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Russell v Eaton

Russell v Eaton

Case [2020] VSCA 249 25 September 2020

Judicial Review

Natural Justice & Procedural Fairness

Abuse of Process

Standing

Administrative Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2019 0092

JOHN (JACK) RUSSELL	Applicant
v
SIMON EATON	First Respondent
and
COUNTY COURT OF VICTORIA	Second Respondent

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JUDGES:	KYROU JA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	Determined on the papers
DATE OF JUDGMENT:	25 September 2020
MEDIUM NEUTRAL CITATION:	[2020] VSCA 249
JUDGMENT APPEALED FROM:	[2019] VSC 464 (McDonald J)

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JUDICIAL REVIEW – De novo appeal to County Court against conviction for summary offences by Magistrates’ Court – County Court judge imposed aggregate fine without conviction – Application for judicial review of decision of County Court judge – Trial Division judge dismissed application – Applicant self represented – Whether Trial Division judge’s discretion miscarried in refusing to grant adjournment – Whether Trial Division judge erred in refusing to recuse himself – Whether Trial Division judge failed to accord the applicant natural justice by failing to procure legal assistance for him – Determination that application for leave to appeal is totally without merit – Application for leave to appeal dismissed – Supreme Court Act 1986 s 14D(3).

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REPRESENTATION:	Counsel	Solicitors
For the Applicant	Mr H Kirimof	Victorian Bar Duty Barristers’ Scheme
For the First Respondent	Mr D A Glynn	Ms A Hogan, Solicitor for Public Prosecutions
For the Second Respondent	No representation

KYROU JA:

Introduction and summary

The applicant, John Russell, regularly sent and received documents using the fax machine at the Yea Library for a fee. The Murrindindi Shire Council operates the library. By letter dated 5 April 2016, the Council informed the applicant that he was not permitted to attend the library from 9:00 am until 1:00 pm on Wednesdays — when school children attended for ‘story time’ — for a period of six months. The letter referred to allegations of the applicant upsetting children.

On Wednesday 13 April 2016 at around 9:00 am, the applicant attended the library to use the fax machine. A library staff member, Kerry Tull, told him that he was not allowed to be in the library and had to leave. The fax machine then began to receive documents, which the applicant took from the machine and claimed were his privileged legal documents. Ms Tull took the documents from the applicant’s hand and refused to return them. She then walked behind the counter to telephone police. As she did, the applicant grabbed her arm and attempted to take the papers from her.

Andrew Bond, manager of business services at the Council, overheard the conversation between the applicant and Ms Tull and witnessed the applicant grab her arm.

The applicant was charged with unlawful assault contrary to s 23 of the Summary Offences Act 1966 (‘charge 1’), entering a place in a manner likely to cause a breach of the peace contrary to s 9(1)(g) of that Act (‘charge 2’) and wilfully trespassing in a public place contrary to s 9(1)(d) of that Act (‘charge 3’). The first respondent, Simon Eaton, is the informant in relation to the charges.

On 14 November…

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 Russell v Eaton

Details

AGLC: John (Jack) Russell v Simon Eaton and County Court of Victoria [2020] VSCA 249
Case: [2020] VSCA 249
Decision Date: 25 September 2020

CaseChat Overview and Summary

In this judicial review matter, the applicant, Russell, appealed the decision of a County Court judge who imposed an aggregate fine without a conviction for summary offences found by the Magistrates’ Court. The applicant was dissatisfied with the outcome of the County Court proceedings and sought judicial review in the Trial Division. The Trial Division judge dismissed the application for judicial review. The applicant, representing himself, contended that the Trial Division judge had misapplied his discretion in denying an adjournment, had erred in refusing to recuse himself, and had failed to ensure natural justice by not procuring legal assistance for him.

The court considered the applicant's arguments and examined the principles of judicial review, focusing on the Trial Division judge's exercise of discretion in denying an adjournment, the grounds for recusal, and the duty to ensure natural justice. The court found that the Trial Division judge did not misapply his discretion in denying the adjournment, as the application was not made with sufficient particularity and urgency. The court also found that the Trial Division judge did not err in refusing to recuse himself, as there were no valid grounds for recusal. Lastly, the court found that the Trial Division judge did not fail to ensure natural justice by not procuring legal assistance, as the applicant had been given the opportunity to seek legal representation and had declined to do so.

The court dismissed the application for leave to appeal, determining that it was totally without merit. The court noted that the applicant, although self-represented, had not demonstrated any grounds for the appeal to succeed. The court's decision was based on the Supreme Court Act 1986, s 14D(3), which provides that an application for leave to appeal is to be dismissed if it is totally without merit. The applicant's application for leave to appeal was accordingly dismissed.

No further orders were made by the court.

Orders