Shabo v Department of Human Services
[2002] VSC 8
•29 January 2002
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
PRACTICE COURT
No. 4205 of 2002
| BRYDON SHABO (SENIOR) | Plaintiff |
| v | |
| DEPARTMENT OF HUMAN SERVICES & ORS | Defendants |
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JUDGE: | BEACH J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 29 January 2002 | |
DATE OF JUDGMENT: | 29 January 2002 | |
CASE MAY BE CITED AS: | Shabo v Department of Human Services | |
MEDIUM NEUTRAL CITATION: | [2002] VSC 8 | |
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Certiorari – Order of Childrens’ Court – No error of law on face of record – no denial of natural justice – Proceeding dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | In person | |
| For the Department of Human Services | D. Fanning | Court Advisory Unit – Department of Human Services |
| For Brydon (Shabo (Jn) | M. Ardley (Sol) | Legal Aid |
For Christopher Shabo | D. Doogue (Sol) | Legal Aid |
HIS HONOUR:
This is the return of an originating motion filed in the court on 23 January last by the plaintiff Brydon Shabo whereby the plaintiff seeks to quash the order of the Childrens' Court made on 22 January and certain ancillary orders.
As I indicated during the course of discussion, the basis upon which this court can interfere in proceedings before a court of inferior jurisdiction are quite limited. For present purposes it is only necessary to consider two of them, namely error of law on the face of the court record or denial of natural justice.
The order made by the Childrens' Court was an order striking out an application and vacating the hearing dates of a contested hearing. There simply is no error of law on the face of the record. Such orders were clearly within the jurisdiction of the Childrens' Court if the presiding magistrate considered it was appropriate to make them.
What I suspect is really being complained of by the plaintiff is that as a consequence of what occurred before the Childrens' Court on 22 January he was denied natural justice. Fortunately there is a complete transcript of the proceedings before the Childrens' Court that day which is now Exhibit PTP 2 to the affidavit sworn 24 January by the presiding magistrate. What occurred was quite brief. On page 4 the plaintiff is recorded as having said:
"I'm just going to concentrate on this Court of Appeals and make - and I'm going to request the Court of Appeals to make the decision on the last three years on all the - not only the Childrens' Court cases but also the Family Court cases where the Department have misled the court, they've clearly denied him access, they have lied to the courts and in some cases they have even got personalised - some of the barristers and so forth and personalised themselves and haven't asked me what I want for the kids, they've been communicating between each other. They are just like a pack of wolves, they gang up with each other. Even last year one case, last year when we - the last case we had here in this court room last year was the mother was - the mother's barrister was disagreeing with the Department and they were at a stage where they were almost at each other's throats and they adjourned it for one minute. They went outside, they came back in and they were all laughing and they all agreed on the same thing. Now, this is a joke, as far as I am concerned, it is a big joke."
Then he addressed the magistrate:
"Unless you - unless someone's going to listen to me I might as well just withdraw my application now, and my first question to you was going to be - was I want to ask you, Your Worship, whose side are you on today before we go any further, because if - I'd like to know if - - -
HIS WORSHIP: Just stop. I - - -
APPLICANT: I'd like to know whose side you are going to be on.
HIS WORSHIP: Just stop please, I am not going to put - - -
APPLICANT: Because I'd like to withdraw my application if I don't know whose side you're on.
HIS WORSHIP: Yes, very well, your application is struck out. Contest dates are vacated.
APPLICANT: I will see youse in Court of Appeal anyway, you child abusers".
It was clearly quite improper for the plaintiff to put the question he did to the magistrate. Not surprisingly the magistrate declined to answer the question. The plaintiff made it clear to the magistrate that unless the magistrate answered the question he would withdraw his application.
In my opinion, in that situation, the magistrate was quite justified in adopting the course he did in the matter.
I have read the whole of the transcript of what occurred before the Childrens' Court that day and I can find no basis for a contention that the plaintiff was denied natural justice. What he achieved that day he brought on his own head. If the plaintiff is minded to renew any application he wishes to the Childrens' Court, that will be a matter for him to determine. The originating motion will be dismissed.
(Discussion ensured re costs.)
Making an order for costs against you would be pointless and I do not propose to do so.
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