Eimany v Ruyton Girls' School - [2023] VSC 573

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…

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 Eimany v Ruyton Girls' School

Details

AGLC: Eimany v Ruyton Girls' School [2023] VSC 573
Case: [2023] VSC 573
Decision Date: 27 September 2023

CaseChat Overview and Summary

The case of Eimany v Ruyton Girls' School involved the plaintiff, Eimany, who sought to appeal against the decisions of an Associate Justice in relation to a claim for school fees. The dispute centred around the refusal by the Associate Justice to grant leave to appeal orders made by the Magistrates' Court in a proceeding brought by the plaintiff. The plaintiff had initiated proceedings in the Magistrates' Court to recover unpaid school fees from Ruyton Girls' School, but the proceedings were dismissed. The plaintiff subsequently sought to appeal the decisions of the Associate Justice who had dismissed the application for leave to appeal.

The primary legal issue before the court was whether the Associate Justice erred in dismissing the plaintiff's application for leave to appeal and subsequently refusing the application for a rehearing. The plaintiff argued that the Associate Justice should have allowed the appeal to proceed as an originating motion for judicial review, which would have permitted the court to consider the merits of the appeal. The plaintiff also contended that the dismissal of the application for leave to appeal was an interlocutory order that could be reviewed under the Supreme Court (General Civil Procedure) Rules 2015.

The court held that the Associate Justice did not err in refusing to allow the appeal to continue as an originating motion. The court found that the plaintiff had not participated in the hearing before the Associate Justice, which was a fundamental requirement for the appeal to proceed. Furthermore, the court determined that the refusal of the rehearing application was an interlocutory order that could not be reviewed under the relevant rules. The court concluded that there was no error in the Associate Justice's decision and dismissed the appeal. The plaintiff's application for leave to bring the appeal was also dismissed, and an order was made for the summary dismissal of the proceeding.

The court upheld the orders made by the Associate Justice and dismissed the appeal. The court found no error in the reasoning of the Associate Justice and held that the dismissal of the application for leave to appeal was a valid interlocutory order. Consequently, the appeal was dismissed, and the orders made by the Associate Justice were upheld.

Orders