Russell v Eaton - [2019] VSC 464

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S CI 2017 03875

JOHN (JACK) RUSSELL	Plaintiff
v
SIMON EATON	First Defendant
COUNTY COURT	Second Defendant

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JUDGE:	McDonald J
WHERE HELD:	Melbourne
DATE OF HEARING:	27 May 2019
DATE OF JUDGMENT:	26 July 2019
CASE MAY BE CITED AS:	Russell v Eaton & Anor
MEDIUM NEUTRAL CITATION:	[2019] VSC 464

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ADMINISTRATIVE LAW – Application for judicial review of judgment of the County Court of Victoria imposing fines for contravention of ss 9(1)(d) and 23 of the Summary Offences Act 1966 – Application dismissed.

PRACTICE AND PROCEDURE – Application for adjournment of trial – Application for recusal of trial judge on ground of apprehended bias – Applications refused – Crimes Act 1958 ss 71, 322G, 623 – Criminal Procedure Act 2009 s 254 – Summary Offences Act 1966 ss 9, 23 – Supreme Court (General Civil Procedure) Rules 2015 Order 56.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	No appearance
For the First Defendant	Dr J Harkess	Director of Public Prosecutions
For the Second Defendant	No appearance

HIS HONOUR:

The current proceeding stems from a disagreement in the Yea Library (‘library’) on 13 April 2016. The regular practice of the plaintiff, Mr John (Jack) Russell, was to send and receive documents using the fax service provided by the library for a fee. On 5 April 2016, the Chief Executive Officer of the Murrindindi Shire Council (‘Council’) wrote a letter to Mr Russell to the effect that he was not permitted to attend the library between 9.00am and 1.00pm on Wednesdays, when school children attended for ‘Story Time’, for a period of six months (‘ban’). The letter referred to allegations of him upsetting children, and stated that he was not to contact library staff in respect of the ban.

Mr Russell attended the library at about 9.00am on Wednesday 13 April 2016. Ms Kerry Tull, a Council employee who worked at the library, asked Mr Russell to leave and told him that he was not allowed to be there because of the ban. The fax machine began to receive papers, which Mr Russell believed were his privileged legal documents, and Mr Russell took some of the papers from the machine. Ms Tull took the pages from Mr Russell’s hand, refused to return them and walked behind the counter to telephone the police. As she did so, Mr Russell grabbed her arm and attempted to snatch the papers. Mr Andrew Bond, manager of business services at the Council, was present at the library. He overheard the conversation between Ms Tull and Mr Russell, and witnessed Mr Russell grab Ms Tull’s arm.

In respect of this incident, Mr Russell was charged with unlawful assault contrary to s 23 of the Summary Offences Act 1966 (‘charge 1’), entering a place likely to cause a breach of the peace contrary to s 9(1)(g) of the Summary Offences Act (‘charge 2’), and wilfully trespassing in a…

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: Russell v Eaton [2019] VSC 464
Case: [2019] VSC 464
Decision Date: 26 July 2019

CaseChat Overview and Summary

The applicant sought judicial review of a judgment of the County Court of Victoria, which had imposed fines for breaches of sections 9(1)(d) and 23 of the Summary Offences Act 1966. The applicant, who was the respondent in the original County Court proceedings, also applied for an adjournment of the trial and for the trial judge to recuse himself on the ground of apprehended bias. The application was dismissed. The court considered the appropriate legal tests for judicial review, the principles governing applications for recusal, and the circumstances in which a trial may be adjourned. The court found that the County Court had not erred in its interpretation or application of the law, that the applicant had not established a real danger of bias, and that the application for an adjournment was not justified. The applicant's application for judicial review was dismissed, and the applications for an adjournment and recusal were also refused. The orders made by the County Court were upheld.

Orders