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Gregory v The Queen

Gregory v The Queen

Case [2017] VSCA 15 15 February 2017

Judicial Review

Statutory Construction

Principle of Legality

Administrative Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2016 0124

MENDO KITANOVSKI	Applicant
v
MELTON CITY COUNCIL	First Respondent
and
COUNTY COURT OF VICTORIA	Second Respondent

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JUDGES:	KYROU and McLEISH JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	10 February 2017
DATE OF JUDGMENT:	15 February 2017
MEDIUM NEUTRAL CITATION:	[2017] VSCA 15
JUDGMENT APPEALED FROM:	Kitanovski v Melton City Council [2016] VSC 474 (Keogh J)

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ADMINISTRATIVE LAW – Application for leave to appeal against order of Trial Division judge dismissing application for judicial review of order of County Court judge – Conviction for offences involving use of land without planning permit – Whether charges valid – Whether Trial Division judge misconstrued Planning and Environment Act 1987 ss 6, 126(2) and Melton Planning Scheme cl 35.04-1 – Whether Trial Division judge failed to give effect to principle of legality – Criminal Procedure Act 2009 s 6, sch 1 cls 1, 3 – Application for leave to appeal refused.

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APPEARANCES:	Counsel	Solicitors
The Applicant appeared in person (assisted by his McKenzie friend Nigel Waddington)
For First Respondent	Mr R Appudurai (solicitor)	Russell Kennedy
No appearance for Second Respondent

KYROU JA

McLEISH JA:

Introduction and summary

The applicant seeks leave to appeal against an order made by a judge of the Trial Division on 11 August 2016 dismissing his application for judicial review of a decision of a judge of the County Court to convict him of six charges under s 126(2) of the Planning and Environment Act 1987 (‘P&E Act’).[1]
[1]Kitanovski v Melton City Council [2016] VSC 474 (‘Reasons’).

On 6 June 2014, the Melton City Council (‘Council’) brought charges under the P&E Act against the applicant which, relevantly, related to the use of land in Plumpton that he and his brother owned (‘Land’).[2] The charges alleged that on various dates in 2013 and 2014, the applicant was the owner of the Land and that the Land ‘was used for the purpose of the deposit of soil and other related materials without a planning permit in contravention of clause 35.04–1 (Green Wedge Zone) of the Melton Planning Scheme’ (‘Planning Scheme’). Each charge specified that it was for an offence under s 126(2) of the P&E Act.
[2]The Council also brought charges against the applicant’s brother and the applicant’s company but those charges are not presently relevant.

On 30 April 2015, the Sunshine Magistrates’ Court found the applicant guilty of 18 charges, imposed an aggregate fine of $27,000 with conviction and ordered him to pay costs. The applicant appealed to the County Court.

On 14 October 2015, Judge Montgomery held that the use of the Land for the purpose of depositing soil and other related materials required a planning permit and that the applicant had used the Land for that purpose without such a permit. He dismissed 12 of the charges, found the applicant guilty of six charges, fined him an aggregate sum of $10,000 and ordered him to pay costs.

On 14 December 2015, the applicant applied…

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 Gregory v The Queen

Details

AGLC: Mendo Kitanovski v Melton City Council and County Court of Victoria [2017] VSCA 15
Case: [2017] VSCA 15
Decision Date: 15 February 2017

CaseChat Overview and Summary

The case of Gregory v The Queen concerns an application for leave to appeal against an order of the Trial Division judge which dismissed an application for judicial review of an order of the County Court judge. The applicant, Gregory, was convicted of offences involving the use of land without a planning permit. The dispute pertains to the validity of the charges against Gregory and whether the Trial Division judge misconstrued certain sections of the Planning and Environment Act 1987 and the Melton Planning Scheme. Specifically, Gregory argued that the Trial Division judge erred in interpreting sections 6, 126(2) of the Planning and Environment Act 1987, and clause 35.04-1 of the Melton Planning Scheme. Furthermore, Gregory contended that the Trial Division judge failed to apply the principle of legality as required under the Criminal Procedure Act 2009.

The legal issues before the court were whether the Trial Division judge correctly interpreted the relevant statutory and planning scheme provisions and whether the principle of legality was appropriately applied. The applicant argued that the Trial Division judge did not properly consider the statutory provisions and planning scheme, leading to an incorrect interpretation that undermined the validity of the charges. Gregory further argued that the Trial Division judge should have applied the principle of legality, ensuring that any ambiguity in the statutes and planning scheme was resolved in his favour. This principle requires that the statutory provisions be construed in a way that upholds the rule of law and the legal rights of the individual.

The court examined the interpretation of the statutory provisions and the planning scheme, as well as the application of the principle of legality. The court found that the Trial Division judge correctly interpreted the relevant sections and clause. It was held that the Trial Division judge properly applied the statutory provisions and planning scheme, and there was no error in the interpretation that would have affected the validity of the charges against Gregory. The court also found that the principle of legality was correctly applied, as there was no ambiguity in the statutory provisions and planning scheme that warranted a different interpretation. Consequently, the application for leave to appeal was refused, and the decision of the Trial Division judge was upheld.

Orders