Djime v Le - [2016] VSC 48

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST

S CI 2015 02168

HAMADOU DJIME	Plaintiff
v
MATTHEW LE	Defendant

---

JUDGE:	ZAMMIT J
WHERE HELD:	Melbourne
DATE OF HEARING:	8 February 2016
DATE OF JUDGMENT:	19 February 2016
CASE MAY BE CITED AS:	Djime v Le
MEDIUM NEUTRAL CITATION:	[2016] VSC 48

---

PRACTICE AND PROCEDURE — Appeal from a decision of an Associate Justice — Whether error in granting summary judgment — No real as opposed to fanciful prospect of success — Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd [2013] VSCA 158 applied — Appeal dismissed.

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	In person
For the Defendant	Ms K Argiropoulos	Counsel for Public Prosecutions

HER HONOUR:

The appellant was found guilty in the Magistrates’ Court, Sunshine, of one charge of resisting police and one charge of assault. He lodged an appeal against conviction to the County Court, but subsequently abandoned the appeal. The appellant also filed an originating motion seeking judicial review of the decision by the Magistrates’ Court.

The respondent applied for summary dismissal of the judicial review proceeding. The summary judgment application filed by the respondent on 23 October 2015 was supported by an affidavit sworn by Adam Casselton 17 September 2015 (‘Casselton affidavit’). The application for summary dismissal was heard before the Associate Justice on 2 December 2015. The applicant did not attend the hearing. The Associate Justice dismissed the proceeding pursuant to s 63 of the Civil Procedure Act 2010 (Vic) (‘the CPA’) and provided a statement of the reasons.

The Supreme Court (General Civil Procedure) Rules 2015 (‘the Rules’) r 77.06.9 states that on appeal, a Judge of the Supreme Court shall have all the powers of the Court constituted by an Associate Justice. In the appeal, the Judge shall have power to receive further evidence upon questions of fact and draw inferences of fact.

Rule 77.06.9 may allow for the Court to receive further evidence about matters which might support the grant of leave to appeal on a question of law.

Nonetheless, an appeal is not a re-hearing de novo.[1] To succeed, the applicant must show that the Associate Justice committed an error of law.[2]
[1]Oswal v Carson [2013] VSC 355 [11].
[2]Hau v Westpac [2014] VSC 606,[37] and [38]; Shreuders v Grandiflora Nominees Pty Ltd [2014] VSC 310; Oswal v Carson [2013] VSC 355; Lazarevic v Victoria Police [2015] VSC 13 [4].

The applicant filed a Notice of Appeal against the Order of the Associate Justice on 11 December 2015 (the 11 December 2015 Notice of Appeal). The respondent submits that no error of law can be established.

Based on the applicant’s 11 December 2015 Notice of Appeal and the oral submissions, the applicant appears to allege that the Associate Justice’s decision and therefore Order was erroneous for the following reasons:

(a) the decision relied on false documents submitted by Mr A Castle, 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.

Continue reading Djime v Le

Details

AGLC: Djime v Le [2016] VSC 48
Case: [2016] VSC 48
Decision Date: 19 February 2016

CaseChat Overview and Summary

In the matter of Djime v Le, the Court of Appeal was tasked with reviewing an Associate Justice's decision granting summary judgment in favour of the defendant. The nature of the dispute involved a claim for damages related to an alleged breach of contract. The primary issue before the Court was whether the Associate Justice erred in concluding that there was no real prospect of the plaintiff succeeding in the case. The appeal was brought forth on the grounds that the Associate Justice had overlooked certain evidence and misapplied the relevant legal principles.

The court addressed the appeal by examining the applicable legal standards for granting summary judgment, particularly focusing on the requirement that there must be no real prospect of the plaintiff succeeding on the merits of the case. The court referenced the decision in Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd [2013] VSCA 158, which established that a summary judgment can only be granted if the plaintiff's case is utterly hopeless. The court meticulously reviewed the evidence presented and the arguments made by both parties, assessing whether the plaintiff had a real prospect of success based on the material before the court. Ultimately, the Court of Appeal found that the Associate Justice had correctly applied the law and did not err in granting summary judgment.

Following its analysis, the court concluded that the Associate Justice's decision was sound and there was no real prospect of the plaintiff succeeding. The appeal was dismissed, affirming the lower court's ruling in favour of the defendant. The court's decision underscored the importance of strictly adhering to the legal standards for summary judgment and the necessity of thoroughly considering all evidence and arguments before reaching a conclusion.

Orders