Marijancevic v Roads Corporation

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST

S CI 2014 01939

JOSEPH MARIJANCEVIC	Plaintiff
v
ROADS CORPORATION OF VICTORIA	Defendant

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JUDGE:	DIXON J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	15 JULY 2014
DATE OF JUDGMENT:	23 JULY 2014
CASE MAY BE CITED AS:	MARIJANCEVIC v ROADS CORPORATION
MEDIUM NEUTRAL CITATION:	[2014] VSC 339

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PRACTICE AND PROCEDURE – Appeal from Associate Judge – Challenged order an interlocutory injunction – Injunction beyond limits of an associate judge’s jurisdiction – Appeal allowed – Whether injunction should be granted – Plaintiff seeking to restrain the defendant from enforcing a licence suspension following accumulation of demerit points – Injunction refused - Supreme Court Act 1986 s 37, Road Safety Act 1986 ss 1, 17, 25(1), 25(3), 25(3D), Supreme Court (General Civil Procedure) Rules 2005 r 77.01, 77.02, 77.06.9, Road Safety (Drivers) Regulations 2009 reg 39.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	In person
For the Defendant	Mr M Peckham, Maddocks

HIS HONOUR:

1. On 12 June 2014, an associate judge made orders that included the following:

Until the hearing and determination of this proceeding, or further order, the defendant shall stay the suspension of the plaintiff’s driver’s licence No 32036635, such suspension operating pursuant to the demerit point option notice, issued pursuant to s 25(3) and s 25(3D) of the Road Safety Act 1986 on 27 February 2014 and taking effect on 10 April 2014, but subject to two conditions, as follows:

(a)first, a condition precedent that the driver undertake and pass a practical driving test and road law knowledge test at a VicRoads customer service centre;

(b)secondly, a condition subsequent, that the plaintiff prosecute this proceeding expeditiously and in accordance with the orders made this day.

1. The plaintiff appeals against this order. His notice of appeal raises two grounds:

(a)The primary judge erred when on his own motion he imposed a condition precedent before ordering a stay on the plaintiff’s suspension of licence in circumstances where the order sought is necessary for the preservation of the appeal.

(b)The primary judge erred in making an order that required the plaintiff to undertake and pass a practical driving test and a road law knowledge test (which I will collectively refer to as ‘licence testing’) at a VicRoads customer service centre when such order demonstrates a reasonable apprehension of bias.

The plaintiff now seeks an unconditional stay of the suspension of his licence.

1. The plaintiff, who is self-represented, contended that two questions of law arose. First, the primary judge did not have power to impose a condition precedent to compel the plaintiff to undertake and pass licence testing in circumstances where the applicant had made it clear that he intended in a subsequent proceeding to challenge a requirement made by the defendant that he submit to licence testing. There is, however, a more fundamental question about the jurisdiction exercised by the primary judge than that raised by the plaintiff that I will come…