Hastings v Brennan

[2005] VSC 269

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No.  4508 of 2003

ANTHONY RICHARD HASTINGS	Plaintiff
v
NIGEL BRENNAN and COUNTY COURT OF VICTORIA	Defendants

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JUDGE:	HARPER J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	22 JULY 2005
DATE OF RULING:	22 JULY 2005
CASE MAY BE CITED AS:	HASTINGS v BRENNAN & ANOR
MEDIUM NEUTRAL CITATION:	[2005] VSC 269

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ORDERS –Application for judicial review of appeal from Magistrates’ Court to County Court - Judgment for the plaintiff – Form of consequential orders – Effect of quashing orders below – No findings of fact – No power to make orders in relation to the Magistrates’ Court matter.

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APPEARANCES:	Counsel	Solicitors
Mr Hastings in person
For the First Defendant	Ms K. Judd	Victorian Government Solicitor

HIS HONOUR:

1. In the matter of Hastings v. Brennan[1], again I delivered judgment on 28 June 2005, as I did in the matter of Tantram v Courtney.  Mr Hastings has submitted that in those circumstances, that is where he has succeeded in his application to have the decision of the County Court quashed, I should also make orders which will have the effect of extinguishing the conviction and penalty recorded in the Magistrates' Court at Bairnsdale.

   [1]Hastings & Anor v Brennan& Anor; Tantram v Courtney & Anor [2005] VSC 228

1. I have sympathy with the position of the plaintiffs.  The proceedings have been drawn out, they have doubtless involved considerable expense, and they have certainly involved, on Mr Hasting’s part, as I accept, a great deal of time and research, the results of which I have found to be of assistance both in the hearing of the application itself and this morning.  I have been impressed with the diligence with which Mr Hastings has researched the law, and the care and politeness with which he has put his submissions.

1. I am nevertheless constrained by the law.  It is of course my sworn duty to administer justice according to law.  I cannot exceed the powers which have been conferred upon me.  The rule of law would be negated were judges, of all people, to move beyond the territory circumscribed by the powers lawfully given to them.  Sympathetic as one might be to the difficulties which individual litigants sometimes face given the complexities of the law, one is tempted to exercise authority to produce what might be thought to be a just result, even if by doing so one exceeds one's powers.  I am sworn to resist that temptation.

1. In my opinion a single judge of this court when hearing an application for certiorari to quash a decision of the County Court on an appeal from the Magistrates' Court can do no more than quash that County Court decision, and then of course only if the relevant grounds have been made out.  In my opinion Mr Hastings and Mr Tantram did make out grounds that required the quashing of the County Court decision.  That was a decision on an appeal from the magistrate.  Once the decision on the appeal is quashed, then there is no decision on the appeal.

1. As I understand it, if there is no decision on the appeal the original orders of the Magistrates' Court remain.  I certainly have no power, no matter what evidence has been put before me, to enter into an adjudication upon the merits of that evidence.  Whether I wished to or not, I could not on this hearing determine whether the logging activities that the plaintiffs sought to hinder were lawful.  I have come to no decision about that and nor can I.

1. In those circumstances I think it appropriate that having quashed the decision of the County Court the matter be remitted to the County Court.  The effect will be that the plaintiffs can now decide whether or not they wish to pursue their appeal in the County Court against the decision of the Magistrates' Court at Bairnsdale.  They will not be out of time should they seek to continue to prosecute the appeal.  If they do not wish to prosecute the appeal, then presumably if they advise the first defendant in each case of that position, then the matter will not proceed to a rehearing in the County Court, but that is a matter for the parties to work out for themselves.

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