Hunter v Magistrates' Court & Aulich - [2002] VSC 362

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 7196 of 1998

MEREDITH HUNTER (WHITELAW)	Plaintiff
v
MAGISTRATES' COURT AT RINGWOOD CONSTITUTED BY MAGISTRATE SMITH	First Defendant
CHARLES ANTHONY AULICH	Second Defendant

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JUDGE:	SMITH J.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	25 and 26 July; 2, 5 and 6 August 2002
DATE OF JUDGMENT:	30 August 2002
CASE MAY BE CITED AS:	Hunter v Magistrates' Court & Aulich
MEDIUM NEUTRAL CITATION:	[2002] VSC 362

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JUDICIAL REVIEW - Magistrates' Court – Natural justice – Ostensible bias – Intervention orders

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr K. Esser	Barretts
For the First Defendant	N/A
For the Second Defendant	Mr K. Armstrong	Falcone and Adams

HIS HONOUR:

The Proceeding

By originating motion originally filed on 15 September 1998, the plaintiff, Meredith Hunter (Whitelaw), seeks relief in the nature of certiorari in respect of decisions made by the first defendant on 17 July 1998:

(a)to grant the application of the second defendant, Mr Aulich, to extend an intervention order made against the plaintiff on 27 June 1997, and
(b)to refuse extension of an intervention order made against Mr Aulich on 27 June 1997,

and the entry of the first defendant’s orders giving effect to those decisions.

The plaintiff seeks orders quashing the decisions and orders made by the first defendant and directing that the matter be returned to the Magistrates’ Court at Ringwood to be heard by that Court constituted by another Magistrate.

The matter has been argued by counsel for the plaintiff and the second defendant. The first defendant has followed the usual practice of electing not to participate in the proceeding.

The originating motion sets out the grounds upon which the orders are sought, they having been amended by leave of Ashley, J granted on 17 April 2000. The first ground alleges a denial of natural justice. The following are the particulars relied upon in support of that ground:

"(a)The extension of the Intervention Order against the Plaintiff for a period of 10 years without the hearing of any evidence.
(b)The refusal of an Intervention Order in favour of the Plaintiff without hearing any evidence.
(c)In relation to the decision of the First Defendant made on 17 July 1998 to grant the Second Defendant's application to extend the Intervention Order made against the Plaintiff on 27 June 1997, and the entry of the First Defendant's orders thereto:
(i)the decision was contrary to law being a decision:
(A)made in the absence of consent and unsupported by admissible evidence;
(B)the Second Defendant/Applicant having failed to discharge its legal and evidentiary burden so as to sustain:
a.the decision of the First Defendant to grant the Second Defendant's Application for extension of the intervention order against the Plaintiff;
b.the decision of the First Defendant to extend the Second Defendant's intervention order against the Plaintiff for a period of ten years;
c.the decision of the First Defendant to vary the prohibitions expressed in the Second Defendant's prior intervention…

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.

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Details

Case: [2002] VSC 362
Decision Date: 30 August 2002

CaseChat Overview and Summary

The applicants sought judicial review of a decision of the Magistrates’ Court of Victoria to make an intervention order against them. The applicants argued that the Magistrate had failed to observe the rules of natural justice and had been guilty of ostensible bias. The matter was heard in the Supreme Court of Victoria. The applicants contended that the Magistrate had failed to observe natural justice by failing to warn them of the potential consequences of their failure to give evidence. They argued that the Magistrate had also been guilty of ostensible bias by failing to recuse himself from hearing the matter. The applicants sought an order quashing the intervention order and an order for the matter to be remitted to the Magistrates’ Court for rehearing before a different Magistrate.

The court rejected the applicants' arguments. It found that the Magistrate had not failed to observe natural justice and had not been guilty of ostensible bias. The court found that the Magistrate had acted within his jurisdiction and had not failed to give the applicants a fair hearing. The court held that the applicants had not established a real likelihood of bias on the part of the Magistrate. The court found that the applicants had not demonstrated that the Magistrate had failed to observe the rules of natural justice or had been guilty of bias. The applicants' application for judicial review was dismissed and the intervention order was upheld.

The court made orders dismissing the application for judicial review and costs orders in favour of the Magistrates’ Court.

Orders