Goldberg v Shenton

[2016] VSC 21

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S CI  2014 5268

DAVID GOLDBERG	Plaintiff
v
BRETT SHENTON	First Defendant
- and -
COUNTY COURT	Second Defendant

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JUDGE:	Lansdowne AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	8 May 2015
DATE OF JUDGMENT:	5 February 2016
CASE MAY BE CITED AS:	Goldberg v Shenton & Anor
MEDIUM NEUTRAL CITATION:	[2016] VSC 21

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JUDICIAL REVIEW – plaintiff seeks judicial review of County Court determination of an appeal against conviction in the Magistrates’ Court – alleges failure by the County Court judge to disclose his ‘close friendship’ with a magistrate who had previously made orders against the plaintiff in other proceedings – plaintiff alleges being persecuted by police and that magistrate at the direction of ASIO - informant seeks summary dismissal – no real prospect of success of any of the plaintiff’s grounds - summary dismissal ordered.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	In person
For the First Defendant	Mr A Castle, solicitor

TABLE OF CONTENTS

Introduction......................................................................................................................................... 1

Facts................................................................................................................................................. 1

This proceeding............................................................................................................................. 2

Default Judgment............................................................................................................................... 3

Judicial Review................................................................................................................................... 4

Nature of the jurisdiction to review........................................................................................... 4

Grounds here relied upon........................................................................................................... 5

Application for Summary Dismissal.......................................................................................... 7

Discussion of Grounds...................................................................................................................... 8

Challenge to Judge Chettle’s conclusions................................................................................. 8

Acting at the direction of ASIO................................................................................................... 9

Breach of natural justice............................................................................................................. 11

Fabricated evidence; incorrect entry on the plaintiff’s traffic record.................................. 14

Discretion to refuse summary judgment..................................................................................... 16

Orders................................................................................................................................................. 17

HER HONOUR:

Introduction

Facts

1. On 8 October 2012 the plaintiff was driving a utility on the rear tray of which were stacked many aluminium chairs and some other items. He was driving to a recycling centre in the operation of his business as a recycler. He was stopped by two police officers who had observed the vehicle while driving towards it, and had formed the view that the load may be unsafe. The police officers, the first defendant and another officer, inspected the load and concluded that it was not sufficiently restrained. The first defendant issued to the plaintiff an infringement notice alleging that he had breached a load restraint requirement contrary to s 175(1) of the Road Safety Act 1986. The plaintiff applied to have the charge determined in court and was issued with a charge to that effect on 11 February 2013. The charge was heard at the Melbourne Magistrates’ Court on 1 November 2013 and the plaintiff was convicted and fined $220 with $71 statutory costs. On the same day he filed a notice of appeal to the County Court in which he gave as the reason for the appeal ‘That the appellant is not guilty’. The appeal was, accordingly, an appeal against conviction and sentence pursuant to s 254 of the Criminal Procedure Act 2009.  Such an appeal leads to a rehearing in the County Court of the original prosecution.

1. The appeal came before Judge Chettle in the County Court on 16 September 2014.  The charge was reheard…