Saric v Elliott - [2013] VSC 509

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 3475 of 2012

MEL (MIOMIR) MARK SARIC	Plaintiff
v
TIM ELLIOTT	First Defendant
and
COUNTY COURT OF VICTORIA	Second Defendant

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JUDGE:	T FORREST J
WHERE HELD:	Melbourne
DATE OF HEARING:	31 January 2013
DATE OF JUDGMENT:	20 September 2013
CASE MAY BE CITED AS:	Saric v Elliott & Anor
MEDIUM NEUTRAL CITATION:	[2013] VSC 509	Amended 23 September 2013

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COUNTY COURT – Appeal from Magistrates’ Court – Magistrates’ Court orders based on amended charges – Scope of County Court appeal – Whether County Court heard and determined amended charges on appeal

ADMINISTRATIVE LAW – Jurisdictional error – Whether hearing and determination of amended charges without amendment by County Court constituted jurisdictional error - Discretion to grant prerogative relief – Certiorari and mandamus.

ADMINISTRATIVE LAW – Procedural fairness – Whether refusal to adjourn appeal denied plaintiff procedural fairness.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr PJ Billings	Pearce Webster Dugdales
For the First Defendant	Mr CJ Ryan SC	Director of Public Prosecutions

HIS HONOUR:

Background

The plaintiff was charged with three motor traffic offences said to have occurred on 13 August 2009. I shall recite the relevant words of the original charge and summary:

(a)The defendant at Moonee Ponds on 13/08/2009 after having been required to furnish a sample of breath pursuant to s 55 of the Road Safety Act 1986, did refuse to comply with such requirement prior to 3 hours elapsing from the driving of a motor vehicle.

This charge was said to be brought under s 49(1)(e) of the Road Safety Act 1986 (Vic) (‘the Road Safety Act’). I shall refer to this as the refusal charge.
(b)The defendant at Moonee Ponds on 13/08/2009 did drive a motor vehicle on a highway namely Mt Alexander Road where the authorisation granted to him to do so was suspended.

This charge was brought under s 30(1) of the Act.
(c)The defendant at Moonee Ponds on 13/08/2009 being the driver of a vehicle on a road, named Mt Alexander Road and, at traffic lights showing a red light at an intersection with Kellaway Avenue, did enter the intersection against the red traffic light.

This charge was brought under Rule 59(1) of the Road Safety Road Rules 2009 (Vic) (‘the Road Rules’).

The plaintiff has filed an affidavit[1] in which he gives the following account of his journey through the criminal justice system:
[1]Exhibit 1.3.

The Magistrates’ Court

· He engaged a solicitor, Mr Kuzilny, who was ’initially impressive’.[2]
[2]Ibid, paragraph 9.

· He instructed Mr Kuzilny that he wished to plead not guilty to the charges and that he wanted to get off. Mr Kuzilny told him he would fight for him and get him off.[3]
[3]Ibid, paragraph 9.

· He met Mr Kuzilny at the Broadmeadows Magistrates’ Court at about 10.00am on 17 December 2009. He paid Mr Kuzilny’s fees. Mr Kuzilny went off to speak to the police.

· He reiterated to…

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 Saric v Elliott

Details

AGLC: Saric v Elliott [2013] VSC 509
Case: [2013] VSC 509
Decision Date: 20 September 2013

CaseChat Overview and Summary

The matter before the court was an appeal by the plaintiff, Saric, against the decision of the Magistrates’ Court, which had been affirmed by the County Court. The dispute arose from a traffic offence where the original charges were amended, and the plaintiff sought to challenge the legality of the process and outcome in the County Court. The primary legal issue before the court was whether the County Court had jurisdiction to hear and determine the amended charges on appeal, and if the refusal to adjourn the appeal denied the plaintiff procedural fairness. The court needed to determine if the hearing and determination of the amended charges without an amendment by the County Court constituted a jurisdictional error and if the refusal to adjourn the appeal violated the principle of procedural fairness.

The court examined the scope of its appellate jurisdiction and found that the County Court did indeed hear and determine the amended charges on appeal. The court held that this constituted a jurisdictional error because the amended charges were not formally before the court. The court further held that the refusal to adjourn the appeal denied the plaintiff procedural fairness, as it did not provide an opportunity to address the amended charges. The court found that the County Court had discretion to grant prerogative relief, and in this instance, certiorari and mandamus were appropriate to correct the jurisdictional error and ensure procedural fairness.

The court granted the appeal and ordered the County Court to quash the decision of the Magistrates’ Court and remit the matter for further consideration. The court emphasized the importance of procedural fairness and jurisdictional integrity in administrative law, particularly in the context of appeals. The final orders included the quashing of the Magistrates’ Court decision and the remanding of the matter for a fresh hearing, ensuring that the plaintiff had an opportunity to challenge the amended charges in a manner consistent with procedural fairness.

Orders