Terry v Johnson & Anor - [2008] VSC 123

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION

No. 10277 of 2006

ADRIAN JOHN TERRY	Plaintiff
V
BRODIE MELISSA JOHNSON and THE COUNTY COURT OF VICTORIA	Defendants

---

JUDGE:	JUDD J
WHERE HELD:	Melbourne
DATE OF HEARING:	2 April 2008
DATE OF JUDGMENT:	8 May 2008
CASE MAY BE CITED AS:	Terry v Johnson and anor
MEDIUM NEUTRAL CITATION:	[2008] VSC 123

---

Administrative law – Judicial Review – County Court – relief in the nature of certiorari – error of law on the face of the record – dispute as to record – discretion to reject evidence – no error of law - originating motion dismissed.

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr P Billings	M K Steele & Giammario
For the First Defendant	Mr AD Halse	Solicitor for Public Prosecutions

HIS HONOUR:

Introduction

This proceeding, commenced by originating motion, is brought by the plaintiff Adrian John Terry, against the Informant Brodie Melissa Johnson, pursuant to Order 56 of the Rules of Court. The Informant is now known as Brodie Melissa Sontag. The plaintiff seeks an order in the nature of certiorari quashing the decision made in the County Court at Melbourne. The plaintiff had been convicted in the Magistrates’ Court at Heidelberg on 10 June 2005 of a charge under s 49(1)(f) of the Road Safety Act 1986 (the Act). He was fined, ordered to pay costs and disqualified from driving. His appeal was heard and dismissed on 17 November 2006 and he was convicted of the same offence, with the same penalty and period of disqualification, as had been imposed by the magistrate.

The plaintiff contends that the judge hearing his appeal in the County Court failed to properly exercise her discretion to reject evidence constituted by a certificate of analysis tendered by the prosecution and relied upon as conclusive proof of the facts alleged therein. The certificate indicated that at the relevant time, the plaintiff had a blood alcohol reading of 0.127 grams of alcohol per 100ml of blood. The plaintiff alleges that the judge failed to apply the decision of the Court of Appeal in DPP v Moore[1] to exclude the evidence on public policy grounds because of the improper conduct of Senior Constable Warr (the operator) who operated the breath analysis instrument and who, it is said, talked the plaintiff out of having a blood test.
[1][2003] 6 VR 430.

The grounds for relief relied upon by the plaintiff are as follows:

(a)That the [judge] erred in law in refusing to dismiss a charge under s. 49(1)(f) of the Road Safety Act 1986 brought against the Plaintiff.
(b)That the [judge] denied the Plaintiff procedural fairness and/or natural justice and/or refused to exercise a jurisdiction that she had and/or erred at law and/or there was error on the face of the record in convicting the Plaintiff of an offence under Section 49(1)(f) of the Road Safety Act 1986 where under the circumstances:
(i)There was uncontradicted evidence from…

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 Terry v Johnson & Anor

Details

AGLC: Terry v Johnson [2008] VSC 123
Case: [2008] VSC 123
Decision Date: 8 May 2008

CaseChat Overview and Summary

The case of Terry v Johnson & Anor arose in the County Court of Victoria, where the plaintiff sought relief in the form of certiorari to challenge a decision made by the defendants. The plaintiff, Terry, contested a ruling that was made by the County Court, asserting that the court had committed an error of law that was apparent on the face of the record. The defendants, Johnson and another unnamed party, defended the decision, arguing that no such error existed. The court was tasked with determining whether the plaintiff's application for certiorari was warranted, specifically whether the County Court had indeed erred in law.

The primary legal issue before the court was whether the County Court had made an error of law that was sufficiently clear to warrant the issuance of certiorari. The court needed to consider whether the record presented to it was accurate and complete, and if so, whether it demonstrated an error of law on the face of the record. Furthermore, the court had to assess the admissibility and weight of evidence submitted by the plaintiff, including any evidence that was not part of the original record. The court's discretion to reject additional evidence and the extent to which it could consider such evidence were also pivotal in the resolution of the matter.

In examining the arguments and evidence presented, the court concluded that the County Court had not erred in law. The record, as presented, did not contain any apparent errors that would justify the issuance of certiorari. The court also exercised its discretion to reject additional evidence submitted by the plaintiff, finding that this evidence did not alter the outcome of the case. The court determined that the decision made by the County Court was correct and that there was no basis for the relief sought by the plaintiff. Consequently, the originating motion was dismissed.

The court did not make any additional orders beyond dismissing the plaintiff's motion for certiorari. The County Court's decision remained intact, and the plaintiff's challenge was unsuccessful. The ruling reinforces the principles governing judicial review and the limited circumstances under which a court may intervene to quash a decision made by another tribunal.

Orders