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Lednar v Magistrates' Court

Lednar v Magistrates' Court

Case [2000] VSC 549 22 December 2000

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SUPREME COURT OF VICTORIA
COMMON LAW DIVISION	Not Restricted

No. 6292 of 2000

GARRY STEPHEN LEDNAR	First Plaintiff
and
MICHAEL MARTIN O'BRIEN	Second Plaintiff
and
McPHERSON ALEXANDER HILL	Third Plaintiff
v
THE MAGISTRATES' COURT	First Defendant
and
THE CHIEF COMMISSIONER OF POLICE (VICTORIA)	Second Defendant

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JUDGE:	Gillard J
WHERE HELD:	Melbourne
DATE OF HEARING:	17 and 18 October 2000
DATE OF JUDGMENT:	22 December 2000
CASE MAY BE CITED AS:	Lednar & Ors v The Magistrates' Court & Anor
MEDIUM NEUTRAL CITATION:	[2000] VSC 549	Revised 28 March 2001

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Judicial Review – time extended to bring application – special circumstances not confined to reasons for failing to issue within time.

Natural Justice – right to be heard – Magistrates' Court exercising power under s.464ZF of Crimes Act 1958 – ordering taking of DNA sample – no right to be heard – application not in open court – breach of s.125 of Magistrates' Court Act 1986 – voidable order.

Exercise of Jurisdiction – satisfaction of factual matters – obligation to give reasons – failure to do so – statutory effect of failure – orders quashed – mandatory orders
made – no discretionary bar.

APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mrs F. Hampel QC with Mr G. Connellan (pro bono)	Clayton Utz (pro bono)
For the 1^st Defendant	No appearance
For the 2^nd Defendant	Mr P. Holdenson QC with Mr R. Gipp	E. John Butler Victorian Government Solicitor

TABLE OF CONTENTS

PARTIES.......................................................................................................................................................................................... 1

BACKGROUND CIRCUMSTANCES........................................................................................................................................ 2

THE FACTS..................................................................................................................................................................................... 5

JUDICIAL REVIEW.................................................................................................................................................................... 13

EXTENSION OF TIME................................................................................................................................................................ 20

LEGISLATIVE SCHEME............................................................................................................................................................ 27

NATURAL JUSTICE................................................................................................................................................................... 34

SCOPE AND PURPOSE OF THE ACT................................................................................................................................... 49

INTERESTS OR RIGHTS AFFECTED.................................................................................................................................... 50

UNBIASED HEARING................................................................................................................................................................ 52

MINOR INFRINGEMENT OF RIGHTS................................................................................................................................... 52

DECISION MAKING PROCESS.............................................................................................................................................. 53

LEGISLATIVE FRAMEWORK AND INTENTION OF PARLIAMENT?.......................................................................... 55

OPEN COURT.............................................................................................................................................................................. 67

SATISFACTION OF TWO CONDITIONS PRECEDENT................................................................................................... 73

REASONS FOR DECISION...................................................................................................................................................... 75

SERVICE OF ORDER AND REASONS.................................................................................................................................. 77

ORDERS MADE IN ACCORDANCE WITH THE LAW?.................................................................................................... 77

DISCRETIONARY MATTERS.................................................................................................................................................. 81

CONCLUSION............................................................................................................................................................................. 81

HIS HONOUR:

The court has before it, a proceeding instituted by an originating motion seeking relief by way of judicial review pursuant to Order 56 of the Rules of Court.

Parties

The first plaintiff, Garry Stephen Lednar (also known as Ledner) ("Mr Lednar") is presently undergoing a term of imprisonment following conviction for armed robbery at the Melbourne County Court on 1 September 1999. He is due for release on 15 October 2001.

The second plaintiff, Michael Martin O'Brien ("Mr O'Brien") is presently undergoing a term of imprisonment following a conviction for armed robbery at the Melbourne County Court on 9 June 1998. He is due for release on 15 July 2002.

The third plaintiff, McPherson Alexander Hill ("Mr Hill") was sentenced to a term of imprisonment at the Geelong Magistrates' Court on 10 November 1999 for offences of breach of a combined custody and treatment order and theft of a motor vehicle. He was released from custody on 9 August 2000.

The first defendant, the Magistrates' Court, is joined in accordance 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 Lednar v Magistrates' Court

Details

AGLC: Lednar v Magistrates' Court [2000] VSC 549
Case: [2000] VSC 549
Decision Date: 22 December 2000

CaseChat Overview and Summary

The case of Lednar v Magistrates' Court involved the defendant, Lednar, and the Magistrates' Court of Victoria. The dispute centred on the legality of an order made by the Magistrates' Court under section 464ZF of the Crimes Act 1958, which required the taking of a DNA sample from Lednar. The court had to determine whether the order was validly made and whether Lednar had the right to be heard prior to its issuance. The matter was brought to the court for judicial review, and the primary issue was whether the application for judicial review was made within the requisite time, or if special circumstances existed to extend that time. Additionally, the court had to consider the requirements of natural justice and the statutory obligations of the Magistrates' Court in making the DNA sample order.

The court examined the principles of judicial review and the criteria for extending the time to bring an application, determining that special circumstances could include reasons for the delay in bringing the application, but not solely the reasons for failing to comply with the original time limit. It was held that the application was indeed made within the extended time period, given the special circumstances presented. Regarding natural justice, the court concluded that the order for the taking of a DNA sample did not require a prior hearing because it did not constitute a punitive measure, but rather a regulatory one. However, the court found that the order was voidable because it was made without giving Lednar an opportunity to be heard, breaching section 125 of the Magistrates' Court Act 1986. This breach rendered the order voidable, but not void, unless Lednar demonstrated that they suffered prejudice as a result of not being heard.

The court quashed the orders for the taking of DNA samples as the Magistrates' Court failed to provide reasons for its decision, which is a mandatory requirement under the statute. The court held that the failure to give reasons was not merely a procedural irregularity but had a statutory effect, leading to the quashing of the orders. The court did not deem it necessary to address other grounds of appeal as the quashing of the orders was sufficient to resolve the matter. The final orders of the court were to quash the orders for the taking of DNA samples and to direct the parties to bear their own costs of the proceeding.

Orders