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Glass (a pseudonym) v Chief Examiner

Glass (a pseudonym) v Chief Examiner

Case [2015] VSCA 127 29 May 2015

Civil Litigation & Procedure

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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circumstances made out – Non-publication direction made under Major Crime (Investigative Powers) Act 2004 – Direction rescinded to enable coercively obtained evidence to be used in prosecution of alleged co-offender – Coercive powers order expired at time of rescission – Whether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?

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…

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 Glass (a pseudonym) v Chief Examiner

Details

AGLC: Glass (a pseudonym) v Chief Examiner [2015] VSCA 127
Case: [2015] VSCA 127
Decision Date: 29 May 2015

CaseChat Overview and Summary

The matter before the Court was an appeal against a decision to refuse an application for leave to bring judicial review proceedings. The applicant, Mr Glass, sought to challenge the Chief Examiner’s decision to rescind a non-publication direction made under the Major Crime (Investigative Powers) Act 2004. The Chief Examiner rescinded the direction to enable coercively obtained evidence to be used in the prosecution of an alleged co-offender. The coercive powers order had expired at the time of rescission. The primary issues before the Court were whether a non-publication direction could be revoked after the expiry of a coercive powers order and whether the delegate was empowered to rescind the non-publication direction under the relevant instrument of delegation.

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