Kay v DPP (Cth) - [2003] VSC 264

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

No. 1002 of 2003

IN THE MATTER of a Summons on Originating Motion under Order 56 of the
Supreme Court (General Civil Procedures) Rules 1996

AND IN THE MATTER of the Crimes Act 1914 (Cth) and Crimes Regulations (Cth)

AND IN THE MATTER of the making of the Order by His Honour Judge Campbell at the County Court at Melbourne in the State of Victoria on 4 April 2003

IAN ALBERT KAY

Plaintiff

THE COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS

- and -

COUNTY COURT OF VICTORIA

First Defendant

Second Defendant

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JUDGE:	GILLARD J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	9 July 2003
DATE OF JUDGMENT:	16 July 2003
CASE MAY BE CITED AS:	Kay v D.P.P. (C’Wealth) & Anor
MEDIUM NEUTRAL CITATION:	[2003] VSC 264

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JUDICIAL REVIEW – County Court – Application to quash orders – Imprisonment after breach of recognisance – No errors on face of record – No denial of natural justice.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	In person
For the First Defendant	Mr John Dickie	DPP (C’Wealth)
For the Second Defendant	No appearance

HIS HONOUR:

This is the return of a summons in a proceeding instituted by originating motion in which the plaintiff seeks judicial review, pursuant to Order 56 of the Rules of Court, of orders made by His Honour Judge Campbell in the County Court on 4 April 2003. By reason of Rule 56.02(1), the proceeding must be commenced within 60 days after the date of the orders made by the judge. The plaintiff’s application is out of time. He seeks an extension of time pursuant to Rule 56.02(3).

Parties

The plaintiff, Ian Albert Kay (“Mr Kay”), is presently incarcerated at the Fulham Correctional Centre. He has been convicted in the past of a number of criminal offences. From time to time, he asserts, he is at a disadvantage when involved in the legal system unrepresented. I interpolate to observe that Mr Kay is not unintelligent, has been involved, as he repeatedly asserted, in some 53 court appearances over the last 10 years, is a vexatious litigant, has sought and obtained legal advice from a number of lawyers over the years, and is not unfamiliar with courts or court procedures. He represented himself before the court in this proceeding. He is not overawed in court nor is he reticent in putting forward his views and submissions. Indeed on the contrary, he is forceful.

The first defendant, the Commonwealth Director of Public Prosecutions ("DPP") has laid charges against Mr Kay in the past, and it is the prosecution and finalisation of those charges which have led to the present proceeding.

The second defendant, the County Court of Victoria, is joined by reason of Rule 56.01(2)(d) of the Rules. Mr Kay should have served the court with copies of his initiating documents and supporting material. There is no evidence that he has done so. I decided in the circumstances to proceed with…

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 Kay v DPP (Cth)

Details

AGLC: Kay v DPP (Cth) [2003] VSC 264
Case: [2003] VSC 264
Decision Date: 16 July 2003

CaseChat Overview and Summary

The County Court was asked to review the legality of orders made by another court that resulted in the imprisonment of the applicant following a breach of recognisance. The applicant argued that the orders were unlawful and sought to have them quashed. The matter was before the Court on an application for judicial review, where the applicant contended that the orders were made without proper legal authority and without adherence to the principles of natural justice. The central legal issues were whether the orders were erroneous on the face of the record and whether the applicant was denied natural justice in the process that led to their imprisonment.

The Court examined the orders in question and the circumstances under which they were made. It considered whether there were any apparent errors in the legal process and whether the applicant had a right to be heard before the orders were made. The Court found that the orders were within the jurisdiction of the court that made them and that there were no errors on the face of the record. Furthermore, the Court held that the applicant had not been denied natural justice as they had been given an opportunity to be heard before the orders were made. Consequently, the Court determined that the application for judicial review should be dismissed as the orders were lawful and there was no basis for the Court to intervene.

In light of the findings, the Court dismissed the application for judicial review. The Court held that the orders made by the other court were lawful and that the applicant had not been denied natural justice. The Court's decision was based on a detailed examination of the orders and the circumstances surrounding their making. As a result, the applicant's imprisonment following the breach of recognisance was upheld. The Court did not make any further orders in relation to the matter.

Orders