Almenara v MacLellan

[2004] VSC 28

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

PRACTICE COURT

No. 8515 of 2003

MICHAEL ALMENARA	Plaintiff
v
SUSAN ALEXANDER MACLELLAN	Defendant

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JUDGE:	Hansen J
WHERE HELD:	Melbourne
DATE OF HEARING:	2 February 2004
DATE OF JUDGMENT:	2 February 2004
CASE MAY BE CITED AS:	Almenara v MacLellan
MEDIUM NEUTRAL CITATION:	[2004] VSC 28

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Appeal from Magistrates’ Court – Brought by originating motion rather than under Order 58 Supreme Court Rules – Whether may be amended to achieve compliance with Order 58 – Whether "exceptional circumstances" enabling leave to appeal out of time

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr  G Nash QC & Mr T Danos	McNab McNab & Starke
For the second Defendant	Mr  E Rallis

HIS HONOUR

1. This is an appeal from orders of Master Wheeler made on 5 December 2003, by which he dismissed an application with costs.  The application was brought by originating motion, filed on 24 October 2003.  The originating motion sought declarations in respect of rulings and findings of the first defendant, who was in fact a magistrate, and who had dealt with some charges concerning the plaintiff, then the defendant in the proceedings in the Magistrates' Court.  The second defendant to the originating motion was the informant before the Magistrates' Court.

1. The proceeding was intended to be, as Mr Nash stated, an appeal pursuant to s.92 of the Magistrates' Court Act.  As such the appeal was required to be brought, if that be the right word, pursuant to Order 58 of the Supreme Court Rules.

1. The rules require that an appellant, or perhaps more accurately, a proposed appellant, must show to a Master a prima facie case for relief.  If that is shown, the Master shall, by order, state each question of law that the appellant shows to be raised by the appeal, and give directions in relation to the appeal.  If the appellant does not show a prima facie case for relief, the Master shall refuse the application.

1. In that latter event, no appeal comes about.  That is provided in Rule 58.09.  Rule 58.08 provides that an application for an order under Rule 58.09 shall be by attendance before the Master, supported by affidavit, filed before or upon the attendance.

1. Section 92 itself provides, in sub-s.3, that, an appeal must be instituted not later than 30 days after the day on which the order complained of was made. It is provided further in sub-s.6 that the Supreme Court may grant leave to institute an appeal outside that time if, (a) the court is of the opinion that the failure to institute the appeal within the period of 30 days was due to exceptional circumstances, and, (b) is satisfied that the case of any other party to the appeal would not be materially prejudiced because of the delay.

1. The Master dismissed the application because it was not made to him within the period of 30 days, pursuant to Rule 58.08, and because, as is stated in the other matters section of the order, he concluded that there were no exceptional circumstances within the meaning of s.92(6)(a).

1. Mr Nash QC, in a thorough submission, presented both in writing and orally, submitted that there are two issues before the court on the appeal. The first is whether the application was made within time. Secondly, and if not, were the circumstances exceptional within the meaning of s.92?

1. Notwithstanding the ingenuity of Mr Nash's argument, which was, in effect, that the originating motion may be taken to have been a proceeding which could be amended in order to bring it within the requirements of the rules, in particular, Order 58, and hence to be treated as satisfying the requirement of an application made to the Master within 30 days.  It seems to me that the argument must fail.

1. The requirement is clear in Order 58.  An application must be made to the Master within the period of time, even if it be by way of mention and adjournment to a time when the Master is able to consider it properly.  Until the Master identifies the question of law and is prepared to so state a question, there is no appeal.  Reference to the definition of proceeding does not, I think, aid, because Order 58.07 expressly states that an appeal is not commenced by originating motion or writ.

1. It is a special procedure, designed to ensure that no appeal exists, and therefore there is no defendant who could be vexed in costs, until the hurdle of the Master's consideration is passed.  It would subvert the position to hold that an originating motion, such as that issued here, even if filed within the period of 30 days, could, by some process of subsequent amendment, be deemed to satisfy the requirements of Order 58.  The critical step under Order 58 is the stating of a question which is included in an order.  An order is not an originating motion, and the latter cannot be amended to make it the former.

1. I do not think that the provision in Rule 2.01 as to an irregularity not rendering proceedings a nullity is to the point.  The section itself deals clearly with the requirements and they are not satisfied.  It is not like a mere failure to use the correct form.

1. That brings me then to the second aspect of the argument, and that is that there are exceptional circumstances within the meaning of s.92. I should say at once that I do not consider that there is any evidence that the second defendant would be materially prejudiced if I were to conclude that the circumstances were exceptional, and that leave to extend the time were to be granted. For his part, Mr Nash has concentrated on the exceptional circumstances aspect.

1. What seems clear in this case is that the lawyers for the plaintiff, in preparing and bringing the originating proceeding, misconceived the procedure applicable in the case of an appeal brought under s.92. That is regrettable, but I do not think that that error can constitute exceptional circumstances within the meaning of s.92. They are simply circumstances of omission by the lawyers involved, and in my view, do not amount to such circumstances as ought be considered exceptional within the meaning of s.92. See Kuek v Victoria Legal Aid[1] and Denysenkov v Dessau.[2]

   [1][1999] VSC 158.

   [2][1996] 2 VR 221.

1. Mr Nash, in relying on this aspect of the case, referred to there being arguable grounds of appeal. Even if there may be an arguable matter, that is not relevant in considering whether there are exceptional circumstances that warrant the grant of leave to appeal out of time.  See Schwerin v Equal Opportunity Board[3] and Hughes v Morgan.[4]

   [3](1994) 2 VR 279.

   [4][1998] VSC 147.

1. For those reasons the appeal will be dismissed.  What's the position on costs, Mr Rallis?

(Discussion ensued re costs.)

HIS HONOUR:  Yes, the appeal will be dismissed with costs.