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Salt v Godenzi

Salt v Godenzi

Case [2010] VSC 259 18 June 2010

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Judicial Review

Statutory Interpretation

Administrative Law

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 8884 of 2009

LESLIE SALT	Plaintiff
v
LISA MARIE GODENZI COUNTY COURT OF VICTORIA	Defendants

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JUDGE:	BEACH J
WHERE HELD:	Melbourne
DATE OF HEARING:	15 June 2010
DATE OF JUDGMENT:	18 June 2010
JUDGMENT IN RESPECT OF WHICH JUDICIAL REVIEW IS SOUGHT	Salt v Godenzi (unreported County Court of Victoria, Judge Pullen, 15 July 2009)
CASE MAY BE CITED AS:	Salt v Godenzi & Anor
MEDIUM NEUTRAL CITATION:	[2010] VSC 259

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JUDICIAL REVIEW – County Court – Appeal from Magistrates’ Court – Summons did not direct defendant to appear at the proper venue – Whether summons complied with s 33 of the Magistrates’ Court Act 1989 – Effect of non-compliance - Magistrates’ Court Act 1989, ss 33 and 50.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr S.P. Hardy	Stephen Peter Byrne
For the First Defendant	Mr S.M. Cooper	Office of Public Prosecutions
For the Second Defendant	No appearance

HIS HONOUR:

Introduction

On 27 March 2008, the plaintiff, Mr Leslie Robert Salt, was charged with offences under s 49 of the Road Safety Act 1986. The charges related to driving a motor vehicle on 28 November 2007 whilst over .05. The summons to answer these charges directed the plaintiff to attend the Magistrates’ Court at 10.00am on 2 July 2008.

Section 33(1) of the Magistrates’ Court Act 1989 provided:[1]

“A summons to answer to a charge must direct the defendant to attend at the proper venue on a certain date and at a certain time to answer the charge.”

[1]Before its repeal by s 427(1)(c) of the Criminal Procedure Act 2009. See now s 15(1) of the Criminal Procedure Act 2009.

In this case, the proper venue was the Magistrates’ Court at Frankston. However, when completing the summons, the informant (who is the first defendant) failed to insert the location and address of the proper venue. The summons merely provided that the plaintiff was required to attend at “the Magistrates’ Court of Victoria at [blank]”.

The charges were heard at the Frankston Magistrates’ Court on 11 March 2009. The plaintiff contended that because of the failure to comply with s 33(1), the summons was invalid and the charges should be dismissed. The Magistrate (Kiel M) rejected this submission. The plaintiff was convicted, fined $500 and had his driver’s licence cancelled for 10 months.

The plaintiff appealed to the County Court. On 15 July 2009, the plaintiff’s appeal came on for hearing before Judge Pullen. The argument that was put to the Magistrate was again put to her Honour. Her Honour rejected the argument. In the result, her Honour found the charges proved and reimposed the penalty imposed by the Magistrate.

In this proceeding, the plaintiff seeks to have the conviction and sentence imposed by her Honour on 15 July 2009 quashed. Declarations are also sought that the summons does not comply with s 33(1) and that there has been no lawful service of 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 Salt v Godenzi

Details

AGLC: Salt v Godenzi [2010] VSC 259
Case: [2010] VSC 259
Decision Date: 18 June 2010

CaseChat Overview and Summary

In the matter of Salt v Godenzi, the appellant, Salt, sought judicial review of a decision made by the Magistrates’ Court. The dispute arose from a summons issued against the respondent, Godenzi, which Salt claimed did not direct Godenzi to appear at the correct venue. The County Court was asked to determine whether the summons complied with section 33 of the Magistrates’ Court Act 1989, and if non-compliance had any effect on the validity of the summons. The appeal was from an earlier decision of the Magistrates’ Court.

The central legal issue before the court was whether the summons issued to Godenzi complied with the statutory requirements set out in section 33 of the Magistrates’ Court Act 1989. Section 33 of the Act mandates that a summons must direct the defendant to appear at a specified court. The court also had to consider the implications of any non-compliance with this requirement, as potentially addressed by section 50 of the same Act. The validity of the summons and the subsequent decision of the Magistrates’ Court hinged on these statutory provisions.

The court examined the wording of the summons and determined that it did not explicitly state the required venue for Godenzi's appearance. Despite this, the court found that the summons was still effective because Godenzi had not been misled or disadvantaged by the omission. The court concluded that the non-compliance with section 33 did not invalidate the summons, as the respondent had appeared and the matter had proceeded without any prejudice. The court upheld the decision of the Magistrates’ Court.

No further orders were made by the County Court. The appeal was dismissed, and the decision of the Magistrates’ Court remained in place.

Orders