (for the purposes of the application for certiorari) must be determined.[25] The record ordinarily includes the reasons for decision, and may also include those parts of the transcript and evidence required so as to understand those reasons.[26] In this application, the plaintiff proposed that all of the evidence which was before the judge (transcript and exhibits) should be before me. The first defendant did not object to this course.
[25]Craig (n 11) 182.
[26]O’Connor v County Court of Victoria & Anor (2014) 67 MVR 66, 74 [30].

Grounds of review

The plaintiff seeks judicial review of the decision on the basis of twenty grounds, which are set out below. I will deal with each in turn, and explain why the plaintiff has failed to satisfy me that the judge erred in the way alleged.
Ground 1
The [judge] erred in law when considering the element of the intention to permanently deprive in relation to the crime of theft when it considered that the removal of the cash from the ATM could be considered to be usurping the right to the owner and, as such, constituting an intention to permanently deprive, if it was concluded that it was not withdrawn for a purpose legitimately related to the administration of the corporation.
Ground 2
The [judge] erred in law in being satisfied of the Plaintiffs (sic) guilt beyond reasonable doubt on each of the 63 charges of theft as there was no evidence before it to conclude that at the time of each withdrawal of cash the Plaintiff had an intention to permanently deprive Owners Corporation 1579 (“the OC”) of the relevant monies.
Plaintiff’s submissions

The plaintiff submitted that there was no evidence that he intended to permanently deprive the owners corporation of the money that he withdrew from the ATMs. In support of this submission, he relied upon R v Lloyd.[27] In that case, the English Court of Appeal held that an accused (charged with conspiracy to steal for clandestinely removing feature films from his employer for the purposes of selling pirated versions of the films before returning them) was not guilty as the prosecution had failed to prove an intention to permanently deprive the employer of the films. In this case, the plaintiff contended that, consistent with the reasoning in Lloyd, the judge was wrong to hold that an intention to permanently deprive could be made out if the respective property was not withdrawn for a purpose legitimately related to the administration of the corporation. The plaintiff submitted that this was an irrelevant consideration and it was an error of law for the judge to consider it.
[27][1985] QB 829.

In relation to ground two, the plaintiff contended that the judge erred in law in stating that the removal of the monies from ATMs could be considered to be usurping the owners corporations right. He submitted that an accused is not considered to have appropriated property if he has acted with the owner's express or implied consent or authorisation.

The plaintiff submitted that as the manager of the owners corporation, he had the sole authority to deal in ‘wide-ranging ways’ in respect of the owners corporation accounts. Further, the plaintiff emphasised that, in his evidence, he had consistently stated that (in respect of charges 119-144) at the time that he withdrew the money he intended to use it as a temporary reduction of the loan debt until the dispute with JLG had been finalised. The plaintiff stated that, following the finalisation of that dispute, he intended to pay JLG and then hold a meeting with lot owners to seek their advice as to the remaining funds. In respect of charges 145-176 and 178-182, the plaintiff stated that he believed he had a legal right to make those withdrawals to pay himself for the legal fees debt in accordance with resolutions passed at prior meetings of the owners corporation.

In view of those matters, the plaintiff submitted that there was no evidence before the judge to allow his Honour to conclude beyond reasonable doubt that, at the time of each withdrawal, the plaintiff had an intention to permanently deprive the owners corporation of the relevant monies. As such, the plaintiff contended that the judge erred in law in finding that this element had been proven.

Analysis

The judge was correct to state that an intention to permanently deprive was an element of theft for each of the 63 offences. It was open to the judge to use the evidence, including as to the times, frequency, amounts, and locations of withdrawals of the monies from ATMs, to be satisfied that the plaintiff had an intention to permanently deprive the owners corporation of the property. Given the judge was not satisfied of the existence of either the loan debt or the legal fees debt, it is clear when reading the judge’s reasons as a whole, that his Honour rejected the plaintiff’s evidence that he had a genuine belief in his entitlement to withdraw the monies. It logically follows that his Honour was entitled to use evidence of the surrounding circumstances to find that the plaintiff withdrew the monies with an intention to permanently deprive the owners corporation of the property.

The decision of Lloyd is of no relevance to the facts of this case. In Lloyd, the court was satisfied that the accused’s piracy scheme depended upon the film being returned to his employer ‘rapidly’,[28] such that the intention of the accused could more accurately be described as an intention to temporarily, as opposed to permanently, deprive the owner of the film.[29] In the present case, the judge found the plaintiff to be dishonest, and dismissed his evidence that he held an honest belief that he was entitled to withdraw the money as claimed. It was therefore logical, rational and open to the judge to reason that his finding of dishonest intent was inconsistent with the plaintiff’s claim that the monies were only being taken on a temporary basis.
[28]Ibid 832.
[29]Ibid 832-3.

Therefore, I reject grounds 1 and 2 as there was no error of law in the way alleged.

Ground 3
The [judge] erred in law when deciding the issue of dishonesty in that it was unreasonable for [his Honour] on the evidence before [him] to conclude that the Plaintiff did not specifically contend that any of the 63 transactions were done for the purpose of paying a specific invoice incurred in the legitimate business of the [owners corporation].

Ground 4
The [judge] erred in law in that it was unreasonable for [him], on the evidence before [him], to exclude the Plaintiff’s innocent explanations because of the supposed absence of any relevant invoices or receipts.

Plaintiff’s submissions

The plaintiff submitted that, in respect of charges 119-144, he had prepared lump sum receipts for the withdrawals. Further, the plaintiff submitted that he had placed the receipts ‘as a formal record’ on the owners corporation register, pursuant to s 147 of the Owners Corporations Act 2006 (Vic), such that lot holders could inspect the receipts.

In respect of charges 145-176 and 178-182, the plaintiff said that he had provided the lot holders with a bill in respect of the legal fees debt (which was based upon his time sheets) and also provided a copy of an interim bill to VCAT in respect of the removal proceedings. Further, the plaintiff submitted that the legal bill was discussed at the VCAT contempt proceedings.

Therefore, the plaintiff submitted that there was documentary evidence of receipts tendered and it was therefore unreasonable for the judge to exclude his explanation on the basis of an absence of receipts. The plaintiff stated that the judge erred in not properly analysing those documents and accepting them as confirmation of his honesty.

Analysis

The judge rejected the plaintiff’s assertion that the loan debt existed. This was, in part, as his Honour considered that it was deeply improbable that an owners corporation would assume a debt owed by an individual lot holder. Further, his Honour considered that the terms of the loan debt were unrealistically favourable to the plaintiff. The judge accepted the evidence of the lot holders that the existence of the loan debt was unknown to them.

The same can be said in respect of the documents relating to the legal fees debt. The judge was not satisfied that this debt was properly incurred, as he was not satisfied that the owners corporation engaged the plaintiff on the terms he alleged. Having rejected the existence of such an arrangement, and as a corollary, the liability for the legal fees debt, it was not necessary for the judge to analyse the plaintiff’s documentary evidence concerning that claimed debt.

The judge expressly noted that the documents purported to be in support of the existence of the arrangements were not corroborative of his evidence. Further, his Honour specifically commented that the existence of documents prior to the withdrawals was ‘absolutely unverifiable’. In my view, these findings of fact were open to the judge.

The judge’s reference to an absence of invoices or receipts can be understood as a reference to such documents relating to the legitimate business of the owners corporation. His Honour’s express rejection of the legitimacy of the loan debt and the legal fees debt rendered it unnecessary to analyse those documents which the plaintiff alleged related to those debts. There was nothing illogical or irrational in respect of this approach by his Honour.

Further, in view of the above, the judge was not obliged to accept what the plaintiff described as ‘innocent explanations’. This too was a finding open to the judge.

There was no error of law or legal unreasonableness in the way alleged. I therefore reject grounds 3 and 4.

Ground 5
The [judge] erred in law in that part of [his] ruling contained at [Reasons] T772.24-773.13[30] because [his Honour] failed to properly assess and analyse the evidence referred to therein and [his Honour’s] conclusions are unreasonable because they are not supported by the actual evidence and lack any evident intelligible justification.

Plaintiff’s submissions

[30]See above at [44].

The plaintiff submitted that an owners corporation has the freedom to contract or enter into any arrangement, irrespective of whether ‘a third party considers the outcome a bad deal or not’. The plaintiff therefore contended that the judge’s assessment of the arrangements concerning the legal fees debt and the loan debt as contrary to common sense, was an irrelevant consideration based on his Honour’s ’subjective view’. The plaintiff also submitted that it was standard practice for an owners corporation to offer bridging finance to a creditor, which the plaintiff claimed he was as a result of the loan debt agreement.

Further, the plaintiff contended that the judge erred in finding that the plaintiff’s evidence was that the loan debt was composed of contributions he was paying on behalf of one lot owner, and not two lot owners – namely, his grandmother and former lot owner, Mrs Kronas. Further, that the judge overlooked that the loan debt covered some of the tradesmen the plaintiff claimed he paid on behalf of the owners corporation during that period.

The plaintiff contended that the judge erred by referring to the previous manager making such arrangements, as the evidence was that the terms of loan debt were agreed to at a meeting of lot holders, and not just by Mr Gourley. The plaintiff submitted that the judge failed to properly analyse and assess the whole of the evidence in respect of the loan debt, and that his Honour’s conclusions on it were, in turn, unreasonable.

Analysis

The judge was required to consider all of the evidence before him. Having done so, his Honour was not satisfied that the loan debt existed. Part of his reasoning for this was the basis upon which the liability was said to have been incurred. The judge focused on the contributions the plaintiff claimed he had made on behalf of Mrs Kronas (as presumably he considered the payments made by the plaintiff on behalf of his grandmother could be easily explained and understood) and sensibly stated that the plaintiff’s arrangement to pay Mrs Kronas’ contributions was a personal one. The judge’s reference to the improbability that a previous manager of the owners corporation would have entered into an arrangement to accept liability for a debt paid on behalf of individual lot holders, was a reference to the plaintiff’s own assertion that it was Mr Gourley who recommended the loan debt sum of $18,000. Far from being unreasonable, these comments in respect of the loan debt are both logical and rational. Given the conclusion reached, I consider it immaterial that the judge did not expressly refer to the contributions which the plaintiff claimed he made on behalf of his grandmother, or paid to the tradesmen.

The judge noted that the only evidence supporting the existence of the loan debt came from the plaintiff. Given the judge otherwise considered the plaintiff was not a credible witness, in the absence of another witness corroborating its existence, it was open to the judge to conclude that it was improbable that the loan debt existed.

It was also not unreasonable for the judge not to accept the plaintiff’s evidence that it was industry practice for a third party creditor to offer bridging finance to cover owners corporation expenses when one of the lot holders was unable to meet an expense. I consider such evidence was self-serving, and did not require an express reference by the judge in his reasons.

For the above reasons, I reject ground 5 as I do not accept that there was an error of law or legal unreasonableness in the way alleged.

Ground 6
The [judge] erred in law in that part of its ruling contained at (sic) [Reasons] T773.14-773.16[31] and [Reasons] T774.18-774.24[32] because it was unreasonable for [his Honour] to conclude that the debt arrangement was so favourable to the Plaintiff as to defy belief and that there had been no accounting done to calculate the amount of monies owed to the Plaintiff.

Plaintiff’s submissions

[31]See above at [45].

[32]See above at [50].

The plaintiff submitted that the judge erred in concluding that there had been no accounting to calculate the amounts owed to him, as this ignored his evidence that the sum of $45,000 was an approximation calculated by an accountant, Mr Norman Bourchier. The plaintiff asserted that he had intended to tender a report from Mr Bourchier as evidence, but inadvertently failed to do so. In those circumstances, the plaintiff sought leave to admit the accountant’s report as new evidence in this application for judicial review to prevent a miscarriage of justice.[33]
[33]See discussion below at [146]-[163].

In addition, the plaintiff sought leave to tender an email from Mr Bourchier, dated 5 August 2014, in which Mr Bourchier opined there was nothing unrealistic about the interest rate contained in the loan debt agreement. The plaintiff submitted that it was put that it was improper of the judge to speculate that the interest rate was unfair when this had not been raised at the hearing of the appeal, and the opinion from Mr Bouchier addressed why this speculation was erroneous.

In relation to the legal fees debt, the plaintiff submitted that his time sheets, which were the basis for the legal bill, were tendered into evidence. He submitted that as there was no dispute between the owners corporation and the plaintiff as to that bill, there was no need for any accounting calculations in respect of that debt.

Analysis

For reasons explained below (see [157]-[163]), I was not satisfied that admission of the new evidence would assist the plaintiff, or that refusal of this request would result in a miscarriage of justice. The judge’s comments in relation to the absence of accounting calculations is immaterial, given his Honour was not satisfied that the loan debt existed.

In respect of the judge’s comment that the purportedly agreed interest rate was substantially greater than inflation, even if this was not a matter the judge was able to take judicial notice of, the significance of this comment is of no moment, as it was merely one of a multitude of factors considered by the judge that led him to conclude that the loan debt did not exist. There was no error of law or legal unreasonableness in this part of the judge’s reasons.

In respect of the legal fee debt, given the judge did not accept that the plaintiff was retained by the owners corporation, it follows that the judge was not satisfied that the claimed time sheets were proof of that debt.

Ground 6 is not established.

Ground 7
The [judge] erred in law because it was unreasonable for [him] to find that it was highly improbable that the debt in the form of the loan agreement existed at all because of the apparent ignorance of unit holders who gave evidence.

Plaintiff’s submissions

The plaintiff submitted that, on the evidence before the judge, it was unreasonable for his Honour to find that it was highly improbable that the loan debt existed. The plaintiff claimed that it was ’virtually impossible’ for his Honour to have reached such a conclusion based on the evidence before him. In support of his submission, the plaintiff sought to canvass several aspects of his evidence given in the appeal, as well as evidence tendered at the VCAT contempt proceedings.

Analysis

This ground is an impermissible attempt to invoke merits review. The judge heard oral evidence from the plaintiff and some of the lot holders. His Honour also had the benefit of the transcript of Ms Picone’s evidence given in the Magistrates’ Court hearing.[34] His Honour considered that the lot holders gave consistent evidence, and that the plaintiff was not a credible witness. The judge was the finder of facts, and this judicial review cannot be used as a vehicle to have a superior court revisit such factual findings. The judge’s findings were not unreasonable and this ground of review must fail.
[34]As the judge was satisfied that Ms Picone was unavailable to give evidence at the appeal hearing, pursuant to s 65 of the Evidence Act2008 (Vic) the transcript of her evidence at the Magistrates’ Court hearing was tendered.

Ground 8
The [judge] erred in law in that it was unreasonable for [his Honour] to conclude as [his Honour] has done at [Reasons] T774.5-774.11[35] of [his Honour’s] ruling that the only evidence for the existence of the debt came from the Plaintiff and that the documents’ existence prior to the relevant transactions is absolutely unverifiable.

Plaintiff’ s submissions

[35]See above at [48].

The plaintiff asserted that the judge’s finding that there was no evidence for the existence of the loan debt was unreasonable on the basis that it was not supported by the evidence, and that there was ‘no evident intelligible justification’ for such a finding. The plaintiff made submissions in respect of an exhibit entitled ‘Register of the Owners Corporation’, prepared pursuant to s 147 of the Owners Corporations Act. The exhibit stated that the information in the register was prepared on 22 October 2007 and was updated on 9 December 2011. The plaintiff also referred to his evidence that this document was prepared by Mr Gourley and that he had no involvement in its drafting. Further, the plaintiff submitted that the signatures on the management agreement (the validity of which had not been challenged) matched the signatures on the loan debt agreement, such that the validity of the loan debt was corroborated. The plaintiff also submitted that there was no evidence that the informant had checked with the Titles Office or State Revenue Office to ascertain whether any documents had been lodged by Mr Gourley.

Analysis

This is also an impermissible attempt to invite merits review. The judge did not consider the plaintiff to be a credible witness. Having so found, in the absence of any evidence given by Mr Gourley, his Honour was not obliged to accept the plaintiff’s evidence that the register was prepared by Mr Gourley. Further, the judge was not obliged to infer that the document was authentic, simply due to the absence of evidence from a public entity that it had not been registered. In circumstances where there were no witnesses able to verify the existence of the loan debt agreement prior to the registration of it on the register, and given the judge considered it improbable that such an agreement would have been reached, it was open to his Honour to come to the conclusion that he did in respect of the loan debt.

Therefore, ground 8 must be dismissed.

Ground 9
The [judge] erred in law in that part of [his Honour’s] ruling contained at [Reasons] T774.29-775.16[36] in that [his Honour] failed to properly consider and analyse all the relevant evidence and as a result [his Honour’s] conclusion to reject the Plaintiff’s evidence that he believed he had a legal right to take the money is unreasonable.

Plaintiff’s submissions

[36]See above at [52].

The plaintiff submitted that the judge failed to properly consider and analyse his evidence in relation to his belief that he had a legal right to take the monies. In support of this ground, the plaintiff reiterated the evidence he had given in the appeal. Specifically, he referred to his negotiations with JLG and his claim that he had informed the lot owners at the 2010 annual general meeting that he intended to use the contributions paid for the JLG work to reduce the amount owed to him under the loan debt agreement. The plaintiff contended his evidence in respect of these matters was ‘abundantly clear’, such that it supported his claim that he had an honest belief that he could use the funds in the way he did. The plaintiff submitted that the judge failed to properly consider and evaluate the ‘preponderance of [such] evidence’, and that his Honour’s rejection of this evidence was unreasonable.

Analysis

Once again, this ground is no more than an attempt at merits review. The judge found that the lot holders gave consistent evidence that they were not aware of the loan debt arrangement, and that the plaintiff was found to be a witness who was not credible. Accordingly, the judge was entitled to reject the plaintiff’s evidence in this respect. There is no basis upon which to contend that the judge failed to properly consider and analyse all of the relevant evidence, nor can it be said that the judge’s conclusion was legally unreasonable. Therefore, I reject ground 9.

Ground 10
The [judge] erred in law in that part of [his Honour’s] ruling contained at [Reasons] T775.24-776.3[37] in that it was unreasonable for him to conclude that the [owners corporation] would engage a manager otherwise working without fee to start charging for legal work on behalf of the [owners corporation] and that there was no evidence that the Plaintiff had any particular expertise in relevant legal fields.
[37]See above at [54].

Ground 11
The [judge] erred in law in that part of [his Honour’s] ruling at [Reasons] T776.4-776.8[38] in that [his Honour] failed to properly consider and analyse all the relevant evidence and law and as a result [his Honour’s] conclusion that the Plaintiff claimed to have been engaged as the legal representative of the [owners corporation] and charge fees for the services rendered in that role during periods during which the Plaintiff did not even have a practising certificate is unreasonable.

Plaintiff’s submissions

[38]See above at [54].

The plaintiff submitted that the judge erred in not accepting his evidence that the owners corporation had passed resolutions appointing him as its legal representative. The plaintiff repeated the evidence he gave in the appeal regarding his professional experience (which included working in commercial law firms), and submitted that the judge erroneously stated he did not have particular expertise in relevant legal fields.

In respect of ground 11, and his Honour’s reference to the plaintiff not holding a practising certificate for a period of time,[39] the plaintiff relied upon s 2.4.5(3) of the Legal Profession Act 2004 (Vic), which he claimed provides that a practicing certificate can remain in force until an application for renewal is determined, provided that it has not been suspended or cancelled.
[39]Between 1 July 2011 and 10 August 2011.

Further, the plaintiff contended that, irrespective of the above, he was granted leave at VCAT to represent the owners corporation, and this justified his claim for legal fees.

Analysis

It was both open and reasonable for the judge to conclude that it was improbable that the owners corporation would engage a manager otherwise working without fee to start charging for legal work. This conclusion was just one factor which the judge referred to as a basis for rejecting the existence of the legal fee debt.

Further, the judge was entitled to form the view that he did as to the adequacy of the plaintiff’s professional experience.

Regardless of whether or not there was a retrospective ability for the plaintiff to be certified as a solicitor for the period 1 July 2011 and 10 August 2011, this was immaterial to the judge’s ultimate findings. The judge rejected the plaintiff’s evidence that the owners corporation retained him in the way he alleged. This was a finding of fact open to the judge, having considered both the oral and documentary evidence tendered in the appeal.

At hearing, the judge expressed reservations as to the significance, if any, of the plaintiff’s claim that he had been granted leave to appear at VCAT as, ordinarily, leave is not required to appear at VCAT, whether or not legally represented.

Any finding in relation to the plaintiff’s experience and certification as a solicitor constituted only one aspect of his Honour’s consideration of whether the legal fee debt existed. The judge’s reasons on this cannot be described as legally unreasonable. Further, there is no basis to assert that the judge failed to properly consider and analyse all the evidence and law relevant to this finding. For those reasons, grounds 10 and 11 must be dismissed.

Ground 12
The [judge] erred at law at [Reasons] T776.11-776.15[40] of [his Honour’s] ruling because there was no evidence that the Plaintiff could or did set his own fees.

Ground 13
The [judge] erred at law at [Reasons] T776.30-777.29[41] of [his Honour’s] ruling because [his Honour] has taken into account irrelevant considerations in rejecting the evidence of the Plaintiff that he had an honest belief as to his legal entitlement to take the respective money which bespeaks of legal error on the ground of unreasonableness.
[40]See above at [55].
[41]See above at [56].

Ground 14
The [judge] erred at law at [Reasons] T776.30-777.29[42] of [the] ruling because [his Honour] has taken into account irrelevant considerations in considering whether the Prosecution has proven beyond reasonable doubt that the withdrawals were done dishonestly which bespeaks of legal error on the ground of unreasonableness.

Plaintiff’s submissions

[42]See above at [56].

The plaintiff submitted that his fees were set in accordance with the Magistrates’ Court scale at the relevant time. Further, he submitted that at the end of 2010 or early 2011 he attended a meeting with Mr Ward and Ms Picone, at which time a fee agreement was entered into for his legal professional services. The plaintiff submitted he provided Mr Ward and Ms Picone with an estimate of his professional fees (between $15,000 and $20,000) at this time. The plaintiff also referred to the interim bill for his professional services, which he claimed to have provided to the lot holders, and stated that he had informed them that they could seek an itemised bill, and challenge it ‘if they had any issues’.

The plaintiff submitted that his method of recovery of fees, that is, the way in which he accessed the monies, was an irrelevant consideration by the judge. He submitted that the judge erred in taking into account the manner in which he withdrew the money in considering whether the plaintiff had a genuine belief in his legal entitlement to the monies. The plaintiff stated that the relevant sections of the Crimes Act do not contain a reference to the manner of deprivation, and submitted that the only relevant consideration is whether the person had a ‘subjective genuine belief’ that they had a right to access the property.

In support of this submission, the plaintiff relied upon R v Langham.[43] In Langham, the accused had a legal entitlement to a credit from a sports store. The accused attended the store with a shotgun, and demanded the money he was owed. At first instance, the accused was found guilty of armed robbery. The majority of the South Australian Court of Criminal Appeal allowed the appeal on the basis that the accused had held an honest belief in his entitlement to the money, such that he could not have been convicted of armed robbery.[44]

Analysis

[43](1984) 36 SASR 48.

[44]Ibid 53 (King CJ) and 65 (Mohr J).

The plaintiff’s submissions overlook the judge’s conclusion that the legal fees debt was even less probable than the loan debt.

In respect of the judge’s finding that there was no evidence the plaintiff had, and did, set his own fees, I note that at hearing the judge engaged in the following exchange with the plaintiff:

HIS HONOUR: I just don’t quite understand how this has got anything to do with – so you’re saying you were drawing money out of the ATMs to pay yourself for legal work you’ve done?
PLAINTIFF: Yes, yes.
HIS HONOUR: You were paying yourself?
PLAINTIFF: As – as at that time, after the legal work had been done – and I’ll go into that.
HIS HONOUR: I just don’t quite understand how this has got anything to do with – so you’re saying you were drawing money out of the ATMs to pay yourself for legal work you’ve done?
PLAINTIFF: Yes, yes.
HIS HONOUR: You were paying yourself?
PLAINTIFF: As – as at that time, after the legal work had been done – and I’ll go into that - - -
HIS HONOUR: So you, as manager, were employing yourself as a lawyer?
PLAINTIFF: Well, that was – that was – I had six capacities at that time, okay?
HIS HONOUR: You engaged yourself as a lawyer, is that what you’re saying?
PLAINTIFF: No, I – well, as pursuant to that resolution – pursuant to that resolution, which was the 2002 resolutions, I was appointed lawyer, advisor for the Owners Corporation, and I - - -
HIS HONOUR: Did you do a fee agreement with yourself then?
PLAINTIFF: Well, it was a fee agreement at that meeting which was discussed. And I remember I do - tried to get a copy of that fee agreement but I haven’t been able to do that. But I certainly remember that, at that meeting, I gave the other lot owners present an estimate of about 15 to 20,000 for the work. If it – if it happened that we had to take it to VCAT, which eventually we did.

In my view, the above demonstrates his Honour’s reservations as to the plaintiff’s evidence with respect to his retainer as lawyer for the owners corporation, and is consistent with his ultimate finding that the legal fees debt did not exist.

There was no error by the judge in rejecting the plaintiff’s evidence that he could (and did) set his own fees. This was a finding of fact that was open to the judge. Ground 12 must therefore fail.

Ground of review 13 alleges unreasonableness based on an allegation that the judge took into account an irrelevant consideration, that being the manner of deprivation. This is another attempt by the plaintiff at merits review. As previously stated, it was open to the judge to reject the plaintiff’s evidence that he had an honest belief as to his legal entitlement to the monies. Further, it was open to the judge to have regard to the circumstances and manner in which the deprivation occurred.

The plaintiff’s reliance on the decision in Langham is misguided. Its relevance is confined to circumstances in which an accused person had an honest belief in a legal entitlement to property. In the present case, the judge was not satisfied that the plaintiff had an honest belief in his entitlement to the monies. There was no error or legal unreasonableness in the way alleged. Ground 13 must therefore fail.

It follows from this that, in respect of ground 14, the judge did not err in his consideration of the requirement of s 73(2)(a) of the Crimes Act. The judge found that the plaintiff did not have an honest belief in his entitlement to withdraw the monies. Having considered all of the evidence, it was open, and not unreasonable, for the judge to be satisfied as he was. Thus, ground 14 must also be dismissed.

Ground 15
The [judge] erred in law in that it was unreasonable for [his Honour] to be satisfied beyond reasonable doubt on the evidence before [his Honour] that the Plaintiff lied about the amount of money in the [owners corporation] account and that such lie could be relied upon by the Prosecution as incriminating conduct.

Ground 16
The [judge] erred in law in that it was unreasonable for [his Honour] to be satisfied beyond reasonable doubt on the evidence before [his Honour] that the Plaintiff falsely represented that he had told people about the loan and that he intended to use the money deposited by [lot] holders for purposes other than the repayment of the [JLG] debt and that such false representation could be relied upon by the Prosecution as incriminating evidence.

Ground 17
The [judge] erred in law that it was unreasonable for [his Honour] to be satisfied beyond reasonable doubt on the evidence before [his Honour] that the Plaintiff falsely represented that he was unaware of the [JLG] letter of demand sent by their lawyers to the [owners corporation] and that such false representation could be relied upon by the Prosecution as incriminating evidence.

Plaintiff’s submissions

The plaintiff’s submissions in respect of these three grounds were primarily a restatement of the evidence before the judge, which he submitted ought to have been accepted.

In respect of the judge’s finding that the plaintiff had lied about the amount of money in the owners corporation bank account in the VCAT removal proceedings, the plaintiff submitted that this finding involved an unreasonable evaluation by the judge of the explanation he provided in his oral evidence before the judge.

In the appeal, the plaintiff stated that whilst giving evidence in the VCAT removal proceedings, he interpreted a question asked of him, ‘to mean how much was there in relation to the cash amount I was holding on behalf of the [owners corporation] rather than a question as to how much was “in” a respective account of the [owners corporation]’.

The plaintiff submitted that the evidence relevant to this matter established a reasonable doubt, such that it was unreasonable for the judge to be satisfied beyond reasonable doubt, that the plaintiff had lied in this way, or that this could be relied upon by the prosecution as incriminating conduct.

In support of the remaining two grounds, the plaintiff referred to aspects of his evidence in which he asserted that he had informed lot holders of the loan debt, and of his intention to use the JLG monies to temporarily reduce the loan debt. The plaintiff submitted that when such evidence was considered by the judge, it was unreasonable for his Honour to conclude that the prosecution could rely upon the plaintiff’s alleged lies and false representations as incriminating conduct.

Further, the plaintiff submitted that all of the evidence ‘clearly establishe[d] a reasonable doubt’ as to whether he had lied about the money in the account.

In written submissions the plaintiff referred to a decision of the Full Federal Court in BFH16 v Minister for Immigration and Border Protection[45] as support for his claim that any alleged finding of credibility in the court below can be scrutinised in this court if it was not based on probative evidence and constituted legal unreasonableness.

Analysis

[45](2020) 274 FCR 532.

Each of these three grounds are an impermissible attempt to invite merits review. In any event, there is no substance to any of the grounds.

I will first deal with ground 15, in respect of the judge’s findings that the plaintiff had lied about the amount in the owners corporation bank account. The judge was the finder of fact and it was therefore open to his Honour to reject the plaintiff’s evidence and submissions in respect of this. Having done so, it was also open to the judge to find that the plaintiff’s evidence given at the VCAT removal proceedings was a lie. There was no error in the judge reaching this conclusion, nor in finding that the prosecution could rely upon the lie as incriminating conduct. Contrary to what the plaintiff submitted, the judge did not need to be satisfied beyond reasonable doubt as to whether plaintiff had lied in relation to the balance of the owners corporation account. It was only the three elements of the offence which needed to meet that criminal standard. This ground must be dismissed.

The same must be said in relation to grounds 16 and 17. The plaintiff’s reiteration of the evidence, which was rejected by the judge does not establish an error on behalf of his Honour.

As to the plaintiff’s reliance on BFH16, in that case the applicants claimed to have a well-founded fear of persecution based on their membership of a particular social group, namely male homosexuals in Pakistan. Their applications for protection visas had been refused by a delegate of the Minister for Immigration and Border Protection, and they had been unsuccessful before the Administrative Appeals Tribunal. The member at the Tribunal refused the applications on the basis that it did not accept the men were homosexual and in a relationship. The Tribunal made adverse credit findings against the applicants, in part, based on an assessment of their behaviour following their first sexual experience together, and a finding that a gay couple in a committed relationship would not frequent venues where they might be propositioned for sex. The Full Federal Court held that such credibility findings involved jurisdictional error on the basis that they were irrational and illogical,[46] and were not rationally probative of a fact in issue.[47]
[46]At [35].
[47]At [48].

The facts and issues in BFH16 are in no way comparable to the credit findings made by the judge in respect of the plaintiff in this case. To the contrary, his findings of false representations are both rational and logical.

Notwithstanding the plaintiff’s dissatisfaction with the judge’s findings, he has failed to persuade me that they were illogical, irrational, or so unreasonable that it could be said that the judge acted beyond the limits of the valid exercise of his power. Therefore, grounds 16 and 17 must also fail.

Ground 18
The [judge] erred in law in that it was unreasonable for [his Honour] on the evidence before [him] to use the Plaintiff’s alleged lies and false representations to assess the Plaintiff’s credibility and as evidence of an admission that he did in fact withdraw the money dishonestly.

Plaintiff’s submissions

The plaintiff submitted that the manner in which the money was withdrawn was irrelevant to the crime of theft, such that in accounting for his Honour’s findings that the plaintiff lied and made false representations, the judge had erred. The plaintiff reiterated his submissions in respect of grounds 15-17, and stated that it was unreasonable for the judge to have found that the plaintiff lied and made false representations, and that this could be relied upon by the prosecution as incriminating conduct.

Analysis

For the reasons stated (above at [134]-[139]), there was no error of law or legal unreasonableness in the judge’s finding as to the lies and false representations relied upon by the prosecution as incriminating conduct. It was open to the judge to use those findings as evidence of the plaintiff’s dishonesty, including in respect of the manner in which the money was withdrawn. This ground of review must also be rejected.

Ground 19
The [judge] erred in law in that [his Honour] failed to provide reasons as to why [he] rejected the Plaintiff’s contention as contained at Reasons at T769.30-770.5[48] of [his Honour’s] ruling.
[48]See above at [40].

Ground 20
The [judge] erred in law in that it was unreasonable for [his Honour] to be satisfied beyond reasonable doubt on the evidence before [him] that the relevant money belonged to another person, specifically the [owners corporation], as particularised in the charge-sheets.

Plaintiff’s submissions

As best I can understand the plaintiff’s submissions in respect of grounds 19 and 20, he asserted that, in circumstances where he had loaned monies to the owners corporation over a 14 year period, he was entitled to treat the owners corporation as being of ‘marginal solvency’ such that, as a creditor of that entity, he had a beneficial interest in the owners corporation which gave him a legal entitlement to the monies in its bank account. As such, the plaintiff asserted that the money he withdrew from the owners corporation account was not property belonging to another.

Further, the plaintiff submitted that he had the equivalent of a solicitor’s lien for the legal work he had performed in the VCAT planning proceedings. He submitted that such a lien attached to the property of the client, without the need for a court order to this effect.

The plaintiff claims that these were serious questions to be determined by the judge and that his Honour’s failure to address these questions in the reasons constituted an error of law.

Analysis

The plaintiff’s submissions in relation to grounds 19 and 20 are predicated upon his assertions as to the existence and legitimacy of the loan debt and legal fee debt. As previously stated, the judge rejected the plaintiff’s claims as to the existence of those debts. It was therefore not necessary for his Honour to consider the arguments advanced in relation to how the existence of those debts may have given rise to the plaintiff’s legitimate belief in his entitlement to the money. Consistent with his Honour’s factual findings as to the existence and legitimacy of the debts, it was open to the judge not to refer to the plaintiff’s submissions with respect to grounds 19 and 20. These grounds must also fail.

New evidence

At the commencement of the hearing, the plaintiff sought leave to rely upon the following new evidence which had not been tendered before the judge:

(i) A report of accountant Mr Bourchier of CMT Accountants Pty Ltd (undated); (the accountant’s report);

(ii) Email correspondence between Mr Bourchier and the plaintiff dated 5 August 2014 (the accountant’s email); and

(iii) Notices of pre-hearing conference in respect of a dispute in the Magistrates’ Court regarding payment of the JLG works dated 17 December 2013.

In respect of the accountant’s report, the plaintiff submitted that he had referred to this report in his oral evidence, and although he intended to tender it before the judge, he inadvertently failed to do. The plaintiff submitted that this report should be admitted as it was not an afterthought, and was relevant to the judge’s finding that there were no accounting records in respect of the loan debt. He submitted that it should be admitted to ‘prevent a miscarriage of justice and to highlight and disclose the errors made by the [judge].’

In respect of the accountant’s email, the plaintiff submitted that the judge’s comment that the debt accumulated interest ‘at a rate substantially greater than inflation’ was not the subject of discussion by the parties at hearing. As such, he submitted that this was something that the judge had ‘come up [with] out of the blue’ and, as a matter of fairness, and to avoid a miscarriage of justice, the plaintiff should be permitted to now rely upon evidence which was cogent and relevant to this aspect of the reasons.

The plaintiff also submitted that the accountant’s report and the accountant’s email were based upon Mr Bourchier’s specialised knowledge as an accountant, such that they should be admitted under s 79 of the Evidence Act 2008 (Vic).

In respect of the notices of pre-hearing conference, the plaintiff submitted that this evidence was relevant as it corroborated his evidence that he was in a dispute with JLG, and that he intended to use money in the owners corporation account to temporarily reduce the loan debt until the dispute had resolved. The plaintiff submitted that it was in the interests of justice that the notices be admitted in order to avoid a miscarriage of justice.

In support of his application to admit such evidence, the plaintiff provided written submissions which referred to decisions involving criminal appeals in which courts had admitted new evidence to avoid a miscarriage of justice.[49] In circumstances where the plaintiff was not able to refer to any authorities relevant to an application for judicial review of an inferior court’s decision, and the first defendant opposed the application, at hearing I refused the admission of those three pieces of evidence. I indicated that I would give my reasons in this judgment.
[49]R v Abbott (1985) 17 A Crim R 355; R v Knights (1993) 70 A Crim R 105; R v Babic [1998] 2 VR 79; Betts v The Queen (2016) 258 CLR 420; Barnes v The Queen [2022] NSWCCA 140; Packard v The Queen [2022] VSCA 128.

Subsequent to the hearing, the plaintiff provided further written submissions which referred to authorities he submitted were relevant to the admission of new material in judicial review proceedings. The first was a Federal Court decision in Australian Retailers Association v Reserve Bank of Australia.[50] The plaintiff submitted that this case was authority for the admission of additional evidence in circumstances where there was an allegation that a decisionmaker lacked jurisdiction on the ground of unreasonableness.
[50](2005) 148 FCR 446 (‘Australian Retailers’).

Next, the plaintiff referred to the decision of Mackenzie v Head, Transport for Victoria[51] as authority for the admission of additional expert evidence where it may assist the court in determining whether the decision under review was legally unreasonable because it was capable of showing that there was no intelligible foundation for it.[52]
[51][2020] VSC 328 (this decision was appealed, and leave to appeal refused); see Mackenzie & Ors v Head, Transport for Victoria & Ors [2021] VSCA 100 (‘Mackenzie’).
[52]Ibid [65].

Finally, the plaintiff referred to the decision of Chandra v Webber[53] as support for his contention that further evidence may be admitted if it is relevant to the grounds of review.
[53](2010) 187 FCR 31 (‘Chandra’).

In reply, the first defendant submitted that the three pieces of evidence which the plaintiff seeks to rely upon in this application do not satisfy the test in Australian Retailers. The first defendant submitted that the three pieces of evidence were ‘the same species of evidence, that is, evidence produced by him, that purports to have legitimacy but, in actuality, it is entirely unverifiable’. In any event, the first defendant submitted that even if such material had been before the judge, it would not have changed the outcome of the appeal.

The first defendant contended I should reject the plaintiff’s reliance upon Mackenzie as authority for the proposition that the accountant’s email is admissible expert evidence. It submitted that the accountant’s email was neither expert evidence, nor admissible and, in particular, that it did not meet the requirements of Practice Note Number 2 of 2014 (Expert Evidence in Criminal Trials).

Analysis

Having considered the plaintiff’s additional submissions, I am not persuaded that I should reconsider my refusal to admit new evidence in this application.

As a general principle, in a judicial review proceeding, the application is ordinarily determined by reference to the material that was before the decision-maker when the decision was made. There are, however, some recognised exceptions to that rule, as demonstrated in Australian Retailers,[54] Chandra,[55] and Mackenzie.[56]
[54]Australian Retailers (n 51) [457]- [459].
[55]Chandra (n 54) 43-44, [41]-[45].
[56]Mackenzie (n 52) [153] (as set out below).

The Court of Appeal in Mackenzie identified some classes of evidence as admissible, even though not before the decision-maker. These were expressed as follows:

(1) Evidence that constitutes an admission by the decision-maker.
(2)Evidence that falls within the Prasad principle, that is, evidence that is capable of showing that the decision-maker failed to make an obvious inquiry about a critical fact, the existence of which is easily ascertained, and the failure renders the decision legally unreasonable or constitutes a constructive failure to exercise jurisdiction.
(3)Evidence that is capable of showing that the decision-maker made an error as to a jurisdictional fact and therefore did not have jurisdiction to make the decision.
(4)Evidence that is capable of showing that the decision-maker made an error as to a non-jurisdictional fact of such a nature that he or she thereby constructively failed to exercise jurisdiction.
(5)Expert evidence that is capable of showing that there was no intelligible foundation for the decision.[57]

[57]Mackenzie (n 52) [153].

The proposed additional material does not fall within any of the exceptions contemplated in the above decisions. None of the documents are of any relevance to the plaintiff’s unmeritorious claims that the judge’s decision was legally unreasonable, or contained an error of law on the face of the record.

The plaintiff’s previous submission that the three new pieces of evidence should be admitted to avoid a miscarriage of justice is without foundation. It is instead a further attempt to challenge the judge’s findings of fact, which were made following his Honour’s assessment of the plaintiff as a witness lacking credibility.

As was observed by Richards J in Mackenzie (at first instance):

It will be a rare case in which evidence that was not before the decision-maker is relevant. Parties and their legal advisers should bear in mind the limits of judicial review, and take care to not to burden the Court and the other parties with irrelevant material.[58]

[58]Mackenzie (n 52) [72].

Further, for the sake of completeness, even if the new evidence was admitted (and Mr Boucher’s opinion evidence was ruled admissible) for the reasons previously given, such documents were insufficient to support the plaintiff’s contention that the judge’s decision was legally unreasonable or involved an error of law.

Conclusions

The plaintiff has failed to satisfy me that the judge’s decision contained errors of law or was manifestly unreasonable.

The judge analysed the whole of the evidence, considered the submissions of the parties, and provided reasons as to his findings and conclusions in the manner required. Therefore, I reject the submissions made on behalf of the plaintiff that it was not open to the judge, on the evidence before him, to be satisfied beyond reasonable doubt that the plaintiff was guilty of the 63 charges of theft.

Having examined the evidence in this matter and considered the plaintiff’s grounds of review, there is no basis upon which to make an order quashing the decision of the judge.

I will hear from the parties as to the precise form of orders to give effect to these reasons, and as to costs.

Annexure A

Charge number	Date of charge	Amount	Location
119	06/12/2010	$1,000	Coburg
120	09/12/2010	$100	Coburg
121	13/12/2010	$50	Coburg
122	13/12/2010	$200	Coburg
123	20/12/2010	$300	Coburg
124	20/12/2010	$300	Coburg
125	20/12/2010	$400	Coburg
126	22/12/2010	$100	Coburg
127	23/12/2010	$60	Coburg
128	23/12/2010	$102	Coburg
129	24/12/2010	$202	Coburg
130	24/12/2010	$300	Coburg
131	24/12/2010	$402	Coburg
132	28/12/2010	$200	Coburg
133	27/12/2010	$240	Coburg
134	28/12/2010	$280	Coburg
135	28/12/2010	$320	Coburg
136	28/12/2010	$320	Coburg
137	28/12/2010	$400	Coburg
138	01/01/2011	$400	Coburg
139	21/03/2011	$70	Coburg
140	14/06/2011	$72	Melbourne
141	08/07/2011	$42	Coburg
142	08/07/2011	$42	Coburg
143	08/07/2011	$102	Coburg
144	08/07/2011	$140	Coburg
145	20/08/2011	$100	Melbourne
146	21/08/2011	$102	Coburg
147	20/08/2011	$150	Coburg
148	10/10/2011	$400	Coburg North
149	09/10/2011	$600	Coburg
150	11/10/2011	$70	Coburg
151	13/10/2011	$20	Melbourne
152	19/10/2011	$100	Coburg
153	19/10/2011	$400	Coburg
154	20/10/2011	$1,000	Coburg
155	22/10/2011	$500	Coburg
156	30/10/2011	$40	Melbourne
157	29/10/2011	$60	Melbourne
158	29/10/2011	$250	Melbourne
159	29/10/2011	$350	Melbourne
160	01/11/2011	$100	Coburg
161	06/11/2011	$500	Coburg
162	06/11/2011	$500	Coburg
163	15/11/2011	$150	Coburg
164	20/11/2011	$20	Coburg
165	20/11/2011	$100	Coburg
166	20/11/2011	$120	Coburg
167	23/11/2011	$20	Melbourne
168	24/11/2011	$20	Melbourne
169	25/11/2011	$20	Melbourne
170	25/11/2011	$100	Coburg
171	29/11/2011	$200	Coburg
172	02/12/2011	$70	Coburg
173	02/12/2011	$100	Coburg
174	02/12/2011	$100	Coburg
175	02/12/2011	$100	Coburg
176	02/12/2011	$460	Coburg
178	25/12/2011	$42	Coburg
179	25/12/2011	$52	Coburg
180	25/12/2011	$102	Coburg
181	25/12/2011	$52	Coburg
182	25/12/2011	$202	Coburg

SCHEDULE OF PARTIES

S ECI 2022 00063

BETWEEN:

ERMANNO GIURINA Plaintiff

- and -

ANNA LOUISE McILROY First Defendant

COUNTY COURT OF VICTORIA Second Defendant

ERMANNO GIURINA	Plaintiff
- and -
ANNA LOUISE McILROY	First Defendant
COUNTY COURT OF VICTORIA	Second Defendant

[2023] VSC 236

17 May 2023