De Luca v De Luca - [2024] VSC 541

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S ECI 2023 05036

FABIO DE LUCA	Applicant
v
MARIA DE LUCA	Respondent

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JUDGE:	Goulden AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	25 June 2024
DATE OF JUDGMENT:	5 September 2024
CASE MAY BE CITED AS:	De Luca v De Luca
MEDIUM NEUTRAL CITATION:	[2024] VSC 541

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PRACTICE AND PROCEDURE — Application for leave to appeal against decision of Victorian Civil and Administrative Tribunal —Respondent sought dismissal of the appeal proceeding pursuant to r 4.08(8) of the Supreme Court (Miscellaneous Civil Proceedings) Rules 2018— Application also made by respondent for summary judgment pursuant to ss 62 and 63 of the Civil Procedure Act 2010 (Vic) —Respondent sought costs on an indemnity basis —Applicant to pay respondent’s costs on a standard basis.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	No appearance
For the Respondent	Mr M Biviano of Counsel	Keuris Legal

TABLE OF CONTENTS

Background to the Appeal................................................................................................................ 1

VCAT proceedings........................................................................................................................ 1

The Summary Determination Application................................................................................... 4

Grounds on which Summary Determination is Sought............................................................ 5

Dismissal pursuant to r 4.08(8) of the MCP Rules.................................................................... 6
Dismissal pursuant to ss 62, 63 and 64 of the CPA and r 22.16 and 22.22 of the GCP Rules 10
Other grounds of dismissal....................................................................................................... 12

Disposition........................................................................................................................................ 12

HER HONOUR:

In this proceeding, the applicant seeks leave to appeal two decisions of the Victorian Civil and Administrative Tribunal under s 148 of the Victorian Civil and Administrative Tribunal Act 1998. Under that provision, a party may appeal on a question of law only and leave to appeal is required.

By her summons dated 3 April 2024, the respondent seeks summary determination of the appeal proceeding. I heard the respondent’s application on 25 June 2024. The applicant, who is self-represented, did not appear at the hearing.

Background to the Appeal

The applicant appeals against two VCAT decisions:

(a) the orders of Member Curie in VCAT proceeding R2022/31320 made on 19 May 2023 ( ‘May 2023 Decision’);[1] and

(b) the orders of Member Curie in VCAT proceeding R2023/26574 made on 3 October 2023 (‘October 2023 Decision’).[2]

[1]Order of Member Curie in De Luca v De Luca (VCAT, Reference No. R2022/31320/04, 19 May 2023). A copy of the May 2023 Decision is exhibited to the affidavit of Roderick Keuris sworn 11 December 2023, Exhibit RK-1, 22–4 (‘First Keuris Affidavit’).

[2]Order of Member Curie in De Luca v De Luca (VCAT, Reference No. R2023/26574/00, 3 October 2023). A copy of the October 2023 Decision is exhibited to the First Keuris Affidavit, Exhibit RK-1, 36.

The original notice of appeal was filed on 23 October 2023, which, in respect of the May 2023 Decision, was outside the 28 day period for the filing of an application for leave to appeal provided by r 4.04 of the Supreme Court (Miscellaneous Civil Proceedings) Rules 2018 (‘MCP Rules’). Accordingly, the applicant also requires an extension of time to appeal…

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: [2024] VSC 541
Decision Date: 5 September 2024

CaseChat Overview and Summary

De Luca v De Luca involved a dispute between the parties regarding an application for leave to appeal against a decision made by the Victorian Civil and Administrative Tribunal (VCAT). The application was brought before the Supreme Court by the respondent, who sought the dismissal of the appeal pursuant to rule 4.08(8) of the Supreme Court (Miscellaneous Civil Proceedings) Rules 2018. Additionally, the respondent applied for summary judgment under sections 62 and 63 of the Civil Procedure Act 2010 (Vic) and requested costs on an indemnity basis. The applicant was ordered to pay the respondent's costs on a standard basis.

The court was tasked with determining whether the appeal should be dismissed and if the respondent was entitled to summary judgment. Furthermore, the court had to consider the appropriate costs order to be made in light of the application's outcome. The primary legal issues revolved around the procedural correctness of the appeal, the merits of the respondent's summary judgment application, and the appropriate allocation of costs between the parties.

The court examined the application for leave to appeal and found it to be without merit, leading to the dismissal of the appeal. Regarding the summary judgment application, the court concluded that the respondent was entitled to the requested relief as the applicant's defence had no reasonable prospect of success. Finally, the court assessed the costs applications and ordered that the applicant pay the respondent's costs on a standard basis, considering the overall conduct of the proceedings and the merits of the applications.

The court's final orders were the dismissal of the appeal, the grant of summary judgment in favour of the respondent, and the imposition of costs on the applicant on a standard basis. The decision highlights the importance of procedural compliance in appellate matters and the potential for summary judgment in cases where the defence is demonstrably weak.

Orders