Eimany v Ruyton Girls' School
[2023] VSC 573
•27 September 2023
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S ECI 2021 03437
| ARASH (TOM) EIMANY | Plaintiff (Appellant) |
| v | |
| RUYTON GIRLS’ SCHOOL | Defendant (Respondent) |
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JUDGE: | Ginnane J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 16 March 2023 |
DATE OF JUDGMENT: | 27 September 2023 |
CASE MAY BE CITED AS: | Eimany v Ruyton Girls’ School |
MEDIUM NEUTRAL CITATION: | [2023] VSC 573 |
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APPEAL – Associate Justice’s orders – School fees debt claim – Dismissal of application for leave to appeal Magistrates’ Court orders when plaintiff did not participate in hearing – Application for rehearing refused – Refusal of rehearing application an interlocutory order Appeal to Supreme Court out of time – Associate Justice refusing to order that appeal continue as an originating motion seeking judicial review – Application for leave to bring the appeal dismissed – Order for summary dismissal of the proceeding – No error by Associate Justice – Appeal dismissed – Magistrates’ Court Act 1989 ss 109, 110 – Supreme Court (General Civil Procedure) Rules 2015 rr 2.02, 4.08, 4.09; Magistrates’ Court General Civil Procedure Rules 2020 r 46.08.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff (Appellant) | Self-represented | |
| For the Defendant (Respondent) | Mr S Lowry | Michael Sandor & Associates |
HIS HONOUR:
On 9 June 2021, Ruyton Girls’ School (‘the School’) obtained judgment in the Magistrates’ Court against Dr Arash (Tom) Eimany for school fees of $31,474.53 owing for the education of his two children. He was also ordered to pay interest and costs. He did not appear at, or participate in, that hearing and on 3 August 2021 unsuccessfully sought a rehearing order. He sought to appeal the Magistrates’ Court orders of both those dates. An Associate Justice dismissed his application for leave to appeal the Magistrates’ Court orders and also granted the School’s application for summary dismissal of his proceeding. He now appeals the Associate Justice’s orders.
The Associate Justice had to decide:
(a) Whether Dr Eimany had established that his failure to commence his appeal against the Magistrates’ Court orders of 9 June 2021 within the 30 day time limit was due to exceptional circumstances as s 109(5) of the Magistrates’ Court Act 1989 requires.
(b) Whether Dr Eimany had a right to appeal the Magistrates’ Court order of 3 August 2021 refusing his application under s 110 of the Magistrates’ Court Act for a rehearing of the proceeding.
Background
Dr Eimany and his former wife share responsibility for two children, who were enrolled at the School.
Magistrates’ Court Proceedings
On 31 August 2020, the School commenced proceedings in the Magistrates’ Court against Dr Eimany for outstanding school fees incurred between 1 September 2019 and 10 August 2020 in the sum of $31,474.53 plus interest.
In his Defence, Dr Eimany stated:
1. Defendant is in agreeance to pay half his children’s school fees.
He also contended in his defence that he had requested proof of payment of the other half of the School fees, to ensure that his former wife and the School were not conspiring to burden him with greater than half of his share of school fees.
Dr Eimany failed to appear at, or participate in, the Magistrates’ Court on 9 June 2021, when the case was listed for hearing. Notice of the hearing had been previously sent to the parties and, as the hearing was during a Covid restrictions period, they were given links to enable them to participate in a virtual hearing. In response to Dr Eimany’s non-appearance, a court officer sent him an email at 10.26am, copying the School’s then-counsel, advising that the case had been assigned to a court room at the Magistrates’ Court, providing him with teleconferencing details and informing him that the hearing was to re-commence at 10:30am.
The Associate Justice described what happened at the hearing:[1]
[1]Eimany v Ruyton Girls’ School [2022] VSC 420, [23] (Matthews AsJ) (‘Associate Justice’s reasons’).
The Appellant again failed to appear at the rescheduled hearing and, consequently, the hearing proceeded in his absence. After hearing evidence from an employee of the Respondent regarding the debt owed, [the Magistrate], in reasons delivered ex tempore, found that:
(a)the Appellant was aware of the hearing but nevertheless chose not to appear;
(b)the Appellant was aware of, and accepted liability for, the whole of the debt claimed by the Respondent (as conceded by paragraph 1 of his Notice of Defence);
(c)the Respondent raised numerous matters in his notice of defence which were not germane to the claim made by the Respondent in the proceeding;
(d)on the evidence before her, including the documents tendered into evidence and the evidence given by the Respondent’s witnesses, the magistrate was satisfied that the totality of the debt claimed by the Respondent that was owed by the Appellant. Judgment was given for the Respondent; and
(e)costs were to be awarded against the Appellant.
Dr Eimany’s rehearing application
Dr Eimany filed a re-hearing application in the Magistrates’ Court, which was heard by a different Magistrate on 3 August 2021. His explanation for not appearing at the 9 June 2021 hearing was that ‘the Webex meeting invite link was dead and he had network problems and he was 20 to 30 minutes late in logging in’. He questioned whether that was due to storms or overwhelming of networks due to the fourth Covid lockdown.[2] His application was dismissed.
[2]Ibid [27].
The Associate Justice described the proceedings on the re-hearing application on 3 August 2021 as follows:[3]
When the Magistrate suggested to the Appellant that the material demonstrated that he was in agreement to pay half of his children’s school fees, the Appellant asserted that he had been saddled with the majority of the fees. The Appellant also made a number of other scandalous allegations, many of which have been a recurring theme in this proceeding and to which I will return when analysing the Appellant’s grounds of appeal, to the extent it is necessary to do so.
The Respondent’s then-counsel contended that any debt owed and payment made by the Appellant’s former spouse was irrelevant to the Appellant’s debt. The Respondent’s then-counsel proceeded to take the Magistrate through a spreadsheet tendered by the Respondent which set out, in what appears to be an itemised format, the debt owed by the Appellant. When asked about the amounts contained in the spreadsheet, the Appellant complained that the Respondent has hitherto refused to provide certain receipts, contended that there had been a breach of procedure, and asserted that it was incumbent on the Respondent to provide him with evidence of his former spouse’s payments as a prerequisite to the Appellant satisfying the debt owed. Many of these arguments made by the Appellant are reiterated in his material filed in this proceeding, which I will return to later in these reasons.
In reasons delivered ex tempore, the Magistrate concluded that he had ‘real doubts’ regarding the Appellant’s failure to connect to the hearing before Magistrate Hoare on 9 June 2021. Crucially, the Magistrate also found that the Appellant was unable to establish a defence on the merits. In arriving at this conclusion, the Magistrate also dismissed the arguments raised by the Appellant regarding his former spouse’s share of the school fees, noting that the records showed that the Appellant’s former spouse had paid the relevant instalments.
[3]Ibid [30]-[32].
Dr Eimany’s Supreme Court proceeding
On 31 August 2021, Dr Eimany sought to appeal the Magistrates’ Court orders of 9 June and 3 August 2021 to this Court pursuant to s 109 of the Magistrates’ Court Act, which provides for appeals on questions of law from final orders. Dr Eimany’s appeal against the order of 9 June 2021 was six weeks out of time, so he required leave under s 109(5) to commence it.
Dr Eimany’s Notice of Appeal contained three questions of law:[4]
[4]Appellant’s Notice of Appeal dated 31 August 2021.
1. Whether the learned judge ignored relevant consideration of:
a. School’s conduct had caused emotional harm to the Appellant’s children and damages to the Appellant.
b. School had breached their duty of care and contractual agreement by refusing to answer questions about the Appellant’s daughter.
c. School tried to mislead the Appellant by quoting a non-existent legislation.
d. School had made misleading statements in their affidavit of documents.
e. Appellant had been denied procedural fairness in the original hearing by:
i. School had refused to produce documents as per the subpoena issued to them without giving a valid reason.
ii. ANZ bank had misled the court that they had no records to produce after the receipt of a subpoena for the school’s bank records.
iii. The Registrar had proceeded to arrange the final hearing in breach of Order 42A.09 of Magistrates’ Court General Civil Procedure Rules 2020 without telling the Appellants why.
iv. The Appellant was sent the link to the hearing just 4 minutes prior to the hearing whilst waiting for the time and place of the hearing for the objection to the subpoena.
v. The Appellant was unable to connect to the hearing due to network problems presumably due to unprecedented storms.
2. Whether the learned judge acted upon the wrong principles that:
a. A valid contract existed between the Appellant and the school due to consent orders between the Appellant and his ex.
b. Failing to apply [a] Jones v Dunkel inference to points 1 (b)-(e)(i) above.
c. The school had the right to apply discounts to the other half of the fees and force the Appellant to pay the full amount of his half of the fees.
3. The learned judge gave inadequate reasons for:
a. Why the Appellant had no chance of success
b. Points 2 (a)–(c) above
The Associate Justice’s findings
On 6 May 2022, an Associate Justice heard Dr Eimany’s applications, including for leave to appeal. In dealing with his application for leave to appeal the orders of 9 June 2021, the Associate Justice found that Dr Eimany had failed to demonstrate any exceptional circumstances to explain his delay in filing the Notice of Appeal nor had he addressed any of the criteria discussed in Mako‘ochieng v Kirk[5] dealing with exceptional circumstances.
[5][2017] VSC 459 (‘Mako’ochieng’).
The Associate Justice accepted the School’s submissions that Dr Eimany had failed to take any meaningful steps to notify the Court on 9 June 2021 of any issue affecting his ability to participate in the proceeding. She did not accept that he only received the teleconferencing details minutes before the hearing, nor that ‘unprecedented storms’ prevented him from participating in the hearing.[6]
[6]Associate Justice’s reason [100].
The Associate Justice considered that Dr Eimany had devoted substantial time and energy to ‘arguing the toss’ about whether leave was required to challenge the 9 June orders. His written material contained numerous scandalous assertions which alleged, absent any evidence or discernible basis of fact, that the School had deliberately sought to deny him an opportunity to adequately respond to the grounds raised in support of the dismissal application, deprive him of procedural fairness and take him by surprise. The Associate Justice rejected these allegations.[7] She concluded that Dr Eimany’s application for leave to appeal the 9 June orders must fail. She stated that even if he had established exceptional circumstances, she would still have refused him leave to appeal in the exercise of her discretion taking into account that his appeal had no merit.[8]
[7]Ibid [69].
[8]Ibid [78].
In respect of the 3 August 2021 order refusing a rehearing, the Associate Justice found that the judgment of Batt J in Kinex v Exploration Pty Ltd v Tasco Pty Ltd[9] established that an order made pursuant to s 110 of the Magistrates’ Court Act refusing an application for rehearing was not a final order and therefore he had no right of appeal under s 109 of that Act. Therefore, his appeal was not competent. The Associate Justice upheld the Magistrate’s decision on the rehearing application. Her Honour stated:[10]
[9][1995] 2 VR 318 (‘Kinex’).
[10]Associate Justice’s reasons [113]-[116].
As the transcript of hearing makes abundantly clear, Magistrate Foster made a concerted effort, and afforded the Appellant every opportunity, to establish whether or not the Appellant had a ‘defence on the merits’. Upon hearing from the Respondent’s then-counsel, the Magistrate observed that the court documents (including the Appellant’s defence) indicated that the Appellant had agreed to pay his share of the fees. This position was acknowledged by the Appellant, who then expressed concern that he had been saddled with the ‘lion’s share of the fees’. The Appellant then proceeded to make several of the submissions that he has aired in this proceeding, following which the Magistrate said to the Appellant:
I’ll give you one final chance. You need to establish a defence on the merits. Your defence at the moment says you’re entitled to pay or required to pay only a half share of those fees. ... In my view there is merit in what [the Respondent’s then-counsel] says is that there is no relevance in relation to what your ex-wife has actually paid. The real issue has been billed to those fees [sic]. ... So I will give you one final chance as to what your defence on the merits is to this case.
In response, the Appellant made several complaints about the Respondent’s conduct, but failed to avail himself of the opportunity afforded to him by Magistrate Foster, who then proceeded to deliver reasons for refusing the application. At the outset of his reasons the Magistrate expressed some scepticism as to the merit of the Appellant’s reasons for failing to appear at the hearing on 9 June 2021. The Magistrate then, quite appropriately, proceeded to address the question of whether or not the Appellant had established a ‘defence on the merits’ (not, as the Appellant seems to suggest, whether the Appellant had ‘no chance of success’). In doing so, the Magistrate proceeded on the correct footing.
The Magistrate then referred to a spreadsheet tendered by the Respondent which the Magistrate considered to show, in ‘some precise detail’, the fees charged to and owed by the Appellant. The Magistrate went on to observe:
it is abundantly clear on that business record that the ex-wife has been paying that off and that Mr Eimany has not paid any amounts towards those fees and no doubt that’s the cause for the $400 late fee.
The Magistrate considered the evidence and, in turn, refused to grant the Appellant’s application for a re-hearing. This decision was made on the following bases:
The circumstances where Mr Eimany has already admitted in the defence that he is liable to pay 50% of the share, it’s not relevant in my view for Mr Eimany to be searching for materials, evidence in payments being made by his ex-wife’s receipts and all that in my view. Even if it wasn’t good. For those reasons I will refuse leave required for rehearing and the application is otherwise refused.
The Associate Justice did not accept that Dr Eimany had been denied procedural fairness. She also found that the Magistrate had given sufficient reasons for his decision.[11]
[11]Ibid [117].
The Associate Justice then dealt with the School’s application that Dr Eimany’s proceeding be summarily dismissed.
Dr Eimany submitted that the School had provided no evidence in support of their summary dismissal application and no evidence that the signatures on the School’s Acceptance of Offer of enrolment form were genuine. The Associate Justice did not make a determination about the genuineness of those signatures. The School, in written submissions,[12] argued that the Associate Justice applied the correct principles in dismissing the proceeding, namely the principles set out in Mako’ochieng:[13]
In order to be granted leave to appeal, the applicant must establish that his failure to file an appeal with the prescribed 30 day period was due to exceptional circumstances. However, even where exceptional circumstances are established, the court has unfettered residual discretion as to whether leave to appeal should be granted.
[12]Respondent’s written submissions [3.2].
[13]Mako’ochieng [8].
The School also argued that the Associate Justice correctly applied the principles in Kinex[14] in determining that Dr Eimany’s appeal against the orders of 3 August 2021 dismissing the rehearing application was incompetent as they were not final orders.
[14][1995] 2 VR 318.
The Associate Justice’s findings
The Associate Justice concluded that Dr Eimany’s proceeding was frivolous, vexatious, or otherwise an abuse of process and should be dismissed. She found that:[15]
The appellant has attempted to use this proceeding as a vehicle for which to air his personal grievances and animosities. I do not propose to spell out the precise manner or all of the allegations aired by the appellant, because to do so would simply further the appellant’s impermissible and collateral purpose.
[15]Associate Justice’s reasons [126].
The Associate Justice stated that Dr Eimany had made scandalous allegations about the School’s officers. She said that his material was replete with allegations of forgery, fraud and conspiracy, which had been made without any evidentiary basis[16] and that his case had failed to raise any allegation that had any prospects of changing his liability to the School. Rather he had continually pursued vexatious arguments which appeared to have no basis or evidence.[17] The Associate Justice concluded that Dr Eimany had pursued his appeal for the ulterior motive of publicly vilifying the School and his former spouse.[18]
[16]Ibid [130].
[17]Ibid [131].
[18]Ibid [132].
Her Honour ordered that Dr Eimany’s application for leave to appeal be dismissed. The School’s application for summary dismissal was granted and the appeal was dismissed pursuant to rr 58.10(8) and 58.10(9).
Dr Eimany’s appeal against the decision of the Associate Justice
Dr Eimany’s Amended Notice of Appeal contains 28 grounds against the decision of the Associate Justice. During the hearing, he stated that his main issue was whether the Associate Justice erred in denying him procedural fairness as she did not change the proceedings to a judicial review hearing under O.56 of the Supreme Court (General Civil Procedure) Rules 2015 (‘the Rules’).[19] However, Dr Eimany did not abandon the remaining grounds, so I will refer to all of them for the sake of completeness. Rather than considering the grounds in numerical order, I will group them together in accordance with the issues that they raise.
[19]Transcript of Proceedings, Eimany v Ruyton Girls’ School (Supreme Court of Victoria, S ECI 2021 03437, Ginnane J, 16 March 2023) 17 and 18 (‘T’).
In order to succeed in his appeal, Dr Eimany must establish error in the Associate Justice’s orders and determination.[20]
[20]R 77.06 ; Oswal v Carson [2013] VSC 355 [11].
In summary of the reasons I give below, I consider that the appeal grounds establish no error by the Associate Justice. I consider that the evidence shows that this was a simple contract case in which Dr Eimany admitted that he was obliged to pay half the School fees and in which the School proved that he had breached that legal obligation by failing to pay the amount that it claimed.
Ground 1: The Associate Justice denied Dr Eimany procedural fairness
The first ground is a procedural fairness ground. It includes the contention that the Associate Justice denied Dr Eimany procedural fairness by failing to look at, and make a determination about, the authenticity of the signatures on the School’s ‘Acceptance of Offer’ forms which confirmed the children’s enrolment, despite indicating at the hearing that she would and by dismissing the case without ordering or offering to order an expert hand writer’s opinion.
Ground 1 also relied on the Associate Justice’s refusal to allow the proceeding to continue as, or convert the proceeding to, a judicial review proceeding and her application of the higher threshold of ‘unfettered discretion’ in deciding his application for leave to appeal. Finally, Dr Eimany contended that instead of clarifying issues, the Associate Justice made defamatory findings about his coherence and comprehensibility.
I will deal first with the issue of the Associate Justice’s refusal to convert the proceeding to a judicial review application, or to use the words of the Rules, to order that it so continue.[21] The other key contentions in ground 1 are considered in conjunction with other grounds below.
[21]Rule 4.07.
Dr Eimany sought an order converting the proceeding to a judicial review application on the hearing day of 6 May 2022. The hearing commenced after the luncheon adjournment, but beforehand Dr Eimany sent two emails to the Court at 12:00pm and 1:51pm attaching proposed orders in which he sought leave to amend or transform the proceeding from an appeal under O.58 to a judicial review application under O.56. He relied on Batt J’s statement in Kinex that:[22]
In the High Court and in the Full Court of this court the rigour of the rule may be mitigated by the favourable exercise of the court's power to grant special leave to appeal or leave to appeal, as the case may be. That mitigating power does not exist in respect of appeals from interlocutory orders of the Magistrates' Court of Victoria, but the rigour of the rule can be circumvented by the obtaining in an appropriate case of judicial review under O.56 of the Rules.
[22][1995] 2 VR 318, 321. He also relied on Phoenix International Group Pty Ltd v Resources Combined No 2 Pty Ltd [2009] VSC 425, [61] and J-Corp Pty Ltd (t/as Perceptions) v Peter Ingrams [1988] NTSC 14.
Dr Eimany contended that if the proceeding was so transformed, he would not need an extension of time as O.56 provided for 60 days in which to commence a judicial review proceeding as the Court order would have the effect that his originating motion for judicial review would be taken as having been commenced on the date that his appeal was filed.[23]
[23]Dr Eimany relied on r 4.07 for this argument.
After standing the matter down to consider this application, the Associate Justice refused it for reasons that she explained in the following passage of her judgment:[24]
Upon resumption of the hearing, I informed the parties that it would be highly unusual to convert this appeal in the manner proposed by the Appellant and that, as such, I was unwilling to amend the present appeal from an Order 58 proceeding to one under Order 56. In arriving at this view I had regard to a number of factors, including but not limited to, the fact that Order 56 proceedings are different in both form and substance from those commenced under s 109 of the Magistrates’ Court Act.
[24]Associate Justice’s reasons [40].
The Associate Justice stood the case down again so that Dr Eimany could decide the course he wished to take. When the hearing resumed he explained his intention as follows:[25]
HER HONOUR: Alright then Mr Eimany, how do you wish to proceed?
DR EIMANY: I would like to proceed with my application for appeal, restricting and narrowing it down to just two points.
[25]Transcript of Proceedings, Eimany v Ruyton Girls’ School (Supreme Court of Victoria, S ECI 2021 03437, Associate Justice, 6 May 2022), 25.
In this Court, Dr Eimany submitted that r 2.02 was mandatory and required that the Associate Justice grant his application under r 4.07 to ‘convert’ his application to an originating motion seeking judicial revie. Rule 2.02 provides that:
The Court shall not wholly set aside any proceeding or the originating process by which the proceeding was commenced on the ground that the proceeding was commenced by the wrong process.
The term ‘proceeding’ is defined by O.1.13 as:
any matter in the Court commenced by writ or originating motion or as otherwise provided by or under any Act or these Rules.
Rule 4.07 provides:
(1) Where a proceeding in which there is a defendant is commenced by originating motion, but ought by or under any Act or these Rules to have been commenced by writ, or might in the opinion of the Court more conveniently continue as if commenced by writ—
(a) the Court may order that the proceeding continue as if it had been commenced by writ and may, in particular, order that any affidavits already filed in the proceeding shall stand as pleadings, with or without liberty to any of the parties to add thereto or to apply for particulars thereof or that pleadings be served between the parties, and that the parties have discovery of each other; and
(b) by virtue of that order, the proceeding shall be taken to have been duly commenced for all purposes on the day the originating motion was filed.
(2) Any reference in these Rules to a proceeding commenced by writ shall, unless the context otherwise requires, be taken to include a reference to a proceeding in respect of which an order has been made under paragraph (1).
Dr Eimany submitted that the operation of r 2.02 was not limited to proceedings in which the initial application had been commenced within time. He argued that the Associate Justice was wrong to state that it would be unusual to change the nature of the proceeding from an appeal under O.58 to an O.56 proceeding because r 4.07(1)(a) allowed for an originating motion and its affidavits to be changed to a writ and pleadings. He submitted that the Associate Justice was also wrong in stating that such a change would require Dr Eimany to obtain an extension of time in which to commence an O.56 proceeding as r 4.07(1)(b) allowed for the proceeding to ‘be taken to have been duly commenced for all purposes on the day the originating motion was filed’.
The School submitted that r 2.02 applied when a litigant had used the wrong form to commence proceedings, whereas Dr Eimany’s application sought to commence an entirely new and different proceeding. He bore the onus of proving that it was appropriate to convert his proceeding from an appeal under O.58 of the Rules to an O.56 proceeding. In any event, the Associate Justice could not have granted the conversion application on the hearing day because Dr Eimany first would have required an extension of time to commence the proceeding, which could only have been granted after he had provided details of his proposed judicial review application. He had not done that, rather he informed the Associate Justice that he wished to continue with his appeal.
Dr Eimany had not established that he had been denied procedural fairness before the Associate Justice as he was provided with time to consider what course to follow and the case was twice stood down. The Associate Justice’s reasons were adequate and explained her path of reasoning.
Analysis of ground 1
Dr Eimany’s ground 1 established no error by the Associate Justice in refusing to allow his appeal to continue as if had been commenced as, to use the words of the rules, or be ‘converted to’, an originating motion seeking judicial review. The Associate Justice’s decision to refuse to ‘convert’ the application was about a matter of practice and procedure. Dr Eimany did not establish that her Honour erred in her decision on this issue.
Rules 2.02 and 4.07 do not support Dr Eimany’s case. Rule 4.07 provides for a writ to continue as an originating motion or vice versa and not the conversion of an application for leave to appeal to an originating motion. Dr Eimany did not choose the wrong process, rather he elected to bring an appeal, but did not commence it within time.
The appeal against the 9 June orders was out of time and the appeal against the 3 August order refusing a rehearing was incompetent. Judicial review proceedings are not to be used to overcome the time limits of statutory appeals. Putting aside a case of jurisdictional error, a litigant cannot seek judicial review where it is open to them to bring an appeal, for instance an appeal under s 109 of the Magistrates Court Act, unless there are exceptional circumstances.[26]
[26] Kuek v Victoria Legal Aid [2001] VSCA 80, [16].
In any event, Dr Eimany made his application to allow the proceeding to continue as an originating motion on the hearing day, ten months after the Magistrates’ Court orders and he provided no details of his proposed judicial review application. If Dr Eimany was to have pursued the application, the hearing would have had to be adjourned while he prepared the amended application and the School given an opportunity to consider it. Delay and increased costs would have resulted which would have been an outcome contrary to the overarching purpose of the Civil Procedure Act 2010.
No denial of procedural fairness occurred. Dr Eimany was provided with a reasonable opportunity to present his case and make his application. The fact that he was unsuccessful does not mean that he was denied procedural fairness.
Inadequate reasons - grounds 18 to 20
I will consider at this point grounds 18 to 20, which contend that the Associate Justice gave inadequate reasons for refusing to convert the appeal to an originating motion seeking judicial review and by ignoring Dr Eimany’s submissions. This ground also challenges the adequacy of the Associate Justice’s reasons for concluding that the proceedings were vexatious, frivolous or for improper purpose. Dr Eimany relied on Nettle JA’s description in Hunter v Transport Accident Commission[27] of the requirements of adequate reasons.
[27](2005) 43 MVR 130; [2005] VSCA 1, [21].
Analysis of grounds 18-20
I consider that the Associate Justice gave adequate reasons for refusing to ‘convert’ the proceeding and allowing it to continue as an originating motion seeking judicial review as Dr Eimany sought. Her Honour explained her reasoning in her passages which I have previously set out.[28] It involved the following steps. She considered that the conversion application was highly unusual and that an O.56 application was different in form and substance from an appeal. As I have stated, if the Associate Justice had granted the application, the proceeding would have had to be adjourned for Dr Eimany to prepare the judicial review application and to permit the School to respond.
[28]Associate Justice’s reasons [40]-[41].
The Associate Justice also explained her path of reasoning for her conclusion that the proceedings were vexatious, frivolous of for an improper purpose in the 7 paragraphs of her judgment under the heading ‘Abuse of Process’.[29] She described a number of features of Dr Eimany’s actions that made it apparent that he:
‘while clearly aggrieved by the outcome in the Magistrates’ Court Proceeding, has pursued this appeal for the ulterior motive of publicly vilifying the Respondent and his former spouse. As such, the appeal is frivolous, vexatious or otherwise an abuse of process and should be dismissed.[30]
[29]Ibid [126]-[132].
[30]Ibid [132].
She also noted that the Magistrate’s dismissal of Dr Eimany’s rehearing application had an evidentiary basis in the School’s spreadsheet showing payment of school fees. Her Honour considered that the Magistrate’s findings were reasonably open to him.[31]
[31]Ibid [117].
Grounds 1 and 18-20 are not established.
Grounds 4 and 7: Did a valid contract exist?
Ground 4 contends that the Associate Justice erred in accepting as fact that a valid contract existed between the parties. Dr Eimany maintained that the School failed to properly particularise the basis of the contract which it claimed existed.
Ground 4 raised issues about the School’s Acceptance of Offer forms and the signatures appearing on them, which purport to be of both parents. Dr Eimany’s grounds questioned whether there was any evidence that the signatures on the Acceptance of Offer forms were genuine or known to be signed by him or were witnessed. Also, whether a contract void ab initio could be affirmed, ratified or incorporated by the verbal acceptance of a party labouring under the misapprehension that the contract was valid and whether there was any contract about school fees between him and the School as distinct from between him and his former wife. The School tendered ‘Acceptance of Offer’ forms which appeared to be signed by Dr Eimany. These forms were said to be the basis of his contractual relationship with the School. He contended that he did not sign them and that his purported signatures on them were fraudulently signed.
Dr Eimany also raised the question of whether his agreement to pay half the fees made when labouring under the misapprehension that a valid contract existed, could justify the Magistrate refusing to accept that the terms of the contract included his right to see the receipts issued for the payment of the other half of the school fees.
As I have noted as part of ground 1, Dr Eimany argued that the Associate Justice denied him procedural fairness by failing to consider the authenticity of the signatures on the Acceptance of Offer forms and not appointing a hand writing expert. He contended that it was apparent just by looking at his signatures on the forms that they were not genuine.
Ground 7 raised similar contentions, but added Dr Eimany’s contention that the Associate Justice erred in placing significance on him not alleging in his defence that his signature was a forgery. He said that he was only provided with the appeal book, including the Acceptance of Offer forms, a short time before the hearing and could not have raised this issue in his notice of defence. The School was trying to catch him by surprise.
The School submitted that grounds 4 and 7 did not disclose any arguable error by the Associate Justice. The Associate Justice’s findings
The Associate Justice’s findings
The Associate Justice did not accept that Dr Eimany had established that his signature had been forged on the School’s Acceptance of Offer forms. Her Honour stated: [32]
As I’ve been at pains to stress, the Magistrates’ Court proceeding concerned a claim for a debt owed by the Appellant, the liability for which has been conceded in the Appellant’s defence.
[32]Associate Justice’s reasons [106].
Her Honour also noted: [33]
Whether or not there is a discount applied by the respondent with respect of the appellant’s former spouse’s share of the fees is of no moment given this issue has no relationship with the appellant’s liability to the respondent.
[33]Ibid [107].
The Associate Justice accurately stated that it is not usually the Court’s responsibility to order that an expert report be prepared and that if Dr Eimany had wished to rely on such a report, he should have obtained it himself.
Only, in advance of this present appeal, did Dr Eimany obtain such a report, but that was not available to the Magistrate or the Associate Justice. On 1 December 2022, at an interlocutory hearing prior to this appeal, I rejected the tender of that report in this appeal for the reasons that I then gave.
The Associate Justice also stated:[34]
For completeness, I consider no injustice would occasion if the appeal were to be dismissed. The claim made in the Magistrates’ Court proceeding was in respect of school fees owed by the appellant, who had accepted liability for those fees. By dismissing the appeal, nothing will change and the appellant will remain indebted to the respondent. For this reason the appeal is to be dismissed.
[34]Ibid [119].
Analysis of grounds 4 and 7
In my opinion, the authenticity of the signature on the Acceptance of Offer forms is a side issue in this proceeding. This is a simple contract case where Dr Eimany accepted that he had agreed to pay half of his children’s school fees. He accepted that in his defence and in oral submissions in the hearing in this Court[35] and in his written submissions filed for his appeal.
[35]T 10.
Only after Dr Eimany became suspicious that his former wife might be benefiting from discounts, does it appear that he commenced seeking proof of her payment of school fees.[36] But as the Associate Justice stated:[37]
The fact of the matter is that the Appellant’s liability to pay the fees is not contingent, or is in any way conditional, upon whether or not his former spouse has or has not paid her share of the fees. In fact, the evidence is that the Appellant and his former spouse were each invoiced separately for their individual shares of the school fees. At the very least, the invoices issued to the Appellant for his share of the school fees were before the Magistrate on 9 June 2021.
[36]Dr Eimany’s submissions [2]-[3].
[37]Associate Justice’s reasons [92].
There was evidence before the Court that Dr Eimany’s former wife had paid half of the school fees.[38]
[38]Ibid [32].
Dr Eimany did not allege in his defence that his signature on the ‘Acceptance of Offer’ forms had been forged and he did not provide any evidence to support such an allegation at the hearing. Rather, he conceded that he owed the School half of the children’s school fees. He also acknowledged that a contract existed between him and the School as he was willing to pay the outstanding amount owed by him once he received confirmation that his former wife had paid half of the school fees.
As mentioned, Dr Eimany said that he assumed that the Associate Justice would organise a handwriting expert to analyse the signature. The Associate Justice explained that his assumption was incorrect and that he should have organized a report if he wished to rely on such evidence. The Associate Justice gave adequate reasons for her refusal to order the quite unusual course of the Court engaging a handwriting expert to consider the authenticity of the signatures on the Acceptance of Offer forms.
Her Honour did not err in finding that a valid contract to pay half of the school fees existed between Dr Eimany and the School.
Grounds 4 and 7 are not established.
Ground 22: Was the Associate Justice’s decision plainly unreasonable or unjust?
Dr Eimany’s ground 22 is connected to grounds 4 and 7 and contend that the Associate Justice’s decision was plainly unreasonable or unjust because the signatures on the Acceptance of Offer form were obviously non-genuine.
Analysis of ground 22
The Associate Justice was hearing appeals or applications to appeal from the Magistrates’ Court’s orders. At the Magistrates’ Court hearing, Dr Eimany did not rely on handwriting evidence. In his defence he accepted that he had agreed to pay half of the school fees and did not allege fraud or that his signature had been signed by his former wife. He could have given evidence or called expert evidence about the authenticity of the signatures if he had wished to do so or, if necessary, sought an adjournment to do so.
The Associate Justice stated:[39]
Notwithstanding that the Appellant has otherwise failed to identify a question of law, the questions posed by the Appellant are not reasonably arguable. As best I can comprehend, question 2(a) concerns an allegation that his signature on the Acceptance of Offer was forged. This issue is a recurring theme throughout the Appellant’s written material and was raised by him at the hearing before Magistrate Foster and again before me. Despite the gravity of the allegation made by the Appellant, he has failed to provide sufficient evidence to support his assertion that his signature was forged. The Appellant has filed two documents which appear to bear his signature, being the Acceptance of Offer and various documents filed in a proceeding before the Family Court of Australia, including an unsealed copy of consent orders agreed between the Appellant and his former spouse in that proceeding. Amongst other things, the orders authorised the Appellant’s former spouse to execute, on behalf of the Appellant, all documentation to confirm the enrolment and attendance of their children at the Respondent school. The orders also expressly state that this authorisation is conferred ‘without the need for the Father’s signature’, and that, until further order, the daughters are to remain enrolled at the Respondent school. Put simply, the evidence relied on by the Appellant fails to support the serious allegations made by him, and even so these issues are completely irrelevant to the appeal brought by the Appellant. The Appellant’s submissions in this regard were barely comprehensible. If he was challenging that there was an agreement or contract between he and the Respondent for the payment of his share of the school fees on the basis that his signature was forged, no such agreement or contract was pleaded by the Respondent in its statement of claim or by the Appellant in his defence. He makes no allegation of forgery whatsoever in his defence. As I have been at pains to stress, the Magistrates’ Court Proceeding concerned a claim for a debt owed by the Appellant, the liability for which had been conceded in the Appellant’s defence.
[39]Ibid [106].
Dr Eimany provided no evidence on which the Associate Justice could have made the serious finding of forgery. He bore the responsibility of providing such evidence.
The Associate Justice did not make an unreasonable or unjust decision by not considering whether the signature was fraudulent. She was presented with no evidence on which she could have made such a serious finding. But in any event, I consider this question to be a side issue and as not relevant to the key question of whether Dr Eimany had agreed to pay half of the school fees to the School.
Grounds 22 is not established.
Ground 5: Should Dr Eimany have been allowed to view the School’s bank statements?
Ground 5 is also connected with grounds 4 and 7 as it contends that the Associate Justice erred in accepting as fact the false imputation that Dr Eimany wanted to see the School’s bank records ‘for the sole reason that they could not possibly show payment of moneys by [him] in circumstances where [he] had yet to pay the fees owed to the [School]’. He had always wanted to see the bank records for proof that his former wife had paid the other half of the school fees. That was why he had sought discovery of documents. He refused to make any further payment until the documents he requested were provided to him.
The Associate Justice found that many matters that Dr Eimany raised as questions of law on which to appeal the Magistrates’ Court orders did not have any relationship to the issues decided in the Magistrates’ Court proceeding.[40] His demand for proof that his former wife had paid half of the school fees did nothing to advance his case in the Magistrates’ Court, as his liability to pay half the school fees was not dependent on his former wife having paid her half.
[40]Ibid [91].
The Associate Justice did not accept Dr Eimany’s complaints that the School had refused to provide him with documents showing his former wife’s payments of school fees and had used references to the privacy laws so as to ‘befuddle and deceive him’. In the passage I have previously quoted her Honour stated that Dr Eimany’s liability to pay the school fees was not contingent or conditional upon whether his former wife had paid her share of the school fees.[41]
[41]Ibid [92].
Therefore, the bank statements could only be relevant to whether Dr Eimany had paid his share of the fees, but he did not dispute that he had not paid the amount that the School claimed from him. As the Associate Justice stated:[42]
The assertion at question 1(d) is further elaborated on in the Appellant’s associated grounds of appeal, where it is stated that the affidavit of documents filed by the Respondent in the Magistrates’ Court Proceeding did not disclose the Respondent’s bank statements. This ground appears to be directed to whether the Appellant’s former spouse paid her half share of the school fees. For the reasons outlined in the preceding paragraph, the Appellant’s indebtedness to the Respondent is not subject to, or conditional on, any payments made by his former spouse. Rather, the material filed by the Appellant in both this proceeding and the Magistrates’ Court Proceeding shows that the Respondent provided him with fee statements on or around 5 February 2020, 1 June 2020 and 10 August 2020. The fee statements provide an itemised break down of the debt owed by the Appellant. That the Respondent did not furnish any bank statements to the Appellant in its affidavit of documents is neither here nor there: the bank statements are not relevant to the claim pressed in the Magistrates’ Court Proceeding for the sole reason that they could not possibility show payment of moneys by the Appellant in circumstances where the Appellant had yet to pay the fees owed to the Respondent.
[42]Ibid [93].
The Associate Justice rejected Dr Eimany’s argument that the alleged failure of the School’s bank to comply with a subpoena to produce documents related to the issues in the Magistrates’ Court. Her Honour stated: [43]
As demonstrated by the documents filed by the Appellant himself, the bank advised the Magistrates’ Court that it did not have any documents to produce in response to the subpoena. This ground appears to be directed to the appellant’s relentless pursuit to ascertain whether or not his former spouse paid her share of the school fees, and suffers from similar deficiencies to those previously outlined.
[43]Ibid [97].
Analysis of ground 5
Given that the Associate Justice found that Dr Eimany was liable to pay half the school fees, the bank statements were not relevant to whether a contract existed between him and the School for the payment of fees. He did not dispute that he had not paid the fees claimed by the School in the proceeding. Dr Eimany would have been liable for his part of the school fees regardless of whether his former wife had paid her share. His payment of fees was never contingent on whether she had paid half the fees. The agreement with the School could have become unworkable if neither Dr Eimany or his former wife had to pay their share of fees until they had proof that the other had paid their share.
Ground 5 is not established.
Grounds 11 and 12: Did the Associate Justice take into account an irrelevant consideration in considering the Family Court orders?
Grounds 11 and 12 are also connected to grounds 3, 4 and 7. They contend that the Associate Justice erred in considering Family Court orders which dealt with the enrolment of the children in the School without the father’s signature. The grounds also contest that the Family Court orders could be taken to be a contract between Dr Eimany and the School.
Dr Eimany contended that the Family Court orders were irrelevant as the children were already enrolled, and the contract with the School had already commenced, before they were made. They were irrelevant to the existence of the contract.
Analysis of grounds 11 and 12
Dr Eimany accepts that he did in fact sign and agree to the Family Court orders He filed copies of them in the Magistrates’ Court. It was open to the Associate Justice in reaching her decision to consider the materials which the parties had filed or provided to her.
The Associate Justice noted that Dr Eimany had filed the Acceptance of Offer forms and Family Court documents ‘which appear to bear his signature’. But she stated that evidence that he relied on to support his serious allegations of forgery were irrelevant to his appeal.[44] Her Honour’s conclusion was correct because Dr Eimany did not dispute that he had agreed to pay half the school fees.
[44]Ibid [106].
Grounds 11 and 12 are not established.
Grounds 14, 15, 16 and 17: Whether the use of the term ‘the Privacy Laws’ by the School was misleading and deceptive.
Grounds 14-17 are also connected to grounds 3, 4 and 7. Dr Eimany alleged that he was misled into making statements because of the School’s ‘fraudulent and misleading conduct’. The conduct was said to be the School’s statement that ‘privacy laws’ prevented it disclosing to him whether his former wife had paid half the school fees and its refusal to provide him with receipts or bank statements showing her payments. This misleading conduct included statements about non-existent privacy laws, dishonesty in an affidavit and refusing discovery of redacted bank statements and redacted receipts without good reasons.
Ground 16, contends that the Associate Justice acted on a wrong principle as the provision of the bank statements was central to the case and that the School could not maintain that they were irrelevant before the Magistrates’ Court so determined. Ground 17 contends that the Associate Justice acted upon the wrong principle that no substantial injustice would flow from falsely attributing liability to a person who was misled by false or deceptive conduct, as that would essentially legalise all scams which resulted in invoices being accidentally paid by unsuspecting victims.
Dr Eimany argued that the School was incorrect in stating that the bank statements were irrelevant to the determination of the issues and that they should have been considered by the Magistrate and the Associate Justice in reaching their decisions.
I will mention ground 13(a)(v) at this point as it contends that Dr Eimany’s submissions about the School’s misleading and deceptive conduct were also submitted under the tendency rule in the Evidence Act 2008.
Analysis of grounds 14-17 and 13 (a)(v)
Grounds 14-17 and 13(a)(v) are not established. Dr Eimany’s liability to pay half the school fees was not contingent on his former wife paying half the fees. Disputes about the production of documents to explore whether his former wife had paid half of the fees were therefore irrelevant as were statements by the School about the existence of privacy laws. Ground 13(a)(v) does not assist his case and was not developed in his submissions.
Grounds 13(a)(iv), (b) and (d): Did the Associate Justice ignore relevant considerations?
Ground 13(a)(iv) states that Dr Eimany’s submissions about his grievances with the School were to prove that he did not want his children at the School and that the signatures were not genuine.
Ground 13(b) contends that the Associate Justice ignored relevant considerations being ‘the family violence dynamics of alienating parents’ and how false defamatory findings in the court hearings would be used by his former wife to harm the children. He argued that his ‘pursuit of justice [was] to prevent further harm to the relationship with his children by false allegations and defamatory judgments’.[45] Ground 13(d) contends that the School’s assertion that Dr Eimany wanted to delay payment and frustrate the School was incorrect as he did not apply for a stay of proceedings and the School had not tried to enforce the default judgment of the Magistrates’ Court.
[45]Appellant’s Amended Notice of Appeal, [13](b).
Analysis of grounds 13(a)(iv), (b) and (d)
These grounds do not establish any error by the Associate Justice. Her Honour’s judgment decided a dispute between the parties about Dr Eimany’s legal obligation to pay half the school fees. The matters Dr Eimany raises in these grounds have no relevance to this issue. Statements about why Dr Eimany may have acted in a particular manner similarly have no relevance.
Grounds 13(a)(iv), (b) and (d) are not established.
Ground 23: Counsel for the School’s submissions to the Associate Justice
Dr Eimany contends that the submissions of counsel for the school to the Associate Justice were in breach of his duties under professional rules for making submissions for his client. Dr Eimany contended that this was due to manifestly fraudulent Acceptance of Offer forms.[46]
[46]Amended Notice of Appeal, [23].
Analysis of ground 23
There was no evidence that the Acceptance of Offer forms were fraudulent and there is no merit in this ground. Again, it has no relevance to the key issues in this proceeding. There is no evidence that the counsel breached any professional conduct rule.
Grounds 24, 25, 26, 27 and 28: Whether Dr Eimany established that a reasonable person would apprehend that the Associate Justice had demonstrated bias.
These grounds were whether the Associate Justice ‘gave the apprehension of bias’ by:
25. Overriding O2.02 of the Rules when the Respondent had not made any request or submissions for that.
26. Publishing a defamatory part of the Family Court order that had no bearing on the case; ‘The orders also expressly state that this authorisation is conferred ‘without the need for the Father’s signature’, and that, until further order, the daughters are to remain enrolled at the Respondent school.’
27. Not attributing Magistrate Foster’s ‘fake argument’ determination to what was being discussed at the time; ‘a defence on the merit’ and admission of liability [whilst labouring under the misapprehension that a valid contract existed]. Instead attributing the ‘fake argument’ determination to two topics earlier.
28. The document Family Law Inquiry contained material on parental alienation, and material relevant to domestic violence dynamics in parental alienating families. It was relevant in that the parental alienating parents have a high incident of personality disorders who lie and use court processes as a form of systems abuse. Furthermore, this document has been submitted in the Full Court of this honourable court, to the High Court, professors of law for the Appellant’s Juris Doctor degree, and all the attorney generals in the country. No one has made any negative inferences and all the responses of the attorney generals but one, has indicated that they would intervene if the Constitutional Matter was removed to the High Court.
Analysis of grounds 24, 25, 26, 27 and 28
The test for apprehended bias is whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question that the judge was required to decide.[47]
[47]Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337, 344 [6].
Dr Eimany’s contentions do not establish a reasonable apprehension of bias. None of these grounds has any relevance to the issues that the Associate Justice was required to decide.
The observations by the Associate Justice about the Family Court orders, which Dr Eimany had filed, could not be said to be defamatory. The Associate Justice quoted the terms of the order because Dr Eimany had ‘filed’ them. After describing their terms, she concluded they ‘failed to support the serious allegations made by him’ and ‘even so [those] issues were completely irrelevant to the Appeal brought by the Appellant’.[48]
[48]Associate Justice’s reasons [106].
Contrary to Dr Eimany’s contention, the Associate Justice made no adverse use of the Magistrate’s expression ‘fake argument’ but accurately explained the context in which it had been used. As the Associate Justice noted, the highest that the Magistrate’s use of the words on 3 August 2021 went was that the Magistrate was rejecting an argument by the School’s counsel that Dr Eimany’s failure to attend the hearing on 9 June 2021 was consistent with his liability for the debt. Neither the Magistrate nor the Associate Justice used the words adversely to Dr Eimany.[49]
[49]Ibid [72].
The Associate Justice did not ‘override O 2.02’, as ground 25 alleges, but rather correctly considered that it was not a decisive factor in her decision whether to allow the proceedings to be changed to a judicial review application.
Grounds 24-28 are not established.
Grounds 2 and 3: Whether Dr Eimany was required to provide the Magistrate with a reason for his failure to appear at the hearing on 9 June 2021.
Grounds 2 and 3 concern whether the Associate Justice erred in accepting as a fact that Dr Eimany was required to provide the Magistrate on 3 August 2021 with a reason for his failure to participate in the 9 June hearing and whether the correct test was applied by the Magistrate at the rehearing application on 3 August 2021. The Associate Justice accepted that Dr Eimany did have to provide an explanation for his non-participation in the 9 June hearing and that he had failed to do so.
Section 110(1) of the Magistrates’ Court Act states:
If a final order is made by the Court in a civil proceeding against a person who did not appear in the proceeding, that person may, subject to and in accordance with the Rules, apply to the Court for an order that the order be set aside and that the proceeding be re-heard.
Form 46B in the Magistrates’ Court General Civil Procedure Rules 2020, which is the form for a rehearing application under s 110 of the Magistrates’ Court Act and under r 46.08, requires an applicant for rehearing to provide reasons as to why they failed to appear on the day the matter was originally listed.
There was no error in the Magistrate requiring a reason for Dr Eimany’s non-participation in the hearing on 9 June 2021 before he exercised his discretion to allow a rehearing. Such an explanation or reason is commonly required when an extension of time or a rehearing is sought. Notwithstanding that the Magistrate noted that he had ‘real doubts’ about Dr Eimany’s contention that he could not connect to the proceeding by using his computer, he also found that the Dr Eimany was unable to establish a defence on the merits and refused to set aside the orders of the first Magistrate made on 9 June. Whether or not Dr Eimany was required to give reasons for his failure to appear on the first occasion did not have any impact on the outcome of his application for a rehearing.
I find that the Associate Justice did not err in her consideration of this part of the Magistrate’s reasons. She did not err, having considered the relevant circumstances, in stating that she had an unfettered discretion to refuse leave to appeal.[50]
[50]Mako’ochieng [8].
Grounds 2 and 3 are not established.
Ground 6: ‘the time an email is sent is not the same as the time an email is received’.
This ground appears to refer to the following passage in her Honour’s judgment, when considering Dr Eimany’s submissions about his failure to appear at the hearing on 9 June 2021:[51]
However, the Appellant appears to be referring to the email sent to him at 10:26am on 9 June 2021. This email was sent to him only after he failed to attend the hearing and had failed to inform the court of any circumstances that were impeding his ability to access the hearing. A bare reference to ‘unprecedented storms’ made at the re-hearing application, and persisted with in this proceeding, is in no way sufficient in circumstances where the court found that the Appellant was aware of the hearing on 9 June 2021. Therefore, this aspect of the Appellant’s appeal is also without merit.
[51]Associate Justice’s reasons [100].
This ground has no merit. Dr Eimany did not participate in the hearing on 9 June 2021 and the time at which he received the email is not relevant. He had previously been provided with the contact details to enable him to participate in the hearing.
Ground 6 is not established.
Ground 13: Issues concerning the recording of the Magistrates’ Court hearing on 9 June 2021 and the Magistrates’ Court file
Ground 13 a i contends that the Associate Justice ignored a relevant consideration being the fact that the ex parte hearing on 9 June 2021 was not recorded in its entirety and the section of the hearing in which the Acceptance of Offer forms were provided to the Court was missing. As a result, Dr Eimany was not able to ascertain whether the forms were tendered by the School and whether the Magistrate made any comments about whether the forms were part of the contract for the payment of school fees.[52] The absence of the recording showing whether the ‘Acceptance of Offer’ forms were produced prevented the Court from ascertaining whether at the hearing, the forms were accepted as the contract between the parties. The recording might also have revealed why the forms had not been produced, if that was the case, and why they had not been discovered.
[52]Amended Notice of Appeal, ground 13(a)(i).
Ground 13 a ii concerns the fact that the Magistrates’ Court file was also missing the Acceptance of Offer forms. Ground 13 c states that Dr Eimany’s request for the audio-visual recording of the hearing was due to the Magistrates’ Court’s difficulty in keeping accurate records and also ‘to help reunification with his children later’.
Ground 13 c states that Dr Eimany request for the audiovisual recording of the hearing was due to difficulty in the Magistrates’ Court keeping accurate records and ‘also to help with reunification with his children later’.
Analysis of grounds 13 a i, ii, c
The parts of this ground to which I have just referred involve speculation and have no substance. The unavailability of a recording of some of the Magistrates’ Court hearing and the fact that the forms were not on the Court file did not prevent Dr Eimany attempting to establish a defence on the merits to the School’s claim. As I have previously stated, issues about the ‘Acceptance of Offer’ forms were not relevant to whether Dr Eimany had agreed to pay half the school fees as he did not dispute that he had so agreed.
Grounds 13a i, ii and c are not established.
Grounds 4 iv and v, 8-10: questions about the application of the criminal law, including under the Crimes Act 1958
Finally, Dr Eimany’s Notice of Appeal raised abstract questions about the application of the criminal law.
Ground 4 iv
Ground 4 iv raised the issue of whether breaches of the Crimes Act 1958 could occur if scholarships and/or discounts were applied to only one half of school fees and that fact was concealed from the person paying the other undiscounted half.
Ground 8
Dr Eimany questioned whether s 82 of the Crimes Act ‘obtaining financial advantage by deception’ is an offence of strict liability.
Ground 9
Dr Eimany questioned whether the defence of honest and reasonable mistake was available to the School if had chosen the path of denial and ‘ugly’ unfounded ‘ad hominem’ attacks on him instead.
Grounds 4 a v and 10
Dr Eimany questioned whether refusing discovery of receipts for the payments of the other half of the school fees falls under s 86(1) of the Crimes Act 1958; ‘Suppression of documents.’
Analysis of grounds 4 a iv and v, 8-10
These grounds raise abstract questions which have no connection to the Associate Justice’s reasons or issues in the civil proceeding between the parties. They have no relevance to the issues that the Magistrates and the Associate Justice were required to decide.
Grounds 4 iv and v and 8-10 are not established.
Conclusion
None of the grounds of appeal have been established.
The appeal is dismissed. I will hear the parties about costs.
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