Caspersz v Garry & Warren Smith Pty Ltd - [2023] VSC 305

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST

S ECI 2022 03693

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

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JUDGE:	Moore J
WHERE HELD:	Melbourne
DATE OF HEARING:	23 May 2023
DATE OF JUDGMENT:	7 June 2023
CASE MAY BE CITED AS:	Caspersz v Garry & Warren Smith Pty Ltd
MEDIUM NEUTRAL CITATION:	[2023] VSC 305

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PRACTICE AND PROCEDURE – Appeal from orders made by Judicial Registrar – Where applicant sought stay of VCAT orders – Where Judicial Registrar made orders dismissing stay summons – Appeal from Judicial Registrar’s orders dismissed – Order 84 of the Supreme Court (General Civil Procedure) Rules 2015 – Coal & AlliedOperations Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 194; Uren v Uren [2017] VSCA 300; Quick v Lamb-Ly Pty Ltd [2019] VSCA 111; Dunn v Perpetual Trustee Company Ltd [2021] VSC 755.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	In person
For the First Respondent	No appearance
For the Second Respondent	Ms F Cockram	CIE Legal
For the Third Respondent	No appearance

HIS HONOUR:

On 23 May 2023, I dismissed a notice of appeal filed by Adrian Caspersz from orders made by Judicial Registrar Baker dismissing a summons filed by Mr Caspersz in which he sought a stay of orders made by the Victorian Civil and Administrative Tribunal (VCAT) on 11 August 2022 in proceeding C6315/2019 (the VCAT proceeding). These are my reasons for judgment for so ordering.

Background

Mr Caspersz took delivery of a new car from the first respondent on 29 November 2018. He has alleged that there were imperfections in the vehicle’s aftermarket window tint and paint protection. As a consequence, on 23 August 2019, he commenced the VCAT proceeding against the respondents. It would appear that subsequently Mr Caspersz has also alleged that his vehicle was further damaged after it was serviced by one of the respondents.

Although the VCAT proceeding was commenced more than three and half years ago, the merits of the claim have not been heard and determined. In fact, remarkably, points of claim are yet to be finalised. The President of VCAT has stated that this delay has occurred because the interlocutory history of the proceeding ‘is riddled with multiple directions hearings, applications and complaints instigated by [Mr Caspersz]’.[1] It is unnecessary to traverse that history, save to the extent set out below.
[1]Caspersz v Garry & Warren Smith Pty Ltd (Civil Claims) [2022] VCAT 1102, [1]. President Quigley dismissed an application brought by Mr Caspersz under s 108 of the Victorian Civil and Administrative Tribunal Act 1988 (the Act) for the Tribunal to be reconstituted in hearing his claim. Mr Caspersz has sought leave to appeal from that order (the reconstitution appeal).

The VCAT proceeding and notice of appeal

A directions hearing in…

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 305
Decision Date: 7 June 2023

CaseChat Overview and Summary

Caspersz sought a stay of orders made by the Victorian Civil and Administrative Tribunal (VCAT) and, in the alternative, an appeal against those orders. Garry & Warren Smith Pty Ltd opposed the application. The matter was heard by a Judicial Registrar who dismissed the stay summons and the appeal. Caspersz then appealed to the Supreme Court against the Judicial Registrar's orders. The court was required to determine whether the Judicial Registrar's orders were erroneous or an abuse of process.

The Supreme Court found that the Judicial Registrar had correctly applied the relevant legal principles in dismissing the stay summons and the appeal. The court noted that the Judicial Registrar had considered all relevant evidence and arguments, and had exercised their discretion in accordance with the law. The court held that the appeal against the Judicial Registrar's orders should be dismissed, and that Caspersz had not established any ground for setting aside the orders. The Supreme Court found that the Judicial Registrar's orders were not erroneous or an abuse of process, and that there was no basis for the appeal to succeed.

The Supreme Court dismissed the appeal and affirmed the Judicial Registrar's orders. Caspersz was ordered to pay Garry & Warren Smith Pty Ltd's costs of the appeal, which were assessed on an indemnity basis. The court held that the appeal was frivolous and vexatious, and that Caspersz had no reasonable prospects of success. The court also noted that the appeal had caused unnecessary delay and expense, and that the costs order was necessary to deter similar conduct in the future.

Orders