“QUOTEWORTHY” 2002

1. “It is not, in my view, appropriate to seek to judicially define the meaning of the phrase ‘special circumstances’ in the relevant Rule. The phrase is deliberately flexible and designed to encompass cases which might not easily be anticipated by more prescriptive words. See the authorities cited by Balmford J in the case of Prencipe v Masel as set out by Balmford J in Carra v Hamilton [2001] VSC 215; (2001) 3 VR 114. See also Jess v Scott [1986] FCA 473; (1986) 12 FCR 187; (1986) 70 ALR 185; (1986) 14 IR 341.

I would add that I find argument as to the meaning of the phrase by reference to dictionaries and synonyms to be of little assistance. In that regard I refer to the preface to Dr Johnson’s dictionary: “To explain requires the use of terms less abstruse than that which is to be explained and such terms cannot always be found … The easiest word, whatever it may be, can never be translated into one more easy”. Cozens v Bruteras [1972] UKHL 6; [1973] AC 854 t 867; [1972] 2 All ER 1297; (1972) 3 WLR 521;  (1972) 136 JP 390; (1972) 56 Cr App R 799 .” per Osborn J in Mann v Medical Practitioners Board of Victoria [2002] VSC 256; 18 VAR 458, Vic Sup Ct, 18 June 2002.

2. “I agree that the meaning of the expression “take steps to have the matter dealt with” is by no means clear: the three verbs or verbal phrases italicised, not to mention the word “matter”, are extremely vague. Is the compound expression merely conative or inchoative (as the expression “take steps with a view to having the matter dealt with” would clearly be) or is it, on the other hand, perfective, denoting achievement (meaning “take steps to have, and succeed in having, the matter dealt with”)?[16] It could be either, depending on context, and the context here is slight even when the legislative history of the expression is included. But a concluded view need not be expressed, for, even if the first and less demanding alternative interpretation is correct, Tipper did not select this option: he did not seek to invoke the criminal law.[17]
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[16] Even then, the denotation of “dealt with” in the present context may not be disposal or finalisation, but prosecution or hearing.
[17] It may be noted that, on the other interpretation, a disciplinary officer who had referred the matter to prosecuting authorities would be at liberty to take action under another paragraph in the event that those authorities declined to lay a charge.”
Per Batt JA in Stewart v Crowley [2002] VSCA 201; (2002) 6 VR 479, Vic Sup Ct, Court of Appeal, 13 December 2002.