Secretary to the Department of Justice and Community Safety v Newton (a pseudonym)
[2020] VCC 1089
•24 July 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| Secretary to the Department of Justice and Community Safety | Applicant |
| v | |
| Ray Newton (a pseudonym) | Respondent |
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JUDGE: | Judge Pillay | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | Written Submissions filed on 16 July 2020 | |
DATE OF RULING: | 24 July 2020 | |
CASE MAY BE CITED AS: | Secretary to the Department of Justice and Community Safety v Newton (a pseudonym) | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 1089 | |
REASONS FOR RULING
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Subject: Application for Discontinuance and Dismissal of an Application for
Supervision Order
Catchwords: Discontinuance and Dismissal of an Application for a Supervision Order – Whether Court has power to Discontinue and Dismiss an Application in circumstances of death of the respondent – Whether leave ought be granted for Discontinuance of an Application for a Supervision Order
Legislation Cited: Serious Offenders Act 2018 (Vic)
Ruling: Application granted
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | A. Imrie | Victorian Government Solicitor’s Office |
| For the Respondent | D. Gibson | Victoria Legal Aid |
HIS HONOUR:
1 On 18 March 2020, the Secretary to the Department of Justice and Community Safety (the Secretary) filed an Application for a Supervision Order in respect to the respondent, Mr Newton, under section 13 of the Serious Offenders Act 2018 (the Act). On the same day, the Secretary also filed an Application for an Interim Supervision Order in respect to Mr Ray Newton[1], under section 46 of the Act. On 1 May 2020, the Court heard the Application for the Interim Supervision Order. At that time I granted the order which was to be enforced from 23 May 2020 for a period of 4 months.
[1]A Pseudonym
2 On 10 June 2020, the Court received correspondence from the Victorian Government Solicitors Office (VGSO), advising of the death of Mr Newton, which had occurred on 6 June 2020. VGSO filed proposed, and uncontested, orders with the Court on 23 June 2020 seeking discontinuance and dismissal of the abovementioned application for a Supervision Order, filed on 18 March 2020.
3 A question then arose as to whether the Court had the power to make orders in respect of an application then basis for which was an extant Interim Supervision Order, which by force of the Act expired on the death to the respondent pursuant to s. 56(e) of the Act.
4 It ought be noted that Mr Gibson, for the Respondent, did not file submissions on this point as he was unable to obtain instructions.
5 Mr Imrie, for the Secretary, noted that the Court does not appear to have an explicit power to dismiss or discontinue a Supervision Order application in these specific circumstances. He referred to both the Act and the Criminal Procedure Act 2009 (Vic). He could direct me to no specific powers in the Criminal Procedure Regulations 2019 either at R.11. He did however note there are implied powers which the Court may exercise in its inherent discretion.2
2R v Grassby (1989) 87 ALR 618, at page 624
6 As an alternative, Mr Imrie submitted that pursuant to r 1.14 of the Criminal Procedure Rules, the Court is able to look to provisions of the Civil Procedure Rules which may apply.[2] Rule 25.03 of the Civil Procedure Rules was suggested, which allows for the discontinuance of a proceeding not commenced by writ. This discontinuance would come into effect either by leave of the Court or by consent of all other parties. A final alternative, of r 59.06 was submitted. However, due to the restrictions imposed in r 59.06(7)(a), I find this alternative to be inapplicable.
[2]County Court Criminal Procedure Rules 2019 (Vic)
7 I find in accordance with Mr Imrie’s submission as to the inherent discretion of the Court to ensure the extant application is brought to a final conclusion I will make the orders sought. To this end I note the jurisdiction invoked is that by implication of the Court to bring such applications to an administrative end. I will grant leave for discontinuance of the Application for a Supervision Order and make the proposed Orders, filed by the Applicant on 23 June 2018.
8 The Application for a Supervision Order dated 18 March 2020 is to be dismissed.
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