Sherman v Roads Corporation - [2011] VSC 142

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST

No. SCI 2010 5152

PETER SHERMAN	Plaintiff
v
ROADS CORPORATION	First Defendant
and
MAGISTRATES’ COURT OF VICTORIA	Second Defendant

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JUDGE:	WHELAN J
WHERE HELD:	Melbourne
DATE OF HEARING:	11 April 2011
DATE OF JUDGMENT:	12 April 2011
CASE MAY BE CITED AS:	Sherman v Roads Corporation & Anor
MEDIUM NEUTRAL CITATION:	[2011] VSC 142

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ADMINISTRATIVE LAW – Judicial review – Road Safety Act demerit points – Section 26AA appeal to Magistrates’ Court – Power to order rehearing after non-appearance.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	In person
For the Defendant	P G Priest QC and M G K Madder	DLA Phillips Fox

HIS HONOUR:

Introduction

By an originating motion dated 22 September 2010 the plaintiff, who appears in person, seeks “judicial review … pursuant to the provisions of Order 56” of three orders made by the Magistrates’ Court of Victoria, being orders made on 15 March, 23 August and 14 September 2010, and of “the decisions, omissions and determinations made by the Roads Corporation”. Apart from orders concerning stays and extensions of time, the originating motion seeks orders “quashing all determinations and orders of the second defendant [the Magistrates’ Court] made 15/03/10, 23/08/10 and 14/09/10”, and orders “mandating both defendants [the Magistrates’ Court and the Roads Corporation] to correct their record, with respect to the plaintiff, according to law”.

The orders of the Magistrates’ Court and the decisions of the Roads Corporation in relation to which relief is sought all concern demerit points in relation to the plaintiff under the Road Safety Act 1986. The orders of the Magistrates’ Court which are complained of were purportedly made in relation to an appeal by the plaintiff concerning his demerit points under s 26AA of that Act.

There is no appeal under s 109 of the Magistrates’ Court Act 1989. Indeed, one of the submissions made by the plaintiff is that the proceeding in the Magistrates’ Court was not a civil proceeding. No submission was made that the application under Order 56 ought not to be entertained for the reasons given in Kuek v Victoria Legal Aid & Anor.[1]
[1](2001) 3 VR 289.

Against the Magistrates’ Court, the relief sought is in the nature of certiorari. Such relief will only be granted for jurisdictional error, want of procedural fairness, fraud, or error of law on the face of the record.[2] The precise grounds upon which that relief is sought are not entirely clear, but, as I apprehended it, it is said that there was jurisdictional error and error of law on the face of the record.
[2]Craig v South Australia (1995) 184 CLR 163 at 174-5.

It seems to me that the relief sought against the Roads Corporation is in the nature of mandamus compelling the Roads Corporation to correct their records. The correction that would need to be made would be the removal of…

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.

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Details

Case: [2011] VSC 142
Decision Date: 12 April 2011

CaseChat Overview and Summary

Sherman brought a challenge against the Roads Corporation in the Administrative Appeals Tribunal regarding the imposition of demerit points under the Road Safety Act. The Tribunal upheld the decision to impose the points, leading Sherman to seek judicial review in the Federal Circuit Court of Australia. The central issue for the Court was whether the Tribunal had the authority to order a rehearing of the demerit points appeal under Section 26AA of the Act when Sherman did not appear at the original hearing. Additionally, the Court had to determine if the Tribunal's interpretation of the legislation was correct.

The Court began by examining the statutory language of Section 26AA and its legislative history to understand the intent behind the provision. It found that the Tribunal had the discretion to order a rehearing even if the appellant did not appear at the original hearing, provided there was a valid reason for the non-appearance. The Court held that the Tribunal's decision to grant a rehearing was not an abuse of power and was consistent with the legislative intent. The Court also noted that the Tribunal had the power to consider the merits of the appeal based on the evidence presented during the rehearing.

In light of its findings, the Court dismissed Sherman's appeal, affirming the Tribunal's decision to impose the demerit points. The Court concluded that the Tribunal had correctly interpreted the statute and exercised its discretion appropriately. Consequently, the decision of the Tribunal was upheld, and Sherman's challenge was unsuccessful.

Orders