Caspersz v Garry & Warren Smith Pty Ltd - [2023] VSC 555

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST

S ECI 2023 00577

BETWEEN:

ADRIAN CASPERSZ	Applicant
v
GARRY & WARREN SMITH PTY LTD (ACN 004 753 333) & ORS (according to the attached Schedule)	Respondents

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JUDGE:	Irving AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	11 August 2023
DATE OF JUDGMENT:	15 September 2023
CASE MAY BE CITED AS:	Caspersz v Garry & Warren Smith Pty Ltd & Ors
MEDIUM NEUTRAL CITATION:	[2023] VSC 555

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JUDICIAL REVIEW – Supreme Court (Miscellaneous Civil Proceedings) Rules 2018 (Vic), r 4.08(8) – Application to dismiss appellant’s application for leave to appeal – No substantial injustice if leave to appeal refused – Proceeding dismissed.

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APPEARANCES:	Counsel	Solicitors
The Applicant in person
For the Respondents	Mr F Cockram	CIE Legal

TABLE OF CONTENTS

Introduction........................................................................................................................................ 1

Material relied upon by the parties................................................................................................ 2

Background......................................................................................................................................... 2

Mr Caspersz’s proposed appeal.................................................................................................... 10

Mr Caspersz’s submissions............................................................................................................ 14

Relevant legal principles................................................................................................................ 15

Consideration.................................................................................................................................... 18

Does Mr Caspersz’s notice of appeal identify sufficiently or at all a question of law on which the appeal or proposed appeal may be brought?............................................. 18
Does Mr Caspersz have an arguable case on appeal or would refusing leave impose no substantial injustice?............................................................................................. 18
Is Mr Caspersz’s notice of appeal frivolous, vexatious or otherwise an abuse of the process of the Court?........................................................................................................... 25

Extension of time.............................................................................................................................. 26

Conclusion......................................................................................................................................... 27

HIS HONOUR:

Introduction

In November 2018, Mr Caspersz took delivery of a new vehicle from the first respondent. He asserts that on delivery the new vehicle had imperfections in its aftermarket window tint and paint protection. He also alleges that his vehicle was further damaged while it was serviced by one of the respondents. He commenced a proceeding against the respondents in the Victorian Civil and Administrative Tribunal (VCAT) on 23 August 2019.

On 14 February 2023, Mr Caspersz commenced this proceeding by filing a notice of appeal seeking leave to appeal various interlocutory orders made by VCAT members in his VCAT proceeding.

This ruling is about the second respondent’s summons seeking orders dismissing Mr Caspersz’s application for leave to appeal.[1]
[1]The second respondent’s summons sought orders, in the alternative, dismissing any application by Mr Caspersz to extend the time to file his notice of appeal. Mr Caspersz maintains that his notice of appeal was filed within time and, accordingly, he has not made an application for an extension time.

The second respondent seeks the dismissal, pursuant to r 4.08 of the Supreme Court (Miscellaneous Civil Proceedings) Rules 2018 (Vic) (Miscellaneous Rules), on the grounds that:

(a) Mr Caspersz’s notice of appeal does not identify sufficiently or at all a question of law on which the proposed appeal may be brought;

(b) Mr Caspersz does not have an arguable case or to refuse Mr Caspersz leave to appeal would impose no substantial injustice; and

(c) Mr Caspersz’s proposed appeal is frivolous, vexatious or otherwise an abuse of the process of the…

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: [2023] VSC 555
Decision Date: 15 September 2023

CaseChat Overview and Summary

Caspersz v Garry & Warren Smith Pty Ltd involved an appeal against a decision related to a legal dispute. The appellant, Caspersz, sought leave to appeal a decision that had been made in a lower court. The respondent, Garry & Warren Smith Pty Ltd, opposed the application for leave to appeal. The case was heard in the Supreme Court of Victoria.

The central legal issue before the court was whether the appellant had demonstrated a substantial injustice that would warrant granting leave to appeal. This was determined by examining the arguments presented by both parties and assessing whether the appeal had a real chance of success. The court had to decide if the appeal had merit and if dismissing the application would cause significant unfairness to the appellant.

The court concluded that the appellant had not shown a substantial injustice that would result from the refusal of leave to appeal. The reasoning was based on the evidence presented and the court's assessment of the merits of the appeal. The court found that the appeal did not have a real prospect of success and that the appellant's arguments were not compelling enough to warrant further proceedings. Consequently, the court dismissed the application for leave to appeal and the proceeding was dismissed.

The final orders of the court confirmed the dismissal of the application for leave to appeal. The court ruled that no substantial injustice would result from the refusal of leave to appeal and that the proceeding was accordingly dismissed. The decision was based on the court's assessment of the evidence and the arguments presented by both parties.

Orders