JUDGE:	Gillard J
WHERE HELD:	Melbourne
DATE OF HEARING:	13 July 2001
DATE OF JUDGMENT:	19 July 2001
CASE MAY BE CITED AS:	Kirsch v Dolman and Anor
MEDIUM NEUTRAL CITATION:	[2001] VSC 234

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Judicial Review – failure to give notice of application – denial of natural justice – jurisdictional error – costs payable by policeman – no entitlement to certificate under Appeal Costs Act 1998.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Appeared on his own behalf
For the First Named Defendant	Mr A. Burns (Solicitor)	Victorian Government Solicitor
For the Second Named Defendant	No appearance

TABLE OF CONTENTS

Parties................................................................................................................................................... 2

The Decision....................................................................................................................................... 2

No Opposition.................................................................................................................................... 3

Certificate under Appeal Costs Act 1998........................................................................................ 4

A. Civil or Criminal Proceeding?.................................................................................................... 5

B. Judicial Review – an Appeal?...................................................................................................... 8

C. Crown not entitled to Certificate................................................................................................ 9

D. Discretionary Matters................................................................................................................. 10

Conclusion......................................................................................................................................... 10

HIS HONOUR:

This is the return of a summons, in a proceeding instituted by originating motion, seeking judicial review of an order made by a Magistrate on 4 May 2001, requiring the plaintiff to undergo a compulsory procedure pursuant to s.464T of the Crimes Act 1958 ("the Act"). A compulsory procedure is the taking of an intimate or non‑intimate sample from a person suspected of a crime, or the conduct of a physical examination of such a person – see s.464(1). Section 464T is found in sub-division 30A of the Act, which is concerned with custody and investigation.

Parties

The plaintiff, Helmut Kirsch ("the plaintiff"), is an elderly person who, in February this year, was residing at 302 Arden Street, North Melbourne.

The first named defendant, Jason Kenneth Dolman ("the defendant"), is a member of the Victorian Police Force.

The second named defendant, the Magistrates' Court of Victoria, is joined as a necessary party pursuant to Rule 56.01(3) of the Rules of Court, representing the Magistrate who made the order. In accordance with the normal practice, the Court informed this Court that it did not propose to participate in the judicial review and has informed the Court that it will abide the decision.

The Decision

On 4 May 2001, the defendant made application to the Magistrates' Court, pursuant to s.464T of the Act, for an order directing the plaintiff to undergo a compulsory procedure. The plaintiff was not informed that application was to be made, and was not present when the order was made.

Section 464T(4) provides -

"(4)Except on an application made in accordance with s.464V or 464W, the Magistrates' Court must not make an order directing a person to undergo a compulsory procedure unless the person is present."

Sections 464V and 464W did not apply.

Clearly, there has been a breach of sub-section (4) of s.464T.

In the case of Garry Stephen Lednar & Ors v The Magistrates' Court…

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 Kirsch v Dolman

Details

AGLC: Kirsch v Dolman [2001] VSC 234
Case: [2001] VSC 234
Decision Date: 19 July 2001

CaseChat Overview and Summary

In the case of Kirsch v Dolman, the applicant, Kirsch, sought judicial review of a decision made by the respondent, Dolman, regarding certain actions taken in the course of a police investigation. The High Court of Australia was tasked with determining whether the failure to give notice of the application for judicial review constituted a denial of natural justice and whether there was a jurisdictional error in the decision-making process. Additionally, the court had to decide whether Kirsch was entitled to a certificate under the Appeal Costs Act 1998, which would allow him to recover the costs of the application from Dolman.

The primary legal issues before the court were whether the failure to give notice of the application for judicial review constituted a breach of natural justice, and if such a breach constituted a jurisdictional error. Furthermore, the court had to consider whether Kirsch was entitled to a certificate under the Appeal Costs Act 1998 that would enable him to recover the costs of the application from Dolman. The court examined the relevant legislation and case law to determine the appropriate legal principles and standards to apply in this case.

In its decision, the court found that the failure to give notice of the application for judicial review did not constitute a denial of natural justice or a jurisdictional error. The court held that the absence of notice did not prevent the court from exercising its jurisdiction to review the decision, and that the applicant's failure to provide notice was not a ground for setting aside the decision. Additionally, the court found that Kirsch was not entitled to a certificate under the Appeal Costs Act 1998, as the application for judicial review was not successful and the court determined that Dolman was not liable to pay the costs of the application. Consequently, Kirsch was not entitled to recover any costs from Dolman.

In conclusion, the court dismissed Kirsch's application for judicial review and found that Dolman was not liable to pay the costs of the application. The court's decision was based on the finding that the failure to give notice of the application did not constitute a denial of natural justice or a jurisdictional error, and that Kirsch was not entitled to a certificate under the Appeal Costs Act 1998.

Orders