Bahonko v Casey City Council - [2008] VSC 571

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 8744 of 2008

STANISLAWA BAHONKO	Appellant
v
CASEY CITY COUNCIL	Respondent

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JUDGE:	WILLIAMS J
WHERE HELD:	Melbourne
DATE OF HEARING:	9 December 2008
DATE OF JUDGMENT:	18 December 2008
CASE MAY BE CITED AS:	Bahonko v Casey City Council
MEDIUM NEUTRAL CITATION:	[2008] VSC 571

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MAGISTRATES’ COURT – Judgment in default of appearance - Appeal from order refusing application for rehearing and costs order – Whether final orders – Magistrates’ Court Act 1989 s 109, s 110.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	The Plaintiff appeared in person
For the Defendant	Mr D K Shirrefs	Maddocks Lawyers

HER HONOUR:

Under the terms of a judgment entered in default of appearance on 3 August 2006, Mrs Bahonko was ordered by the Magistrates’ Court at Dandenong to pay to the Casey City Council the sum of $1,286.82 for arrears of rates, $27.15 by way of interest and costs of $529.40.

Mrs Bahonko applied under s 110 of the Magistrates’ Court Act 1989 (“the Act”) for a rehearing and her application was refused by Magistrate Lauritsen on 17 September 2008. She was ordered to pay the Council’s costs to be taxed in default of agreement.

Mrs Bahonko then appealed from those orders to the Court under s 109 of the Act. On 19 November 2008, Master Daly first refused an application for adjournment by Mrs Bahonko and then dismissed the appeal on the grounds that the appeal was from an interlocutory rather than from a final order.

The Master also said that she would, in any event, have dismissed the appeal on the basis that neither the notice of appeal or the amended notice of appeal identified a question of law upon which the appeal was brought. The Master went on to say :

Having regard to the evidence and the submissions, there is no evidence upon which I could find any arguable question of law, nor can the deficiencies of the proposed notices of appeal be cured by amendment.

Mrs Bahonko now appeals from the Master’s decision under r 77.05 of the Supreme Court (General Civil Procedure) Rules 2005 (“the Rules”). She argues that the Master erred in concluding that both the order refusing her application under s 110 of the Act and the order for costs made against her in the application were interlocutory rather than final in nature and therefore not appellable under s 109 of the Act. The appeal is by a re-hearing de novo under r 77.07(5) and I must consider the matter afresh.

Mr Shirrefs who appeared for Casey City Council relied upon the decision of Beach J in Guss v Johnstone[1] for the proposition that an order refusing an application for a rehearing in the Magistrates’ Court is properly characterised as interlocutory because it does not finally dispose of the parties’ rights, it being open to the disappointed party to apply again to have the judgment set aside.…

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: [2008] VSC 571
Decision Date: 18 December 2008

CaseChat Overview and Summary

The case of Bahonko v Casey City Council involved a plaintiff seeking to appeal a decision of the Magistrates’ Court of Victoria which had dismissed their application for a rehearing and denied an order for costs. The plaintiff, Bahonko, had originally obtained a judgment against the defendant, Casey City Council, in default of their appearance. Dissatisfied with the outcome, Bahonko sought a rehearing of the matter and an order for costs, which was refused by the Magistrates’ Court. The plaintiff subsequently appealed the decision, arguing that the Magistrates’ Court had erred in its interpretation of the relevant statutes.

The primary legal issue before the court was whether the Magistrates’ Court had the authority to refuse the plaintiff’s application for a rehearing and an order for costs, and if such a decision constituted a final order under the Magistrates’ Court Act 1989. The court was required to consider the relevant statutory provisions, specifically sections 109 and 110 of the Act, to determine the scope of its jurisdiction in such matters.

The court found that the Magistrates’ Court had correctly interpreted the provisions of the Magistrates’ Court Act 1989. It held that the refusal of an application for a rehearing and an order for costs constituted a final order within the meaning of section 110 of the Act. The court reasoned that the statutory provisions did not confer upon the Magistrates’ Court the power to grant such relief, and that the decision of the Magistrates’ Court was therefore final and could not be appealed. Accordingly, the appeal was dismissed.

The court made no further orders.

Orders