| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S ECI 2022 00112
| ERMANNO GIURINA | Plaintiff |
| v | |
| FIONA MCLEAY | First Defendant |
| and | |
| THE COUNTY COURT OF VICTORIA | Second Defendant |
---
JUDGE: | Forbes J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 22 March 2023 |
DATE OF JUDGMENT: | 13 July 2023 |
CASE MAY BE CITED AS: | Giurina v McLeay & Anor |
MEDIUM NEUTRAL CITATION: | [2023] VSC 397 |
---
ADMINISTRATIVE LAW – Judicial Review – Where, on appeal (by hearing de novo) against conviction from Magistrates’ Court, County Court found plaintiff guilty of breaching s 11(1) of the Uniform Law – Where plaintiff alleges 14 grounds of review of County Court decision – Whether grounds are valid grounds of review – Proper construction of s 11(1) - Whether s 11(1) of the Uniform Law is a strict liability offence – Whether County Court’s fact-finding was unreasonable.
---
APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Ermanno Giurina - Self-represented | |
| For the First Defendant | J Dodd | Colin Biggers & Paisley |
HER HONOUR:
Mr Giurina commenced this proceeding under Order 56 of the Supreme Court (General Civil Procedure) Rules 2015 (the Rules), seeking judicial review of orders made by Judge Brimer of the County Court on 1 December 2021. Those orders were made in respect of a single charge under the Legal Profession Uniform Law (the Uniform Law),[1] which her Honour found proved beyond reasonable doubt. The County Court hearing was an appeal from the conviction and sentence on the same charge recorded by the Magistrates’ Court. Mr Giurina has no automatic right of appeal against the County Court decision.
[1]Which is Schedule 1 of the Legal Profession Uniform Law Application Act 2014 (Vic) (‘Uniform Law’).
A judicial review of a decision made by a lower court is, self-evidently, not an appeal. As was said by the Court of Appeal of this Court’s supervisory jurisdiction:
In the present context, judicial review is the exercise by the Supreme Court of its supervisory jurisdiction over other courts in the State of Victoria, including the Magistrates’ Court and the County Court. This jurisdiction is supervisory, not appellate. In exercising the jurisdiction the Court does not assess the merits of the decision, it considers only whether the court below exceeded its jurisdiction and whether it observed the law in reaching the relevant decision.[2]
[2] Austin v Dobbs [2019] VSCA 296, [88].
Mr Giurina’s Amended Originating Motion identifies 14 grounds of review. Each ground commences by saying ‘the County Court of Victoria erred in law’, before identifying particular conduct or conclusions. The description of each ground as an error of law does not necessarily make the conduct or conclusion complained of one that could properly be described as something that either exceeded jurisdiction or amounted to a failure to observe the law in reaching the decision that the charge was proven.
The submissions of the plaintiff and the first defendant proceeded on the basis that all grounds were capable of…
Continue reading Giurina v McLeay
Sign in free to access the full text
- AGLC
- Giurina v McLeay [2023] VSC 397
- Case
- [2023] VSC 397
- Decision Date
CaseChat Overview and Summary
The court commenced by examining the 14 grounds of review presented by Giurina. It determined that several of these grounds were not valid bases for judicial review, as they did not challenge the legality of the decision but rather questioned the merits or the evidence. The court then turned to the question of whether section 11(1) of the Uniform Law was a strict liability offence. The court analysed the statutory language and relevant case law and concluded that section 11(1) did not impose strict liability but rather required proof of fault or mens rea. The court further considered whether the County Court's fact-finding was unreasonable, reviewing the evidence and the reasoning provided by the County Court. It found that the County Court's determination was supported by the evidence and was not unreasonable.
The court dismissed Giurina's appeal, upholding the County Court's decision. The reasoning was that the grounds of review presented by Giurina did not challenge the legality of the County Court's decision, and the court found no fault with the County Court's interpretation of section 11(1) or its fact-finding process. As a result, the conviction for breaching section 11(1) of the Uniform Law stood.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.