Goldberg v Stocker - [2016] VSC 20

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S CI 2014 6539

DAVID GOLDBERG	Plaintiff
v
DERYCK GEOFFREY STOCKER	First Defendant
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 Stocker and anor
MEDIUM NEUTRAL CITATION:	[2016] VSC 20

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PRACTICE AND PROCEDURE – originating motion in Form 5B seeking judicial review – Hardiman letter from the County Court - discussion as to the availability of default judgment – Supreme Court (General Civil Procedure) Rules 2015 rr 5.02(2); 56.01(2); 45.03; 45.05.

JUDICIAL REVIEW – summary dismissal – appeal to County Court against sentence imposed by magistrate - plaintiff says he signed an appeal against sentence only in error - County Court refused leave to appeal against conviction out of time – plaintiff alleges the County Court acted at the instance of ASIO – alleged fraud by Deputy Registrar of the Magistrates’ Court in relation to the notice of appeal and collusion with prosecution - other alleged errors of law and breaches of procedural fairness – all grounds summarily dismissed save for the assertion that the plaintiff was denied procedural fairness by the refusal of the Court to allow him to sit at the bar table – Criminal Procedure Act 2009 s 263 – Civil Procedure Act 2010 ss 62, 63 and 64.

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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

Facts1
This proceeding............................................................................................................................. 2

Default judgment............................................................................................................................... 4

Proceeding in the County Court..................................................................................................... 9

Judicial Review................................................................................................................................. 12

Nature of the jurisdiction to review......................................................................................... 12
Grounds in the originating motion.......................................................................................... 13
Further grounds: fraud and collusion..................................................................................... 15
Application for summary dismissal........................................................................................ 16

Discussion of grounds..................................................................................................................... 17

Ground 1: acting beyond jurisdiction...................................................................................... 18
Grounds 2 and 8: no evidence and unreasonable.................................................................. 19
Ground 3: not being permitted to sit at the bar table............................................................ 20
Ground 4....................................................................................................................................... 22
Ground 5: relationship between withdrawal of one charge and conviction on the other 23
Grounds 6 and 7: failure to apply rules of evidence............................................................. 24
Ground 9....................................................................................................................................... 26
Fraud and collusion.................................................................................................................... 26

Discretion to refuse summary judgment..................................................................................... 27

Orders................................................................................................................................................. 28

HER HONOUR:

Introduction
Facts

The plaintiff was convicted by the Magistrates’ Court sitting at Moorabbin Justice Centre on 23 September 2014 of two traffic offences arising, in the prosecution case, from his use of a motor vehicle at Brewer Road, Bentleigh on 27 May 2013. The first offence was failing to give his name and address pursuant to s 61(1)(c) of the Road Safety Act 1986 (‘ Road Safety Act’) in respect of an accident occasioning property damage. The second offence of which he was convicted was charged as an offence in breach of clause 248 of the Road Safety Vehicle Regulations 2009 (‘Road Safety Regulations’) that, as the driver of a vehicle carrying a load, he failed to appropriately secure…

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 Goldberg v Stocker

Details

AGLC: Goldberg v Stocker [2016] VSC 20
Case: [2016] VSC 20
Decision Date: 5 February 2016

CaseChat Overview and Summary

In Goldberg v Stocker, the plaintiff, Goldberg, sought judicial review of decisions made by the County Court. The primary dispute revolved around the denial of Goldberg's appeal against a sentence imposed by a magistrate and the refusal of leave to appeal against his conviction out of time. Goldberg contended that he had signed an appeal against sentence erroneously and alleged various procedural errors and collusion, including claims that the County Court acted on behalf of the Australian Security Intelligence Organisation (ASIO). The Supreme Court was tasked with determining the validity of these claims.

The legal issues before the court included whether the County Court had correctly exercised its discretion under the Supreme Court (General Civil Procedure) Rules 2015 to summarily dismiss Goldberg's application for judicial review. Key points of contention were whether there were any grounds for judicial review, specifically whether Goldberg was denied procedural fairness by being refused the opportunity to sit at the bar table during his appeal. Additionally, the court had to consider whether the allegations of fraud, collusion, and other procedural errors were substantiated.

The Supreme Court, after examining the evidence and arguments presented, found that the County Court's decision to summarily dismiss the application was justified. The court held that there were no valid grounds for judicial review, except for the procedural fairness issue regarding Goldberg's right to sit at the bar table. However, the court concluded that this did not constitute a breach of procedural fairness sufficient to warrant judicial intervention. Consequently, all grounds of appeal were dismissed.

The final orders of the court were that the appeal against the County Court's decision was dismissed with costs. The court found no merit in the plaintiff's claims of fraud, collusion, or procedural errors, affirming the County Court's exercise of its discretion to summarily dismiss the application for judicial review.

Orders