Lymberopoulos v Police

Case [2006] SASC 360

SUPREME COURT OF SOUTH AUSTRALIA

(Civil: Application for Judicial Review)

LYMBEROPOULOS v POLICE

[2006] SASC 360

Judgment of The Honourable Justice White

30 November 2006

ADMINISTRATIVE LAW - JUDICIAL REVIEW - GROUNDS OF REVIEW - PROCEDURAL FAIRNESS

Application for judicial review of decisions made by a magistrate on reviews of expiation enforcement orders - self-represented litigant - procedure under Expiation of Offences Act 1996 (SA) - whether there was a denial of procedural fairness - whether applicant entitled to be heard upon oath when issue of credibility involved - whether extension of time should be granted - orders of magistrate quashed - alternative claim for misfeasance in a public office dismissed.

Expiation of Offences Act 1996 (SA) s 5, s 6, s 7, s 8, s 9, s 11, s 13, s 14; Statutes Amendment (Expiation of Offences) Act 2003 (SA); Criminal Law (Sentencing) Act 1988 (SA) s 13; Supreme Court Rules 1987 (SA) r 98.06; Magistrates Court (Civil) Rules 1992 (SA) r 47; Victims of Crime Act 2001 (SA); Statutes Amendment (Attorney-General's Portfolio) Act 2002 (SA), referred to.
R v War Pensions Entitlement Appeal Tribunal, ex parte Bott (1933) 50 CLR 228; Craig v State of South Australia (1995) 184 CLR 163; Commissioner for Australian Capital Territory Revenue v Alphaone Pty Ltd (1994) 49 FCR 576; Stead v SGIC (1986) 161 CLR 141, applied.
Craig v Workers Compensation Tribunal (2004) 90 SASR 490, distinguished.
Lyberopoulos v Police [2000] SASC 412; Maxwell v Murphy (1957) 96 CLR 261; Kioa v West (1985) 159 CLR 550; Russell v Duke of Norfolk (1949) 1 All ER 109; Mobile Oil Australia Pty Ltd v Federal Commissioner of Taxation (1963) 113 CLR 475; McQuade v Marion City Council (1998) 100 A Crim R 203; Heatley v Tasmanian Racing and Gaming Commission (1977) 137 CLR 487; Chen & Others v Minister for Immigration and Ethnic Affairs (1994) 48 FCR 591; Jeffs v New Zealand Dairy Production & Marketing Board [1967] 1 AC 551; O'Neill v Mann (1994) 49 FCR 370; CanWest Global Communications Corporation v Australian Broadcasting Authority (1997) 71 FCR 485; Lovett v Le Gall (1975) 10 SASR 479; Hall v City of Burnside [2006] SASC 283; Re Minister for Immigration and Multicultural Affairs; ex parte Lam (2003) 214 CLR 1; Waco v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 131 FCR 511; R v Commonwealth Court of Conciliation and Arbitration; ex parte Ozone Theatres (Aust) Ltd (1949) 78 CLR 389; Re Refugee Tribunal; ex parte Aala (2000) 204 CLR 82; Cornwall v Rowan (2004) 90 SASR 269; CanWest Global Communications Corporation v Australian Broadcasting Authority (1997) 71 FCR 485, considered.

LYMBEROPOULOS v POLICE
[2006] SASC 360

Civil:  Application for Judicial Review

  1. WHITE J:             This is an application for judicial review of decisions made by a magistrate on reviews of expiation enforcement orders made by the Registrar of the Magistrates…

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AGLC
Lymberopoulos v Police [2006] SASC 360
Case
[2006] SASC 360
Decision Date

CaseChat Overview and Summary

Lymberopoulos sought judicial review of decisions made by a magistrate concerning reviews of expiation enforcement orders. The applicant, appearing self-represented, challenged the procedures under the Expiation of Offences Act 1996 (SA). The central issues were whether procedural fairness was denied and if the applicant was entitled to be heard upon oath when the issue of credibility was involved. Additionally, the court considered whether an extension of time should be granted for the judicial review application.

The court found that the applicant had not been denied procedural fairness. It held that the applicant was not entitled to be heard upon oath when credibility was not at issue. The court also declined to grant an extension of time for the judicial review application. Consequently, the orders of the magistrate were quashed. The alternative claim for misfeasance in a public office was dismissed as the actions of the Fines Payment Unit were neither invalid nor unlawful, and no harm or loss to the requisite kind was caused to the plaintiff.

The court concluded that the applicant succeeded on the application for judicial review. It quashed the orders of the magistrate made on 24 June 2004 and directed the Magistrates Court, constituted by a different magistrate, to hear and determine 17 of the 19 applications for review lodged by the applicant on 10 May 2004. The court would not make orders requiring the Magistrates Court to hear afresh the two applications relating to expiation notices J1857206 and J1857237 due to lack of jurisdiction. The court would hear the parties as to costs.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The tort of misfeasance in a public office comprises an invalid or unauthorised act done maliciously by a public officer in the purported discharge of his or her public duties which causes loss or harm to the plaintiff.[30] The actions of the Fines Payment Unit were neither invalid nor unlawful, there is no evidence that they were done maliciously, and, as already noted, there has been no harm or loss of the requisite kind caused to the plaintiff. Accordingly, this claim of the plaintiff is dismissed.[30] Cornwall v Rowan [2004] SASC 384 at [209]-[216]; (2004) 90 SASR 269 at 323-5.Conclusion and Orders For the reasons given above, I am satisfied that the plaintiff succeeds on the application for judicial review. I will make the orders quashing each of the orders of the magistrate made on 24 June 2004 and directing that the Magistrates Court (constituted by a different magistrate) hear and determine 17 of the 19 applications for review lodged by the plaintiff on 10 May 2004. I will not make orders requiring the Magistrates Court to hear afresh the two applications relating to expiation notices J1857206 and J1857237 as the Magistrates Court does not have jurisdiction to hear and determine those applications. If they were remitted, the Magistrates Court would have to dismiss them on the ground that it lacked the jurisdiction to hear and determine them. I will hear the parties as to costs.

Ratio Decidendi

Legal Principle Established

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