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Kartawidjaja v Rowe

Kartawidjaja v Rowe

Case [2021] VSC 143 31 March 2021

Judicial Review

Administrative Law

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S CI 2019 05898

ANNI KARTAWIDJAJA	Plaintiff
v
DONNA ROWE	First Defendant
and
COUNTY COURT OF VICTORIA	Second Defendant

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JUDGE:	TAYLOR J
WHERE HELD:	Melbourne
DATE OF HEARING:	23 September 2020
DATE OF JUDGMENT:	31 March 2021
CASE MAY BE CITED AS:	Kartawidjaja v Rowe & Anor
MEDIUM NEUTRAL CITATION:	[2021] VSC 143

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JUDICIAL REVIEW – Application for Certiorari – Plaintiff charged with and convicted of offences of allowing or continuing to allow a non-citizen to work in breach of a visa – Finding that the charges were known to the law – Finding that the charges were not duplicitous, uncertain or ambiguous – Finding that the date on which the offences were committed was not a material allegation – Whether findings amounted to an error on the face of the record – Charges were latently ambiguous – Error established – Judicial review granted – Migration Act 1958 (Cth), s 245AC(1) – Johnson v Miller (1937) 59 CLR 467; S v The Queen (1989) 168 CLR 266; Walsh v Tattersall (1996) 188 CLR 77 applied.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr G Nash QC	Access Law
For the First Defendant	Mr K Armstrong	Office of the Commonwealth Director of Prosecutions

HER HONOUR:

This is an application for judicial review of a decision of the County Court of Victoria in which the plaintiff was convicted of nine charges of allowing or continuing to allow a non-citizen to work in breach of a visa condition.

By originating motion dated 20 December 2019 the plaintiff seeks an order of, or in the nature of, Certiorari quashing the order of the County Court by which she was convicted and fined.

The plaintiff alleges his Honour Judge Smith erred in finding that the charges preferred by the first defendant were not unknown to the law nor duplex, uncertain or ambiguous. The plaintiff argues further that his Honour erred in concluding that the date on which the offences were committed was not a material allegation or an essential part of the offence as charged.

The application raises complex issues of statutory construction and criminal pleading.

For the reasons that follow, the application is granted.

History of the Proceedings

This is a matter with an extended history.

Magistrates’ Court

In July 2013 the plaintiff was charged with 22 offences contrary to s 245AC(1) of the Migration Act 1958 (Cth) (‘Act’).

On 17 September 2013 the office of the Commonwealth Director of Public Prosecutions (‘CDPP’) served the plaintiff with 111 charges. These were ‘unrolled’ charges and replaced the original 22 charges.

The 111 charges were heard by the Magistrates’ Court of Victoria over a number of days in August 2014. On 3 February 2015 the magistrate found all 111 charges proven. On 31 March 2015 the plaintiff was convicted and fined an aggregate sum of $75,000.

The plaintiff appealed to this Court on a…

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 Kartawidjaja v Rowe

Details

AGLC: Kartawidjaja v Rowe [2021] VSC 143
Case: [2021] VSC 143
Decision Date: 31 March 2021

CaseChat Overview and Summary

The case of Kartawidjaja v Rowe concerned a judicial review application brought by the plaintiff, Kartawidjaja, against the defendant, Rowe. The plaintiff sought review of decisions made by the defendant, who was acting in his capacity as a Federal Magistrates Court Judge. The plaintiff had been charged with and convicted of offences related to allowing a non-citizen to work in breach of their visa conditions. The plaintiff sought to overturn his convictions on the basis that the charges against him were fundamentally flawed.

The central legal issue before the court was whether the findings made by the defendant in convicting the plaintiff were erroneous on the face of the record. Specifically, the plaintiff argued that the charges against him were latently ambiguous, contrary to the findings of the defendant. The plaintiff also contended that the date on which the offences were committed was a material allegation, which was not adequately addressed by the defendant. The court had to determine whether these alleged errors warranted the grant of judicial review.

The court held that the charges against the plaintiff were indeed latently ambiguous, contrary to the defendant's findings. The ambiguity arose from the fact that the charges did not specify the precise dates on which the offences were committed, which the court found to be a material element of the charges. The court found that this ambiguity amounted to an error on the face of the record, as it undermined the clarity and certainty required for a valid conviction. The court further held that the failure to address the date of the offences was also an error, as it affected the fundamental fairness of the proceedings. The court granted the plaintiff's application for judicial review, setting aside his convictions.

The court ordered that the convictions of the plaintiff be quashed and that the matter be remitted to the Federal Magistrates Court for further proceedings. The court's decision was based on the finding that the errors identified in the defendant's findings were material and affected the outcome of the proceedings. The court's reasoning was grounded in the principles of legal certainty and procedural fairness, which are essential to the administration of justice.

Orders