West v Creasey & Anor - [2000] VSCA 80

SUPREME COURT OF VICTORIA

COURT OF APPEAL Not Restricted

No. 7147 of 1999

TERRENCE NOEL WEST

Appellant

NICHOLAS DAVID CREASEY and ANOR.

Respondent

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JUDGES:	WINNEKE, P., CALLAWAY and BUCHANAN, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	27 April 2000
DATE OF JUDGMENT:	27 April 2000
MEDIUM NEUTRAL CITATION:	[2000] VSCA 80

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Practice and Procedure – Originating motion seeking relief in nature of certiorari to quash order of County Court judge on basis of denial of natural justice – Appeal to County Court from Magistrates’ Court orders for traffic offences – Judge refusing application for leave to abandon appeal and increasing period of suspension of driving licence.

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APPEARANCES:

Counsel

Solicitors

For the Appellant

Mr. D. Ross, Q.C. with
Mr. S. Gillespie-Jones

Law Partners

For the 1^st Respondent

For the 2^nd Respondent

Mr. G.J.C. Silbert

No appearance

P.C. Wood, Solicitor for Public Prosecutions

WINNEKE, P.:

I will invite Buchanan, J.A. to give the first judgment in this appeal.

BUCHANAN, J.A.:

On 29 June 1999 the appellant was convicted in the Magistrates' Court of three traffic offences. The appellant, who did not attend the hearing, was represented by a barrister who pleaded guilty on his behalf. On a charge of failing to give way the appellant was fined $800 and his licence to drive a motor car was cancelled for two months. On a charge of failing to stop after an accident his licence was suspended for four months. On a charge of failing to exchange names and addresses after an accident the appellant's licence was suspended for four months. The effective period of suspension was thus four months.

The appellant appealed to the County Court. On this occasion the appellant appeared, pleaded not guilty and gave evidence. The appellant admitted that a utility driven by him collided with a motor car after he entered Canterbury Road from an abutting service road. He agreed with prosecution witnesses that traffic was heavy. The driver of the car struck by the appellant's utility said in evidence that he stopped further down Canterbury Road. According to the driver himself, he stopped about 150-200 metres from the point of collision, while another prosecution witness said the distance was between 30 and 40 metres. The drivers of two other cars, who saw aspects of the accident, also stopped at the same place. The appellant's utility was seen leaving the scene and did not reappear. The appellant's evidence was that after the accident he drove to an off licence premises just around the corner in Boronia Road. The appellant said he knew the proprietor of the liquor store and told him of the accident. The appellant returned to the scene of the accident. He said that there was no one there. He waited two hours and then left. The appellant's friend said that the appellant told him he had been involved in an accident. From the door of his shop he could see no damaged vehicles nor any persons in the vicinity 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.

Continue reading West v Creasey & Anor

Details

AGLC: West v Creasey [2000] VSCA 80
Case: [2000] VSCA 80
Decision Date: 27 April 2000

CaseChat Overview and Summary

In the case of West v Creasey & Anor, the plaintiff, West, brought an originating motion seeking relief in the nature of certiorari to challenge an order made by a County Court judge. The dispute arose from an appeal to the County Court from a decision made by the Magistrates’ Court concerning traffic offences. The plaintiff contended that the County Court judge denied them the principles of natural justice by refusing an application for leave to abandon the appeal and subsequently increasing the period of suspension of their driving licence.

The primary legal issues before the court were whether the County Court judge's decision constituted a breach of natural justice and, if so, whether the order could be quashed. Specifically, the court needed to determine whether the refusal to allow the plaintiff to abandon their appeal, coupled with the extension of the driving licence suspension, constituted a procedural error that warranted the issuance of certiorari.

The court examined the principles of natural justice, which include the rule against bias and the requirement for a fair hearing. It was found that the County Court judge did not act in a manner that breached these principles. The judge's decision to refuse leave to abandon the appeal was deemed to be within their discretion, and there was no evidence of bias or unfairness in the proceedings. Consequently, the court determined that the order did not warrant quashing, and the plaintiff's application for relief was dismissed.

The court's decision was final, and no further orders were made beyond dismissing the originating motion for certiorari. The County Court judge's decision to refuse leave to abandon the appeal and extend the driving licence suspension was upheld as lawful and within the judge's discretion.

Orders