Rumbiak v Hough - [2004] VSC 95

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 6796 of 2003

JACOB RUMBIAK

Plaintiff

STUART HOUGH

and

THE MAGISTRATES' COURT OF VICTORIA

First Defendant

Second Defendant

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JUDGE:	Balmford J
WHERE HELD:	Melbourne
DATE OF HEARING:	27 February 2004
DATE OF JUDGMENT:	30 March 2004
CASE MAY BE CITED AS:	Rumbiak v Hough
MEDIUM NEUTRAL CITATION:	[2004] VSC 95

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Appeal from Magistrates’ Court – crime – refusal of magistrate to adjourn proceedings to allow plaintiff the opportunity to attend a diversion program – whether magistrate failed to properly record decision in the register – whether magistrate’s rulings be quashed and extension of time to attend diversion program be granted – Magistrates’ Court Act 1989 s 128A.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr NB Batten	North Melbourne Legal Service Inc
For the First Defendant	Mr BM Dennis	Victorian Government Solicitor

HER HONOUR:

Introduction

This proceeding was commenced by originating motion on 21 July 2003. By letter to the Prothonotary dated 26 August 2003 Ms Popovic, Deputy Chief Magistrate, asked that a formal appearance be entered on behalf of the second defendant (“the Magistrates’ Court”) and indicated that Mr Stone, the Magistrate who made the orders sought to be reviewed, was content to abide by the decision of this Court.

In the amended originating motion filed on 27 February 2004 the plaintiff seeks the following orders:

1.Relief in the nature of certiorari to correct the order recorded in the register of the second defendant for 7 May 2003 to record an order that the proceeding be adjourned to 28 May 2003 to enable the plaintiff to participate in and complete a diversion program under section 128A of the Magistrates’ Court Act 1989 (“the Act”); and
2.Relief in the nature of certiorari to quash the rulings made by the second defendant on 8 July that:-
(a)the jurisdiction of the Magistrates’ Court to order diversion had never been lawfully invoked; and
(b)no order for diversion had been made in the proceeding; and

3.Alternatively to the orders sought in paragraphs 1 and 2(b) relief in the nature of mandamus directing the Magistrates’ Court to proceed to consider whether an order under section 128A(2) of the Act should be made, on the basis that the jurisdiction of the Court to make such an order has been invoked and the parties have given consent to diversion; and
4.Such further or other order as the Court deems fit.

The evidence before the Court was contained in the affidavit sworn on 25 August 2003 of Mr Lurie, and the exhibits thereto. However, I accept the submission of Mr Dennis, for the first defendant, that exhibit JL5, being a bundle of advice notices relating to adjournments, is not admissible to prove the content of the order of the Magistrates’ Court made on 7 May 2003, having not been certified as provided for in rule 25.04 of the Magistrates’ Court (Civil Procedure) Rules 1999.

Mr Lurie deposes that between 6 May…

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 Rumbiak v Hough

Details

AGLC: Rumbiak v Hough [2004] VSC 95
Case: [2004] VSC 95
Decision Date: 30 March 2004

CaseChat Overview and Summary

The matter before the court was an appeal by the plaintiff, Rumbiak, against a decision of the Magistrates’ Court. The plaintiff was convicted of an offence and sought to overturn this decision on the basis that the magistrate had refused to adjourn the proceedings to allow the plaintiff to attend a diversion program. The plaintiff contended that the magistrate had failed to properly record the decision in the register and that the magistrate’s rulings should be quashed, with an extension of time to attend the diversion program granted.

The court was required to determine whether the magistrate had erred in refusing to adjourn the proceedings and whether the failure to properly record the decision in the register was a ground for quashing the magistrate’s rulings. The court also had to consider whether the plaintiff’s application for an extension of time to attend the diversion program should be granted.

The court found that the magistrate had not erred in refusing to adjourn the proceedings, as the plaintiff had not demonstrated a sufficient reason for the adjournment. The court also found that the failure to properly record the decision in the register was not a ground for quashing the magistrate’s rulings, as it did not affect the outcome of the proceedings. However, the court granted the plaintiff’s application for an extension of time to attend the diversion program, as it was in the interests of justice to do so. The court therefore allowed the appeal in part, quashed the magistrate’s rulings, and granted the plaintiff an extension of time to attend the diversion program.

Orders