Brereton v Sinclair & Anor [2000] VSCA 211

Brereton v Sinclair & Anor [2000] VSCA 211 - VSCA 2000 case summary — Zoe

[15]

I turn first to consider whether her Honour's order is final or interlocutory. The distinction between final and interlocutory orders is far from certain. The endeavour to determine into which category a particular order falls often involves the difficult process of characterising it and trying to reconcile conflicting authorities where "no golden thread of logic runs through the cases"[3]. Brooking, J.A. in Border Auto Wreckers (Wodonga) Pty. Ltd. v. Strathdee[4] said that, in determining whether an order is final or interlocutory, regard should be had to "decided cases specifically in point or, in the absence of such a decision, to rules which are now established by decisions of the High Court". There are certain categories of orders which have been recognised by the courts as being interlocutory. For example, it has been accepted that an order striking out or dismissing a proceeding on the ground that it is scandalous, vexatious or an abuse of process or because it discloses no reasonable cause of action, is interlocutory (Hall v. Nominal Defendant[5]; Little v. The State of Victoria[6] and Lucas v. Public Transport Corporation Victoria[7]). It has also been held that an order extending time under s.23A of the Limitation of Actions Act is interlocutory (Border[8]) and so is a refusal to set aside a default judgment (Hall[9], applied in Carr v. Finance Corporation of Australia Ltd (No.1)[10]). Similarly, it seems that where the order is ancillary to the main proceeding (in the sense that it deals with a matter other than one which is the subject of the dispute in the present proceeding) it is ordinarily treated as interlocutory. Thus, in Hornsby v. Kaschke[11] the judge quashed the order of a magistrate requiring the informant to deliver to the defendant the relevant breath analysing instrument. It was held[12] that the order was interlocutory because it was ancillary to the principal proceeding in the Magistrates' Court which, so far as is relevant, was concerned with the allegation that the appellant was in charge of a motor vehicle while the level of alcohol in his blood was above the prescribed limit. In Brincat v. R.[13] it was held that an order for the transfer of a prisoner to Western Australia under the relevant legislation was interlocutory because it was merely a step in the process whereby the applicant was to be tried in that State. The order was necessarily ancillary to the principal matter, namely, the prosecution of the applicant.

[24]

Thus, unless the order itself has the legal effect of finally disposing of the rights of the parties in the principal proceeding, ordinarily it will not be treated as final. It usually follows that, if the aggrieved party can make a fresh application of the kind that has been dismissed or rejected by the order, the order in question will be treated as interlocutory notwithstanding that the possibility of the further application succeeding is so remote as to be fanciful. If it is theoretically open for the applicant to make a fresh application, the order in question is interlocutory: Southern Cross[30]. In that case the court had ordered that, in default of certain steps being taken by the plaintiff by a particular date, "the proceeding be and stand dismissed ...". The applicant failed to comply with the order and brought an application seeking an order that the proceeding not stand dismissed. By that time, the limitation period had expired. The application was dismissed, his Honour declaring that the proceeding had been dismissed by the operation of a self-executing order. Handley, J.A. considered[31] that the order dismissing the motion for an extension of time did not "itself" finally dispose of the rights of the parties in the action. He gave two reasons for this conclusion. First, at least in legal theory, a further application for extension of time could be brought. Secondly, the order merely refused an extension of time. The fact that the proceedings stood finally dismissed was the result of the self-executing order and not the result of the order refusing an extension of time. His Honour was also of the view that the declaration that the action had been dismissed by the operation of the self-executing order was interlocutory notwithstanding that it necessarily precluded any further application to the court for a contrary declaration. His Honour considered that the declaration did not itself foreclose the possibility of an extension of time for compliance with the self-executing order being applied for and granted. Furthermore, the declaration did not itself dismiss the action but declared that the action had been previously dismissed. Thus, the rights of the parties in the principal cause had been finally determined by the self-executing order dismissing the action. The declaration did not "deal directly with the rights in contest in the action".

[36]

"This issue, namely, whether the offence was committed within the jurisdiction, is distinct from that of guilt, namely, whether the elements of the offence are made out. Proof of jurisdiction is a prerequisite of guilt but otherwise it is not an element in proof of the commission of the offence except in those cases in which the offence is so defined that commission of it in a place or locality is made an element of the offence charged. Proof of the commission of the offence must be demonstrated beyond reasonable doubt. But this does not mean that proof of the existence of jurisdiction must first be established beyond reasonable doubt. ... The fundamental principle is not offended if the facts essential to the existence of jurisdiction in the court to enter judgment are required to be established according to the civil standard of proof. That is a discrete question which may be left to a jury upon the lesser standard of proof without diverting them from the standard which they are otherwise required to apply in determining guilt or innocence. Cf. Ahern v. The Queen[45]. The policy or purpose which underlies the fundamental principle is sufficiently served and the protection of the accused adequately assured if the criminal standard of proof is applied to all the facts relied upon to make out the elements of the offence. To apply that standard to the proof of facts establishing the jurisdiction of the trial court would extend the protection of an accused person to the point of entitling him to an acquittal on the ground that the prosecution could not prove beyond reasonable doubt that the offence was committed in one State or Territory rather than another, even though, if jurisdiction were assumed, the circumstances would be such as to show beyond reasonable doubt that the accused committed the offence charged. To extend the protection in this way would travel beyond the interests which the law seeks to safeguard in imposing the criminal standard of proof and at the same time adversely affect the public interest in the administration of justice by allowing a wrongdoer to escape conviction, notwithstanding that the balance of probabilities suggest that the wrongdoer is subject to the jurisdiction from which he seeks to escape."

At a glance

Court

Decision date

Before

Source

Judgment (70 paragraphs)

Parties