Hoe v Vella - [2009] VSC 600

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 6343 of 2008

ALEX HOE	Plaintiff
v
SIMON JOSEPH VELLA AND ANOR	Defendants

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JUDGE:	OSBORN J
WHERE HELD:	Melbourne
DATE OF HEARING:	10 November 2009
DATE OF JUDGMENT:	17 December 2009
CASE MAY BE CITED AS:	Hoe v Vella
MEDIUM NEUTRAL CITATION:	[2009] VSC 600

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CIVIL – Charge of breach of s 30(1) of the Road Safety Act 1986 – Appeal to County Court – Order in the nature of certiorari sought quashing County Court order – Claim evidence did not support charge, the charge was not applicable and the Plaintiff could not at law have been convicted – Claim a charge under s 30AA of the Road Safety Act 1986 was more appropriate – Craig v South Australia (1995) 184 CLR 163 – Nature of the record of proceedings – Evidence relied on by the Plaintiff not part of the record – Plaintiff’s claim dismissed – ss 3, 28A, 30, 30AA and 84 of the Road Safety Act 1986 – ss 3, 188 and 189 of the Infringements Act 2006.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr P. Billings	John V Hayes & Co Pty Ltd
For the First Defendant	Ms D. Piekusis	Director of Public Prosecutions
For the Second Defendant	No appearance	Victorian Government Solicitor

TABLE OF CONTENTS

Background......................................................................................................................................... 1

The s 30AA argument........................................................................................................................ 5

The licence expiry argument.......................................................................................................... 14

HIS HONOUR:

On 26 March 2008 his Honour Judge Parsons of the County Court refused an appeal from the Magistrates’ Court by the plaintiff against conviction upon a charge of breach of s 30(1) of the Road Safety Act 1986 (‘the RS Act’).

No further right of appeal lies with respect to the decision of his Honour, but the plaintiff now seeks an order in the nature of certiorari quashing the County Court order.

He further seeks a consequential order directing the County Court to record that the charge under s 30(1) should be dismissed.

The orders are sought on the following grounds:

(a) That his Honour Judge Parsons, under the circumstances, erred in law in refusing to dismiss a charge under s. 30(1) of the Road Safety Act 1986 brought against the Plaintiff.

(b) That his Honour Judge Parsons denied the Plaintiff natural justice and/or erred at law and/or there was an error on the face of the record in convicting the Plaintiff of an offence under Section 30(1) of the Road Safety Act 1986 where under the circumstances:

(i) the evidence did not support the charge alleged; and/or

(ii) the charge alleged was not applicable to the Plaintiff insofar that the proper charge to bring against him was a charge under s 30AA of the Road Safety Act 1986; and/or

(iii) the Plaintiff could not at law have been convicted of a charge brought under s. 30(1) of the Road Safety Act 1986 given that his licence had been suspended under the Infringements Act 2006.

Background

The…

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 Hoe v Vella

Details

AGLC: Hoe v Vella [2009] VSC 600
Case: [2009] VSC 600
Decision Date: 17 December 2009

CaseChat Overview and Summary

In the matter of Hoe v Vella, the plaintiff, Hoe, appealed to the Supreme Court of Victoria to challenge an order made in the County Court of Victoria. Hoe had been charged with a breach of s 30(1) of the Road Safety Act 1986 and sought to quash the County Court order, arguing that the evidence did not support the charge, that the charge was not applicable, and that a charge under s 30AA of the Road Safety Act 1986 was more appropriate. The County Court had dismissed Hoe's appeal on the basis that the evidence was part of the record of proceedings and supported the charge. Hoe contended that the evidence relied on by the County Court was not part of the record, and that the charge under s 30(1) was not applicable, as it was intended to cover situations where the accused had a reasonable excuse to not comply with a direction, which was not present in this case.

The court considered whether the evidence relied on by the County Court was part of the record of proceedings and whether the charge under s 30(1) was applicable. The court noted that the evidence relied on by the County Court was not part of the record and that the charge under s 30(1) was not applicable, as it was intended to cover situations where the accused had a reasonable excuse to not comply with a direction, which was not present in this case. The court also considered whether a charge under s 30AA of the Road Safety Act 1986 was more appropriate. The court held that a charge under s 30AA was not more appropriate, as it was intended to cover situations where the accused had a reasonable excuse to not comply with a direction, which was not present in this case.

The court dismissed Hoe's appeal, holding that the evidence relied on by the County Court was not part of the record of proceedings and that the charge under s 30(1) was applicable. The court held that a charge under s 30AA of the Road Safety Act 1986 was not more appropriate, as it was intended to cover situations where the accused had a reasonable excuse to not comply with a direction, which was not present in this case. The court also held that Hoe's claim was barred by s 84 of the Road Safety Act 1986, which provided that an appeal could not be made unless the appellant showed that the decision was incorrect or that there was some other irregularity in the proceedings. The court dismissed Hoe's appeal and affirmed the order of the County Court.

Orders