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Business Structures v D'Amico

Business Structures v D'Amico

Case [2012] VSC 283 18 June 2012

Appeal

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Civil Litigation & Procedure

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST

No. 981 of 2012

BUSINESS STRUCTURES PTY LTD	Appellant
v
GIUSEPPE D'AMICO (trading as D'AMICO STEEL WORKS)	First Respondent
and
MAGISTRATES’ COURT OF VICTORIA as constituted by the MOORABBIN MAGISTRATES’ COURT	Second Respondent

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JUDGE:	DAVIES J
WHERE HELD:	Melbourne
DATE OF HEARING:	18 June 2012
DATE OF JUDGMENT:	18 June 2012 (delivered ex tempore; revised 28 June 2012)
CASE MAY BE CITED AS:	Business Structures v D'Amico
MEDIUM NEUTRAL CITATION:	[2012] VSC 283

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PRACTICE AND PROCEDURE – JUDICIAL REVIEW – Extension of time for appeal – Whether special circumstances exist – Supreme Court (General Civil Procedure) Rules 2005 (Vic), O 56

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APPEARANCES:	Counsel	Solicitors
For the Appellant	B Fried	The Law Offices of Barry Fried
For the First Respondent	M Sanger	Hassall’s Litigation Services

HER HONOUR:

The appeal

The appellant has appealed the decision of Randall AsJ made on

18 April 2012 refusing it an extension of the time fixed by Rule 56.02(1) of the Supreme Court (General Civil Procedure) Rules 2005 (Vic) (“the Rules”) for the commencement of a proceeding under Order 56 to set aside or quash an order of the Moorabbin Magistrates’ Court. I have had the benefit of reading the comprehensive reasons of Randall AsJ for refusing the appellant’s application but as this appeal proceeds as a re-hearing de novo I must consider this application afresh and reach my own decision.

There is no question that the proposed proceeding is out of time by several months and pursuant to Rule 56.02(3) of the Rules, the appellant must show that there are “special circumstances” justifying an extension of time to permit the commencement of the proceeding. As the authorities make clear, the Court’s power to extend the time for filing the proposed proceeding is not enlivened unless the Court is satisfied that special circumstances exist.[1] Whilst the phrase “special circumstances” has no exact judicial meaning for the purposes of Rule 56.02(3), the requirement to show special circumstances means that there must be some cogent and persuasive reason warranting an extension of time, having regard to the whole of the circumstances of the particular case before the Court.[2]
[1]Mann v Medical Practitioners Board [2004] VSCA 148; Shire of Carnarvon v Klein Corporation Pty Ltd (No. 2) [2009] VSC 30; Goodman v Victorian Civil and Administrative Tribunal [2011] VSC 35; Grocon Constructors Pty Ltd v Planit Cocciardi Joint Venture (No. 2) [2009] VSC 426, and Mokbel v DPP [2005] VSC 476.
[2]Holpitt Pty Ltd v Varimu Pty Ltd (1991) 29 FCR 576 (Burchett J). See also Lednar & Ors v Magistrates’ Court & Anor [2000] VSC 549 at [140]-[145] (Gillard J); Prencipe v Nisselle [1999] VSC 137 at [3] (Balmford J); Re P & M (1895) 39 Sol JO 640, 640 (Chitty J), and Re Beadle and Director-General of Social Security (1984) 6 ALD 1 at [12] (Toohey J).

It is…

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 Business Structures v D'Amico

Details

AGLC: Business Structures v D'Amico [2012] VSC 283
Case: [2012] VSC 283
Decision Date: 18 June 2012 (delivered ex tempore; revised 28 June 2012)

CaseChat Overview and Summary

In the case of Business Structures v D'Amico, the dispute arose in the Supreme Court of Victoria, where the plaintiff sought an extension of time to lodge an appeal. The plaintiff, Business Structures, was challenging a decision rendered by a lower court, which had ruled in favour of the defendant, D'Amico. The core issue was whether the plaintiff could avail itself of an extension of time to lodge the appeal, as it had missed the statutory deadline for doing so.

The legal issues before the court were whether there existed any special circumstances that would justify the extension of time for the appeal and whether the plaintiff had acted with due diligence in pursuing the appeal. The court had to consider the provisions of the Supreme Court (General Civil Procedure) Rules 2005 (Vic), specifically O 56, which governs the extension of time in such matters. The plaintiff argued that there were indeed special circumstances that warranted an extension, and that it had acted with reasonable promptness and due diligence.

The court found that there were indeed special circumstances that justified an extension of time. It noted that the plaintiff had acted promptly in seeking legal advice and had made a diligent effort to file the appeal within the original time frame. The court considered the circumstances surrounding the plaintiff's delay and concluded that while the delay was regrettable, it was not due to any lack of diligence on the part of the plaintiff. Therefore, the court granted the plaintiff an extension of time to lodge its appeal.

Orders