Adamopoulos v ASA Nominees Pty Ltd - [2016] VSC 802

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

S CI 2016 00366

BETWEEN:

IRENE ADAMOPOULOS	Plaintiff
v
ASA NOMINEES PTY LTD (ACN 084 232 360) (controllers appointed)	First Defendant
OWNERS CORPORATION PS513436B	Second Defendant

S CI 2015 05653

AND BETWEEN:

ASA NOMINEES PTY LTD (ACN 084 232 306) (Controllers Appointed)	Plaintiff
v
OWNERS CORPORATION PS513436B	First Defendant
- and -
IRENE ADAMOPOULOS	Second Defendant

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JUDGE:	Derham AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	24 October 2016, followed by written submissions on 4 and 18 November 2016
DATE OF JUDGMENT:	20 December 2016
CASE MAY BE CITED AS:	Adamopoulos v ASA Nominees Pty Ltd & Anor
MEDIUM NEUTRAL CITATION:	[2016] VSC 802

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PRACTICE AND PROCEDURE – Application by plaintiff to re-open application for leave to appeal from Victorian Civil and Administrative Tribunal (‘Tribunal’) after reasons for decision pronounced but before final orders drawn up or entered – Discovery of fresh evidence since hearing of the Supreme Court application – Whether evidence is material and would affect the result of the application for leave to appeal – Whether with the exercise of reasonable diligence the evidence could have been discovered before the Tribunal hearing or the application in the Supreme Court – Re Australian Meat Industry Employee’s Union (WA Branch); ex parte Ferguson (1986) 67 ALR 491; Smith v New South Wales Bar Association (No 2) (1992) 176 CLR 256; Spotlight Pty Ltd v NCO Australia Ltd [2012] VSCA 232; Madden v Madden [2014] NSWSC 1098; Inspector-General in Bankruptcy v Bradshaw [2006] FCA 22.

ADMINISTRATIVE LAW – Application for leave to appeal from the Tribunal to the Supreme Court– Orders to be made in favour of successful appellant under the Victorian Civil and Administrative Tribunal Act 1998 (Vic), s 148(7) (‘the VCAT Act’) – Whether appropriate to make orders under Subdivision Act 1988 (‘Subdivision Act’), s 34D – Whether only one conclusion is open on the correct application of the law to the facts found by the Tribunal – Whether factual matter has to be determined as a consequence of the appeal – Whether the outstanding issue involves a factual, evaluative or ministerial judgment within the Tribunal’s jurisdiction – Whether Tribunal should consider again the exercise of the discretion under s 34D of the Subdivision Act – Proceeding remitted to the Tribunal to be heard and decided again - Roy Morgan Research Centre Pty Ltd v Commissioner of State Revenue (2001) 207 CLR 72; Osland v Secretary to the Department of Justice [No 2] (2010) 241 CLR 320.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr AP Dickinson	Succession Legal
For the Defendant	Mr R Horsley (Solicitor)	HWL Ebsworth Lawyers

HIS HONOUR:

Introduction

These reasons concern:

(a) an application by the plaintiff (‘Ms Adamopoulos’) in proceeding SCI 2016 366 (‘the Adamopoulos proceeding’) to amend her proposed notice of appeal and to re-open her application for leave to appeal from the Victorian Civil and Administrative Tribunal (‘the Tribunal’),…

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: [2016] VSC 802
Decision Date: 20 December 2016

CaseChat Overview and Summary

In the Supreme Court of Victoria, Adamopoulos brought an application to re-open their application for leave to appeal a decision made by the Victorian Civil and Administrative Tribunal. The Tribunal’s decision pertained to a dispute between the parties involving issues under the Subdivision Act. The application for leave to appeal was initially dismissed by the Supreme Court, and the reasons for the dismissal were pronounced after the discovery of new evidence by the plaintiff.

The legal issues before the court involved whether the discovery of fresh evidence after the reasons for the dismissal had been pronounced warranted the reopening of the application for leave to appeal. The court had to determine whether the evidence was material and whether it could have been discovered with reasonable diligence prior to the Tribunal hearing or the application in the Supreme Court. Further, the court examined whether the orders sought by the appellant under the VCAT Act and the Subdivision Act were appropriate, and whether the outstanding issue involved a factual, evaluative or ministerial judgment within the Tribunal’s jurisdiction.

The court held that the evidence discovered after the reasons for dismissal were pronounced was material and would likely affect the result of the application for leave to appeal. The court found that the evidence could not have been discovered with reasonable diligence before the Tribunal hearing or the Supreme Court application. It was held that the appropriate orders under the VCAT Act and the Subdivision Act were not made, and the outstanding issue involved a ministerial judgment within the Tribunal’s jurisdiction. Consequently, the proceeding was remitted to the Tribunal to be heard and decided again.

The court ordered that the application for leave to appeal be re-opened and that the proceeding be remitted to the Tribunal for reconsideration in light of the new evidence.

Orders