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

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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.

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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…

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 McLeay

Details

AGLC: Giurina v McLeay [2023] VSC 397
Case: [2023] VSC 397
Decision Date: 13 July 2023

CaseChat Overview and Summary

Giurina v McLeay involved a dispute between the plaintiff, Giurina, and the defendant, McLeay, over a conviction for breaching section 11(1) of the Uniform Law. The case originated in the Magistrates’ Court, where Giurina was found guilty, and was subsequently appealed to the County Court. Giurina appealed again to the court on the basis of 14 grounds of review of the County Court's decision. The primary issue for the court was to determine whether the grounds provided by Giurina constituted valid grounds for judicial review and to examine the proper construction of section 11(1) of the Uniform Law. Specifically, the court needed to decide if section 11(1) constituted a strict liability offence and whether the County Court's fact-finding was reasonable.

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