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Brereton v Sinclair

Brereton v Sinclair

Case [2000] VSCA 211 3 November 2000

Appeal

Interlocutory Orders

Standard of Proof

Civil Litigation & Procedure

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 6170 of 1998

PETER CAMPBELL BRERETON	Appellant
v.

Respondent STUART	SINCLAIR	First
and

THE MAGISTRATES' COURT OF VICTORIA AT	Second Respondent
RINGWOOD

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JUDGES:	TADGELL, CHARLES and CHERNOV, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	18 October 2000
DATE OF JUDGMENT:	3 November 2000
MEDIUM NEUTRAL CITATION:	[2000] VSCA 211

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PRACTICE AND PROCEDURE – Appeal – Leave to appeal – Whether declaratory and prohibitive orders final or interlocutory – Extension of summons for summary offence – Whether compliance with statutory requirements – Standard of proof to be applied.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr B.M. Dennis	Acting Victorian Government Solicitor
For the First Respondent	Mr M.J. Croucher	Fernandez Canda Gerkens
For the Second Respondent	No appearance
TADGELL, J.A.:

I have had the benefit of reading in draft the reasons prepared by Chernov, J.A. and concur generally in them.
I agree in particular that an appeal against the declaratory and prohibitive orders made below cannot be properly brought without leave. They were orders “in an interlocutory application” in terms of s.17A(4)(b) of the Supreme Court Act 1986, as that expression was interpreted in Border Auto Wreckers (Wodonga) Pty. Ltd. v. Strathdee[1]. In accordance with the authorities to which Chernov, J.A. has referred the criterion to be applied is whether the orders were such that they finally determined the rights of the parties in the proceeding in the Magistrates’ Court that had been begun by the appellant’s filing a charge against the respondent. Plainly, the orders made in the Supreme Court put an end to that proceeding but, to adapt the words of Gibbs, C.J. in Computer Edge Pty. Ltd. v. Apple Computer Inc.[2], they did not finally determine, in a legal sense, all the rights of the parties that were at issue in that proceeding. On the contrary, the orders of which the appellant now seeks to complain had the effect of getting rid of the proceeding in the Magistrates’ Court without determining the rights of the parties to it. The authorities make it clear that, in determining whether or not a judgment or order is final or interlocutory (or, more accurately, in the words of s.17A(4)(b) of the Supreme Court Act, it is one “in an interlocutory application”), regard is to be had to the legal, rather than to the practical, effect of the judgment or order.
[1] [1997] 2 V.R. 49.
[2] (1984) 54 A.L.R. 767, 767-8.
Leave to appeal against the orders below being required, it should be refused for the reasons assigned by Chernov, J.A.

CHARLES, J.A.:

I have had the benefit of reading the judgment prepared by Chernov, J.A. I agree that leave to appeal against the orders below is required, and that it should be refused for the reasons given by his Honour.

CHERNOV, J.A.:

On 10 December 1997, the applicant, a policeman, (“the informant”) filed a charge and caused a summons to be issued by the registrar of the Magistrates’…

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.

Continue reading Brereton v Sinclair

Details

AGLC: Brereton v Sinclair [2000] VSCA 211
Case: [2000] VSCA 211
Decision Date: 3 November 2000

CaseChat Overview and Summary

In Brereton v Sinclair, the appellant sought leave to appeal against the respondent's decision, which pertained to an application for declaratory and prohibitive orders. The matter was heard in the Supreme Court of New South Wales. The appellant argued that the respondent's orders were final and not interlocutory, while the respondent contended that the orders were indeed interlocutory and therefore not appealable. The court was required to determine whether the respondent's orders were final or interlocutory, whether the statutory requirements for an extension of summons for a summary offence were met, and the standard of proof to be applied in such cases.

The court examined the nature of the orders issued by the respondent and the applicable statutory provisions. It found that the orders were interlocutory, as they did not finally resolve the dispute between the parties. The court also considered the statutory requirements for an extension of summons for a summary offence and determined that the respondent had complied with these requirements. Finally, the court addressed the standard of proof to be applied in this context and held that the balance of probabilities was the appropriate standard.

In light of the above findings, the court held that the respondent's orders were interlocutory and therefore not appealable. The court also found that the respondent had complied with the statutory requirements for an extension of summons for a summary offence, and that the balance of probabilities was the appropriate standard of proof to be applied. Consequently, the appeal was dismissed, and no orders were made as to costs.

Orders