Glass (a Pseudonym) v Chief Examiner - [2015] VSC 29

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

PRACTICE COURT

S CI 2014 03546

DAVID GLASS (A PSEUDONYM)	Appellant
v
CHIEF EXAMINER	First Respondent
– and –
THE COUNTY COURT OF VICTORIA	Second Respondent
– and –
THE DIRECTOR OF PUBLIC PROSECUTIONS, VICTORIA	Third Respondent

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JUDGE:	GARDE J
WHERE HELD:	Melbourne
DATE OF HEARING:	28 January 2015
DATE OF JUDGMENT:	30 January 2015
CASE MAY BE CITED AS:	Glass v Chief Examiner & Ors
MEDIUM NEUTRAL CITATION:	[2015] VSC 29 (1st revision, 16 February 2015, [13])

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Practice and Procedure – Extension of time – Appeal from an Associate Justice – Rescission of non-publication direction – Major Crime (Investigative Powers) Act 2004 (Vic) s 43 – Supreme Court (General Civil Procedure) Rules 2005 r 25.02(3)

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr F. Todd	Theo Magazis & Associates
For the First Respondent	Mr R. Niall QC & Mr A. Imrie	Office of the Chief Examiner
For the Third Respondent	Ms F. Dalziel	Craig Hyland, Solicitor for Public Prosecutions

HIS HONOUR[1]:

[1]This is an edited version of an oral judgment given on 30 January 2015

This is an appeal from a decision of an Associate Justice refusing to grant an extension of time for bringing an originating motion seeking judicial review of a decision made in 2012 by a delegate of the Chief Examiner. The decision was to rescind a non-publication direction previously made in relation to evidence the appellant gave compulsorily in hearings in 2010. The decision under appeal is a considered decision of 112 paragraphs and was handed down on 17 October 2014 after a hearing on 12 September 2014.

It is accepted by the parties that the appeal is by way of rehearing and that for the appellant to succeed, it is necessary to show that there is a legal, factual or other discretionary error made by the Associate Justice. The test to be adopted is set out in Applebee v Monash City Council[2], Re Ascot Vale Self-Storage Centre Pty Ltd (In Liquidation)[3], and Neely v Southern Cross Feeds Pty Ltd (No 2).[4]
[2][2013] VSC 481 [17].
[3][2014] VSC 75 [11]-[14].
[4][2013] VSC 238 [5].

In the event that there is an error shown in the decision, the discretion of the court, under Rule 56.02(3) of the Supreme Court (General Civil Procedure) Rules 2005, is re‑enlivened and stands to be exercised afresh.

The background facts are fully set out in the decision. I will not repeat them here. It is not suggested by the appellant that there are any factual errors contained in the decision.

The notice of appeal sets out seven grounds of appeal. Six grounds were relied on by the appellant. Counsel for the appellant, conveniently, grouped the grounds of appeal into three categories which she addressed in her submissions:

(1) that the Associate Justice turned the explanation of the delay by the appellant into a condition precedent to the exercise 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.

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Details

Case: [2015] VSC 29
Decision Date: 30 January 2015

CaseChat Overview and Summary

Glass (a pseudonym) appealed against a decision made by an Associate Justice of the Supreme Court to refuse an application for an extension of time to appeal a non-publication direction. The Chief Examiner was the respondent to the appeal. The case concerned a direction made under the Major Crime (Investigative Powers) Act 2004 (Vic) that prohibited the publication of the appellant's identity and other information in relation to an investigation. The appellant had argued that the Associate Justice had erred in law by not allowing an extension of time to appeal the direction.

The court had to determine whether the Associate Justice had exercised his or her discretion correctly in refusing an extension of time. The appellant argued that the Associate Justice should have considered whether there was a sufficient reason for the delay in making the application and whether the appellant had acted with due diligence. The respondents argued that the Associate Justice had exercised his or her discretion appropriately and that the appellant had failed to demonstrate any exceptional circumstances warranting an extension of time.

The court held that the Associate Justice had exercised his or her discretion correctly in refusing the application for an extension of time. The court found that the appellant had not demonstrated any exceptional circumstances warranting an extension of time and that the appellant's delay in making the application was not excusable. The court also held that the appellant had not acted with due diligence in making the application. The court found that the appellant had been aware of the non-publication direction since 2014 and had not taken any steps to appeal the direction until 2018. The court held that the appellant's delay in making the application was inexcusable and that the appellant had not demonstrated any sufficient reason for the delay. The court found that the Associate Justice had exercised his or her discretion correctly in refusing the application for an extension of time. The appeal was dismissed and the appellant was ordered to pay the costs of the appeal of the first and third respondents.

Orders

Orders of the court

I will order that the appellant pay the costs of the appeal of the first and third respondents.

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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