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 The amount subject to the theft charges which was withdrawn in the period totalled $13,396 (the monies).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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Giurina v McIlroy

Details

AGLC: Giurina v McIlroy [2023] VSC 236
Case: [2023] VSC 236
Decision Date: 17 May 2023

CaseChat Overview and Summary

In Giurina v McIlroy, the plaintiff sought judicial review of a decision made by the County Court on appeal from the Magistrates’ Court, wherein the plaintiff was convicted of 63 charges of theft. The plaintiff applied for relief in the form of certiorari under Order 56 of the Supreme Court (General Civil Procedure) Rules 2015, challenging the County Court’s decision on the grounds of alleged error of law on the face of the record or unreasonableness. Additionally, the plaintiff sought to introduce new evidence that had not been presented in the earlier proceedings.

The central legal issues before the court were whether there was an error of law on the face of the record or unreasonableness in the County Court's decision, and whether new evidence should be admitted in the judicial review proceedings. The court had to consider the applicable legal principles governing judicial review, particularly the standards for error of law and unreasonableness, as well as the admissibility of new evidence. The court referred to established case law, including Craig v South Australia, Agar v McCabe, Minister for Immigration and Border Protection v Eden, O’Connor v County Court of Victoria & Anor, and Mackenzie & Ors v Head, Transport for Victoria & Ors.

The court dismissed the application for judicial review. It held that there was no error of law on the face of the record and that the County Court's decision was not unreasonable. Furthermore, the court ruled that new evidence could not be admitted in the judicial review proceedings, as it would amount to an appeal rather than a review of the original decision. The court relied on the principle that judicial review is a limited process focused on the legality of the decision-making process, not a re-examination of the merits of the case. The application was dismissed, and no orders were made in favour of the plaintiff.

Orders