Peter Sherman v Roads Corporation - [2011] HCASL 143

PETER SHERMAN
v
ROADS CORPORATION & ANOR
[2011] HCASL 143
M55/2011

The Roads Corporation ("the respondent") suspended the applicant's driver's licence under the Road Safety Act 1986 (Vic) ("the Act") after he had accumulated the prescribed number of demerit points. The applicant appealed the suspension of his driver's licence to the Victorian Magistrates' Court under s 26AA of the Act. The respondent did not appear at the appeal, and on 1 February 2010 the applicant was successful in having the suspension of his driver's licence lifted. However, on 15 March 2010, the respondent obtained an order for a rehearing of the appeal and was subsequently successful at that rehearing.
The applicant unsuccessfully sought judicial review in the Supreme Court of Victoria (Whelan J) to quash the decision of the Magistrates' Court on the rehearing. On 12 April 2011, Whelan J found there was the no jurisdictional error in the decision of the Magistrates' Court.
On 26 May 2011, the Court of Appeal of Victoria (Mandie JA and Almond AJA) summarily dismissed the applicant's appeal against the decision of Whelan J. Mandie JA found that the applicant's principal argument had no prospects of success because the Magistrates' Court had inherent jurisdiction or power to rehear an appeal pursuant to s 26AA which had been decided in the absence of the respondent.
An appeal to this Court would not have sufficient prospects of success to warrant a grant of special leave. There is no reason to doubt the correctness of the Court of Appeal's decision. Special leave is refused.
Pursuant to r 41.10.5 we direct the Registrar to draw up, sign and seal an order dismissing the application with costs.

W.M.C. Gummow
8 September 2011 S.M. Kiefel

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.

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Details

Case: [2011] HCASL 143
Decision Date

CaseChat Overview and Summary

The case of Peter Sherman v Roads Corporation involved the applicant, Peter Sherman, challenging the decision of the Victorian Magistrates' Court to reinstate the suspension of his driver's licence, which had been initially lifted but subsequently re-imposed. The respondent, the Roads Corporation, was responsible for the suspension under the Road Safety Act 1986 (Vic). Sherman had appealed the initial suspension to the Magistrates' Court, where he succeeded in having the suspension lifted due to the respondent's absence. However, the respondent later secured a rehearing of the appeal, resulting in the reinstatement of the suspension. Sherman's subsequent attempts to seek judicial review of the Magistrates' Court's decision were unsuccessful, leading to his application for special leave to appeal to the High Court.

The primary legal issue before the court was whether the Magistrates' Court had the inherent jurisdiction or power to rehear an appeal that had been decided in the absence of one of the parties, specifically the respondent. Additionally, the court had to determine if Sherman's appeal to the Court of Appeal had sufficient prospects of success to warrant a grant of special leave to the High Court. The Court of Appeal had already dismissed Sherman's appeal, finding that the Magistrates' Court did indeed possess the power to rehear the appeal under section 26AA of the Act.

The High Court, in refusing special leave, noted that there was no basis to doubt the correctness of the Court of Appeal's decision. The Court of Appeal had correctly determined that the Magistrates' Court had the inherent jurisdiction to rehear the appeal, and Sherman's appeal lacked sufficient prospects of success to warrant special leave. The High Court directed the Registrar to prepare an order dismissing Sherman's application with costs, reflecting the court's determination that the appeal did not meet the threshold for special leave.

Orders