Sherman v Roads Corporation - [2011] VSCA 149

SUPREME COURT OF VICTORIA
COURT OF APPEAL

S APCI 2011 0056

PETER SHERMAN
	Appellant
v
ROADS CORPORATION - and – MAGISTRATES’ COURT OF VICTORIA	1^st Respondent
	2^nd Respondent

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JUDGES:	MANDIE JA and ALMOND AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	13 May 2011
DATE OF JUDGMENT:	26 May 2011
MEDIUM NEUTRAL CITATION:	[2011] VSCA 149
JUDGMENT APPEALED FROM:	Sherman v Roads Corporation & anor [2011] VSC 142 (Whelan J)

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PRACTICE AND PROCEDURE – Application by appellant for stay on suspension of driver licence pending determination of appeal – Application by first respondent for summary dismissal of appeal on basis that appeal has no prospect of success – Magistrates’ Court had reheard and dismissed appellant’s appeal under s 26AA of the Road Safety Act 1986 (Vic) against his driver licence suspension – Appellant’s application to Supreme Court for judicial review dismissed – Appellant appealed to Court of Appeal – Whether first respondent a proper party to an appeal under s 26AA of the Road Safety Act – Whether Magistrates’ Court had power to rehear an appeal under s 26AA of the Road Safety Act either pursuant to s 110 of the Magistrates’ Court Act 1989 (Vic) or by virtue of inherent power to set aside orders made in the absence of a party – Appeal dismissed.

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APPEARANCES:	Counsel	Solicitors
The Appellant in person
For the First Respondent	Mr C G K Madder	DLA Piper
No appearance for the Second Respondent

MANDIE JA:

Introduction

The appellant’s driver licence was suspended by the first respondent, the Roads Corporation (‘the Corporation’), pursuant to the Corporation’s statutory obligations and powers under the Road Safety Act 1986 (Vic) on the basis of the number of demerit points that the appellant had accumulated within a three year period. The appellant appealed against the suspension pursuant to s 26AA of the Road Safety Act. The Corporation did not appear on the appeal and the appellant succeeded on the appeal in the Corporation’s absence with the result that the suspension was no longer in force. However, the Corporation sought and obtained a rehearing of the appeal and this time it was dismissed by the magistrate, the result being that the suspension became effective again.

The appellant brought proceedings by way of judicial review under O 56 of the Supreme Court Rules seeking inter alia to quash the dismissal of his appeal in the Magistrates’ Court. A judge in the Trial Division dismissed the appellant’s proceeding. The key issue considered by the judge was whether the Magistrates’ Court had power in the circumstances to rehear the appellant’s appeal under s 26AA of the Road Safety Act and the judge decided that the Magistrates’ Court did have such power.

The appellant has appealed to the Court of Appeal from the judgment in the Trial Division. The appellant applies before us for a stay of a number of orders pending the hearing of this appeal but the principal order which he now seeks is an order…

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 Sherman v Roads Corporation

Details

AGLC: Sherman v Roads Corporation [2011] VSCA 149
Case: [2011] VSCA 149
Decision Date: 26 May 2011

CaseChat Overview and Summary

In the case of Sherman v Roads Corporation, the appellant, Sherman, sought to appeal against the Magistrates' Court decision to dismiss his appeal against the suspension of his driver's licence. The Magistrates' Court had initially suspended Sherman's licence under the Road Safety Act 1986 (Vic), and following an appeal by Sherman, the court reheard and dismissed his appeal. Sherman then appealed to the Court of Appeal seeking judicial review of the decision. The Roads Corporation, the first respondent, applied for summary dismissal of the appeal on the basis that it had no prospect of success.

The legal issues before the Court of Appeal involved determining whether the Roads Corporation was a proper party to an appeal under section 26AA of the Road Safety Act, and whether the Magistrates' Court had the authority to rehear an appeal under the same section, either pursuant to section 110 of the Magistrates’ Court Act 1989 (Vic) or by virtue of its inherent power to set aside orders made in the absence of a party.

The Court of Appeal found that the Roads Corporation was a proper party to the appeal as it had a sufficient interest in the proceedings. Additionally, the court held that the Magistrates' Court did not have the power to rehear the appeal under the circumstances presented. The Court of Appeal concluded that the appeal had no reasonable prospect of success and dismissed it.

The Court of Appeal upheld the decision of the Magistrates' Court and dismissed Sherman's appeal. The Roads Corporation's application for summary dismissal of the appeal was granted.

Orders