SUPREME COURT OF VICTORIA
COURT OF APPEAL
| S APCI 2015 0017 | |
| DAVID GLASS (a pseudonym)[1] | Applicant |
| v | |
| THE CHIEF EXAMINER & ORS | Respondents |
[1]To ensure that there is no possibility of identification, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the applicant.
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| JUDGES: | SANTAMARIA, FERGUSON and McLEISH JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 5 May 2015 |
| DATE OF JUDGMENT: | 29 May 2015 |
| MEDIUM NEUTRAL CITATION: | [2015] VSCA 127 |
| JUDGMENT APPEALED FROM: | [2015] VSC 29 (Garde J) |
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APPEAL – JUDICIAL REVIEW – Application for extension of time to commence judicial review proceedings – Special circumstances must be established if time to be extended – Strength of case for judicial review to be taken into account in determining if special circumstances made out – Non-publication direction made under Major Crime (Investigative Powers) Act 2004 – Direction rescinded to enable coercively obtained evidence to be used in prosecution of alleged co-offender – Coercive powers order expired at time of rescission – Whether non-publication direction can be revoked after expiry of coercive powers order – Instrument of delegation “in respect of” coercive powers order – Whether delegate empowered to rescind non-publication direction – Major Crime (Investigative Powers) Act 2004 ss 4, 43 – Supreme Court (General Civil Procedure) Rules 2005 r 56.02 – The Chief Examiner v Mary Brown (a pseudonym) [2013] VSCA 167, AJH v Chief Examiner (2011) A Crim R 370, Balmer and Associates v VLA [2012] VSC 536.
PRACTICE AND PROCEDURE – Appellate courts – Discretion – Point not argued before associate judge nor in appeal before judge in Trial Division – Whether merits of case outweigh need for finality in litigation – Civil Procedure Act 2010 ss 7–9.
PRACTICE AND PROCEDURE – Leave to appeal – Real prospect of success but merits of case weak and point not argued before judge in Trial Division – Discretion exercised to refuse leave – Supreme Court Act 1986 s 14C, Kennedy v Shire of Campaspe [2015] VSCA 47.
| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr C T Carr | Theo Magazis & Associates |
| For the First Respondent | Mr R M Niall QC with Mr A Imrie | Office of Chief Examiner |
| For the Third Respondent | Ms F L Dalziel | Ms V Anscombe, Acting Solicitor for Public Prosecutions |
SANTAMARIA JA
FERGUSON JA
McLEISH JA:
TABLE OF CONTENTS
Introduction
The facts
The associate judge’s decision
The Judge’s decision
Ground of appeal
The applicant’s arguments
(a) Are the merits of the applicant’s judicial review grounds very good?
(i) Did the Chief Examiner have power to revoke the Direction?
(ii) Did the examiner have power to revoke the Direction?
(b) Did the associate judge err in her approach?
(c) Should the applicant be permitted to argue a point not argued before the judge?
Other matters
Conclusion
Introduction
The Major Crime (Investigative Powers) Act 2004 (‘the Act’) provides a regime for the use of coercive powers to investigate organised crime. The first step in the…
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- AGLC
- Glass (a pseudonym) v Chief Examiner [2015] VSCA 127
- Case
- [2015] VSCA 127
- Decision Date
CaseChat Overview and Summary
The Court held that the applicant’s case had little merit as the coercive powers order had expired at the time of rescission. The Court considered that the Chief Examiner was not empowered to rescind the non-publication direction as the instrument of delegation was “in respect of” the coercive powers order. The Court also noted that the applicant had not argued the point before the judge in the Trial Division. The Court exercised its discretion to refuse leave to appeal, considering that the merits of the case were weak and the point had not been argued before the judge in the Trial Division.
The Court also noted that the applicant had not established special circumstances to justify an extension of time to commence judicial review proceedings. The strength of the case for judicial review was taken into account in determining whether special circumstances were made out. The Court referred to relevant authorities such as The Chief Examiner v Mary Brown, AJH v Chief Examiner and Balmer and Associates v VLA. The Court also considered the need for finality in litigation and the provisions of the Civil Procedure Act 2010 and Supreme Court Act 1986.
The Court dismissed the appeal and made no orders as to costs.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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