Civic Workers Plus Pty Ltd v Hill - [2000] VSCA 61

APIDOPOULOS v SHERIFF OF VICTORIA SUPREME COURT OF VICTORIA Winneke P, Phillips and Buchanan JJA 26 May 2000 [2000] VSCA 0104 Practice and procedure — Courts and judges — Judgments, orders and declarations — Appeal — Abandonment — Appellant late in delivering note of proposed contents of appeal book — Application to reinstate appeal — Application dismissed by single judge of appeal — Application to Court of Appeal to discharge or vary single judge's order — Whether hearing de novo — Whether applicant must demonstrate miscarriage of discretion — Supreme Court Act 1986 (No 110)s 11(4), 11(5) — Supreme Court RulesCh I rr 64.16, 64.26(1)(g)..

In 1995 the appellant commenced proceedings in the County Court against the sheriff alleging that in 1984 he had wrongfully evicted her from her property and sold it to satisfy a judgment debt. That claim was dismissed as an abuse of process and the appellant was refused leave to appeal. In 1996 another summons seeking substantially the same relief was dismissed as an abuse of process. The Court of Appeal dismissed an appeal from this order and the High Court refused special leave to appeal. In 1999 the appellant commenced a fresh proceeding in the County Court seeking the same relief she had sought in the earlier proceedings. This proceeding was also dismissed as an abuse of process. In prosecuting an appeal against that dismissal, the appellant filed a note of the proposed contents of the appeal book about one week late with the consequence, under r 64.16(1) of the Supreme Court Rules, that the appeal was taken to have been abandoned. Her application for an order under r 64.16(2) that the appeal not be taken to have been abandoned was heard by Chernov JA pursuant to s 11(4) of the Supreme Court Act 1986 and r 64.26(1)(g). He refused it on the basis that to reinstate an appeal so devoid of merit was futile. She applied under s 11(5) of the Supreme Court Act to discharge or vary the order of Chernov JA.

Held, dismissing the application: (1) An application under s 11(5) of the Supreme Court Act 1986 to discharge or vary an order made by a single judge of appeal under s 11(4) of the Act did not involve an appeal in the nature of a re-hearing. Instead, a single judge's discretionary order made under s 11(4) was liable to be discharged or varied only if the discretion could be clearly demonstrated to have miscarried. [18]–[20]. Wentworth v Wentworth(1994) 35 NSWLR 726; Kidron & Spaile Architects Pty Ltd v Garrett(1994) 35 NSWLR 572 followed.

(2) The appellant failed to demonstrate that Chernov JA's discretion miscarried. No error of fact was shown, nor any error of principle. [21], [22].

Decision of Chernov JA [2000] VSCA 70 affirmed.

Application

This was an application under s 11(5) of the Supreme Court Act to discharge or vary an order of Chernov JA made under s 11(4) of…

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

AGLC: Civic Workers Plus Pty Ltd v Hill [2000] VSCA 61
Case: [2000] VSCA 61
Decision Date: 28 April 2000

CaseChat Overview and Summary

The case of Civic Workers Plus Pty Ltd v Hill was heard by the Supreme Court of Victoria, where the appellant, Angela Apidopoulos, sought to discharge or vary an order made by a single judge of appeal. The appellant had filed an appeal against an order made by a County Court judge that dismissed her claim as an abuse of process. The appellant had failed to deliver a note of the proposed contents of the appeal book within the required timeframe, resulting in the appeal being considered abandoned. The appellant sought an order to reinstate the appeal and subsequently applied to the Court of Appeal to discharge or vary the single judge's order. The legal issues before the court were whether the application to discharge or vary a single judge's order involved a hearing de novo and whether the appellant needed to demonstrate a miscarriage of discretion. The court held that the application did not involve a re-hearing but rather required a demonstration of a clear miscarriage of discretion. In this case, the appellant failed to demonstrate such a miscarriage, and the order of the single judge was affirmed. The court dismissed the application, and the appeal was not reinstated.

Orders