Schmidt v Newsom - [2016] VSC 249

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S CI 2014 06807

JOHN SYDNEY SCHMIDT	Plaintiff
v
JOHN NEWSOM	First Defendant
and
THE COUNTY COURT OF VICTORIA	Second Defendant

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JUDGE:	KEOGH J
WHERE HELD:	Melbourne
DATE OF HEARING:	21 April 2016
DATE OF JUDGMENT:	19 May 2016
CASE MAY BE CITED AS:	Schmidt v Newsom & Anor
MEDIUM NEUTRAL CITATION:	[2016] VSC 249

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JUDICIAL REVIEW – Application for review of County Court decision – Plaintiff convicted of failing to produce an animal pursuant to s 76(1)(b)(ii) of the Domestic Animals Act 1994 (Vic) – Whether charge valid – Criminal Procedure Act 2009 ss 5, 6(1), 6(3), Schedule 1 – Whether s 76(1)(b)(ii) of the Domestic Animals Act 1994 ambulatory in its effect – Woolworths (Victoria) Pty Ltd v Marsh (Unreported, Ormiston J, 12 June 1986) and Director of Public Prosecutions v Kypri (2011) 33 VR 157 cited – Application refused.

PRACTICE AND PROCEDURE – Pleadings – Application to amend grounds in Originating Motion – Application made during oral submissions at trial – Plaintiff had had time and opportunity to consider and amend the ground – Proposed additional ground weak – Proposed additional ground would create considerable complexity in proceeding – Application refused.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr P Billings with Mr A Murdoch (solicitor)	Patten Robins Lawyers
For the First Defendant	Mr P Connor	Maddocks Lawyers
No appearance for the Second Defendant

HIS HONOUR:

Introduction

On 8 April 2011 the plaintiff was charged by the first defendant, who was acting in his capacity as informant, with six offences under the Domestic Animals Act 1994 (Vic) (‘the Act’). In a defended proceeding in the Magistrates’ Court on 14 March 2013 the plaintiff was found guilty on Charges 2 and 6. The plaintiff appealed those convictions to the County Court. On 23 October 2014, at a hearing before that court, Charge 2 was dismissed and a conviction recorded in respect of Charge 6, which alleged a failure by the plaintiff to produce an animal upon the request of an authorized Council officer pursuant to s 76(1)(b)(ii) of the Act.

The plaintiff now brings an application for review of the County Court judgment, pursuant to Order 56 of the Supreme Court (General Civil Procedure) Rules 2005 (‘the Rules’). By Amended Originating Motion dated 17 June 2015, the plaintiff seeks orders quashing the conviction on Charge 6 and dismissing the charge.

The two issues raised by the plaintiff’s grounds in the Amended Originating Motion dated 17 June 2015 are:

(a) Whether Charge 6 was defective because it omitted one or more of the essential ingredients of the offence (Grounds (a) and (b) in the Amended Originating Motion); and

(b) Whether there were, in addition to the s 76(1)(b)(ii) elements of the offence, other facts which were required to be established to sustain the offence, but in respect of which proof and/or findings were absent (Ground (c) in the Amended…

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 Schmidt v Newsom

Details

AGLC: Schmidt v Newsom [2016] VSC 249
Case: [2016] VSC 249
Decision Date: 19 May 2016

CaseChat Overview and Summary

The plaintiff, Schmidt, brought an application for judicial review against the County Court’s decision to convict him of an offence under section 76(1)(b)(ii) of the Domestic Animals Act 1994 (Vic). Schmidt was found guilty of failing to produce an animal, and he challenged the validity of the charge on the basis that the relevant section of the Act was not properly authorised under the Criminal Procedure Act 2009. The plaintiff also sought to amend the grounds of the originating motion during the trial’s oral submissions.

The court had to decide whether section 76(1)(b)(ii) of the Domestic Animals Act 1994 was validly enacted and if it was sufficiently precise to support a criminal charge. The court examined the relevant sections of the Criminal Procedure Act 2009 and relevant case law to determine if the charge was authorised and if the provision was too vague to be enforceable. Additionally, the court assessed the plaintiff's application to amend the grounds of the originating motion during the trial, considering whether the amendment would introduce unnecessary complexity or if it was simply a matter of the plaintiff having had ample opportunity to consider and amend the grounds beforehand.

The court found that section 76(1)(b)(ii) of the Domestic Animals Act 1994 was validly enacted and not overly vague, referencing precedent set in Woolworths (Victoria) Pty Ltd v Marsh and Director of Public Prosecutions v Kypri. The court dismissed the plaintiff’s argument that the provision was too imprecise to support a criminal charge. As for the application to amend the grounds of the originating motion, the court ruled that the proposed amendment was weak and would unnecessarily complicate the proceedings. The court noted that the plaintiff had ample opportunity to consider and amend the grounds before the trial began.

The court refused the plaintiff’s application for judicial review and also denied the application to amend the grounds of the originating motion.

Orders