Cohen v Accounts Control Management Services Pty Ltd - [2009] VSC 618

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

PRACTICE COURT

No. 6198 of 2009

ADRIAN COHEN	Plaintiff
v
ACCOUNTS CONTROL MANAGEMENT SERVICES PTY LTD	Defendant

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JUDGE:	VICKERY J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	4 DECEMBER 2009
DATE OF JUDGMENT:	4 DECEMBER 2009
CASE MAY BE CITED AS:	COHEN v ACCOUNTS CONTROL MANAGEMENT SERVICES PTY LTD
MEDIUM NEUTRAL CITATION:	[2009] VSC 618

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PRACTICE AND PROCEDURE – Dismissal of Appeal by Associate Judge – Rule 58.10(8) Supreme Court (General Procedure) Rules 2005 – Appeal from decision of a Magistrate on a question of law – Some evidence on which Magistrate founded his decision – No arguable case on appeal – Appeal from decision of Associate Judge dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Appellant/Defendant	Mr M. Corrigan	Salinger & Associates
For the Respondent/Plaintiff	Mr M. O’Connor	Macpherson & Kelley Lawyers Pty Ltd

HIS HONOUR:

This matter arises out of an appeal under s.109 of the Magistrates' Court Act1989 pursuant to which the appellant, Adrian Cohen, seeks to appeal a decision of a Magistrate made in favour of the respondent, Accounts Control Management Services Pty Ltd (“Accounts Control”). The appeal came before an Associate Judge on an application by Accounts Control that the appeal should be dismissed under rule 58.10(8) of the Supreme Court (General Civil Procedure) Rules2005. Under this rule, the Associate Judge may dismiss an appeal if satisfied:

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

(b) the appellant does not have an arguable case on appeal or to refuse leave would impose no substantial injustice; or

(c) the appeal is frivolous, vexatious or otherwise an abuse of the process of the court.

The Associate Judge dismissed the appeal. I infer from the way in which argument has been presented before me that this was done pursuant to sub‑paragraph (b) of the rule 58.10(8), namely on the ground that the appellant does not have an arguable case on appeal or to refuse leave would impose no substantial injustice.

The appellant now seeks to appeal the decision of the Associate Judge.

I accept the submission made by Mr Corrigan, who appeared on behalf of the appellant, assisted by Mr Herbert of Counsel, that a high degree of certainty must be present before an Associate Judge should act under sub‑paragraph (b) of rule 58.10(8) to dismiss an appeal in effect summarily on the basis that an appellant does not have an arguable case on appeal or to refuse leave would impose no substantial injustice. In this situation, there are parallels with the operation of Order 23 and the well established observations of the High Court on the way in which summary dismissal applications ought to be approached.[1]
[1]See: General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR at 129 per Barwick CJ.

In this case, being an appeal pursuant to s.109 of the Magistrates' Court Act1989

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: [2009] VSC 618
Decision Date: 4 DECEMBER 2009

CaseChat Overview and Summary

Cohen brought an appeal against Accounts Control Management Services, challenging the dismissal of his appeal against a magistrate's decision. The appeal was heard in the Supreme Court of Victoria. The central issue was whether the court should dismiss the appeal under Rule 58.10(8) of the Supreme Court (General Procedure) Rules 2005. This rule permits the dismissal of an appeal from a magistrate's decision on a question of law if there is no arguable case.

The court considered whether the evidence presented to the magistrate provided a sufficient basis for the decision. It examined whether the appeal had any merit, focusing on whether there was an arguable case to be made. The court found that the evidence provided to the magistrate was adequate, and the appeal lacked an arguable basis. Consequently, the court determined that the appeal should be dismissed.

The Supreme Court held that the appeal from the magistrate's decision did not present an arguable case. The evidence relied upon by the magistrate was deemed sufficient to support their decision. Given this, the court exercised its discretion under Rule 58.10(8) to dismiss the appeal. The reasoning centred on the absence of a substantial legal argument that could challenge the magistrate's findings.

Orders