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Kuek v Wellens

Kuek v Wellens

Case [2000] VSC 326 18 August 2000

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SUPREME COURT OF VICTORIA
COMMON LAW DIVISION	Not Restricted

No. 175 of 1999

GABRIEL KUEK	Plaintiff
v
ELECTRA WELLENS and COUNTY COURT OF VICTORIA	Defendants

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JUDGE:	Gillard J
WHERE HELD:	Melbourne
DATE OF HEARING:	27 July 2000
DATE OF JUDGMENT:	18 August 2000
CASE MAY BE CITED AS:	Kuek v Wellens & Anor
MEDIUM NEUTRAL CITATION:	[2000] VSC 326

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Judicial Review – relief sought in form of certiorari – what constitutes record – evidence does not - no error of law on the face of the record – declaratory relief also sought – principles – no error of law demonstrated – no basis for a declaration.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr D. Perkins	Messrs Kuek & Associates
For the First Defendant	Mr J. McArdle QC	Solicitor for Public Prosecutions
For the Second Defendant	No appearance	Victorian Government Solicitor

HIS HONOUR:

I have before me a summons in a proceeding instituted by originating motion seeking judicial review pursuant to Order 56 of the Rules of Court of a decision of His Honour Judge Neesham of the County Court of Victoria.

Parties

The plaintiff, Gabriel Kuek ("Mr Kuek"), is a barrister and solicitor practising in this State.

The first defendant, Electra Wellens ("Senior Constable"), is a senior constable of police. The second defendant, the County Court of Victoria, is joined as required by Rule 56.01(3) representing His Honour Judge Neesham whose decision is subject to the review.

There was no appearance by the second defendant in accordance with the usual practice, having informed the Court that it would not participate in the proceeding and would abide the result.

Proceeding in Magistrates' Court

On 30 November 1997 the senior constable laid a charge against Mr Kuek. The charge alleged –

"The defendant at Parkville on 6 January 1997 being the driver of a vehicle on a highway to wit Elliot Avenue and in a speed zone, between Mcarthur Road and Flemington Road did exceed the speed indicated by numerals on the restriction sign at the beginning of the zone, being 60 (highest speed 81 kph)."

The charge came on for hearing at the Melbourne Magistrates' Court on 3 June 1999. Mr Kuek was convicted and fined $180, and ordered to pay costs totalling $133.

He appealed to the County Court.

County Court appeal

The County Court appeal was heard on 10 April 2000 by His Honour Judge Neesham. The senior constable, the informant, was represented by counsel as was Mr Kuek. Evidence was given by and on behalf of the informant and Mr Kuek gave evidence.

The learned judge found that the charge was proven and he dismissed the appeal.

Judicial review

There is no right of appeal from a decision of a County Court judge hearing an appeal from a Magistrates' Court except a limited right of appeal where the penalty is increased on appeal to imprisonment (see Magistrates' Court Act 1989, s.91).

Accordingly, the only avenue open to Mr Kuek to challenge the decision is by…

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 Kuek v Wellens

Details

AGLC: Kuek v Wellens [2000] VSC 326
Case: [2000] VSC 326
Decision Date: 18 August 2000

CaseChat Overview and Summary

In the case of Kuek v Wellens, the matter was heard in the Federal Court of Australia, where the applicant sought judicial review of a decision made by the respondent. The applicant, Kuek, sought relief in the form of certiorari to quash a decision made by the respondent, Wellens, as well as declaratory relief to clarify the legal position between the parties. The primary focus of the case was whether the decision in question contained an error of law that warranted the issuance of certiorari and whether there was a basis for making a declaration.

The court was required to determine the nature and scope of the record in the context of the application for certiorari. It was established that the record must consist of the actual decision-making process and not the evidence presented during the proceedings. The court considered whether there was an error of law apparent on the face of the record and whether such an error justified the granting of certiorari. Additionally, the court had to assess whether there was a basis for providing declaratory relief, considering the principles that govern such relief.

The court concluded that the evidence presented by the applicant did not form part of the record, and thus, could not be considered in the review process. It was determined that there was no error of law on the face of the record, and therefore, the application for certiorari was not warranted. Furthermore, the court found that no error of law had been demonstrated in relation to the sought declaratory relief, and accordingly, there was no basis for making a declaration. Consequently, the application for both certiorari and declaratory relief was dismissed.

The Federal Court of Australia ordered that the application for judicial review be dismissed in its entirety, with no orders for costs. The decision underscores the importance of distinguishing between the record and the evidence, as well as the stringent requirements for demonstrating an error of law necessary to warrant relief in the form of certiorari or a declaration.

Orders