Eimany v Ruyton Girls' School - [2022] VSC 420

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST

S ECI 2021 03437

BETWEEN:

DR ARASH (TOM) EIMANY	Appellant
v
RUYTON GIRLS’ SCHOOL	Respondent

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JUDGE:	Matthews AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	6 May 2022
DATE OF RULING:	1 August 2022
CASE MAY BE CITED AS:	Eimany v Ruyton Girls’ School
MEDIUM NEUTRAL CITATION:	[2022] VSC 420

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APPEAL – Appeal pursuant to s 109 of the Magistrates’ Court Act 1989 (Vic) – Deemed as an application for leave to appeal from order of Magistrates’ Court – Whether failure to appeal within prescribed 30 day period due to exceptional circumstances – Grounds of appeal with no reasonable prospects of success – Application for leave to appeal dismissed – Magistrates’ Court Act 1989 (Vic), ss 109 and 110 – Mako’ochieng v Kirk [2017] VSC 459 – Competence of appellant’s application – Kinex Exploration Pty Ltd v Tasco Pty Ltd [1995] 2 VR 318.

ADMINISTRATIVE LAW – Supreme Court (General Civil Procedure) Rules 2015 (Vic), rr 58.08, 58.09 and 58.10(9) – Application for summary dismissal of appellant’s application to Supreme Court for appeal of orders made by the Magistrates’ Court – Whether the notice of appeal identifies sufficiently or at all a question of law – Whether the appellant has an arguable case – Procedural fairness – Abuse of process – Adequacy of reasons – Transport Accident Commission v Kamel [2011] VSCA 110.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Dr A Eimany, the Appellant, in person	Self-represented litigant
For the Respondent	Mr S A Lowry	Michael Sandor & Associates

HER HONOUR:

Introduction

This decision concerns an application by the Appellant, initiated by notice of appeal dated 31 August 2021 (‘Notice of Appeal’), for leave to appeal two orders of the Magistrates’ Court of Victoria (‘Magistrates’ Court’). The circumstances in which this came to be treated as an application for leave to appeal will be explained shortly. This decision also involves an application by the Respondent, Ruyton Girls’ School, for summary dismissal of the Appellant’s appeal pursuant to r 58.10(9) of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) (‘Rules’), made by way of summons dated 23 November 2021.

The applications were heard together on 6 May 2022. For the purposes of the applications, the Appellant relies on the affidavits of Dr Arash (Tom) Eimany sworn 4 October 2021 (‘First Eimany Affidavit’), 30 November 2021 (‘Second Eimany Affidavit’), 14 February 2022 (‘Third Eimany Affidavit’) and 25 March 2022 (‘Fourth Eimany Affidavit’), as well as the exhibits to those affidavits.[1] The Appellant also relies on his written outline of submissions filed 25 April 2022.
[1]An earlier, unsworn iteration of the Appellant’s affidavit dated 25 March 2022 was filed on the same date. Save that the unsworn copy of the affidavit does not contain exhibits, it is virtually identical to the sworn version referred to in…

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: [2022] VSC 420
Decision Date: 1 August 2022

CaseChat Overview and Summary

In the case of Eimany v Ruyton Girls’ School, the appellant sought to appeal the decision of the Magistrates’ Court in relation to orders made against them. The appeal was brought pursuant to section 109 of the Magistrates’ Court Act 1989 (Vic), which allowed for the appeal to be deemed as an application for leave to appeal. The appellant argued that the failure to appeal within the prescribed 30-day period was due to exceptional circumstances. The grounds of appeal were also considered, with a determination of whether they had no reasonable prospects of success. The application for leave to appeal was ultimately dismissed.

The primary legal issues that the court had to decide were whether the failure to appeal within the 30-day period was due to exceptional circumstances and whether the grounds of appeal had no reasonable prospects of success. The court also had to consider the adequacy of the reasons provided by the appellant for the delay in appealing and the overall procedural fairness of the case. The court referenced relevant statutes and case law, including Mako’ochieng v Kirk [2017] VSC 459, to assess the competence of the appellant’s application. Furthermore, the court considered whether the notice of appeal identified a question of law and whether the appellant had an arguable case, as outlined in the Supreme Court (General Civil Procedure) Rules 2015 (Vic).

The court concluded that the appellant’s application for leave to appeal was not competent, as it did not sufficiently identify a question of law or present an arguable case. The court found that the appellant had failed to demonstrate exceptional circumstances justifying the delay in appealing. Additionally, the grounds of appeal were deemed to have no reasonable prospects of success. The court also noted procedural fairness concerns, including the adequacy of reasons and potential abuse of process, as outlined in Transport Accident Commission v Kamel [2011] VSCA 110. Consequently, the application for leave to appeal was dismissed, and the appeal was not proceeded with.

No specific orders were made beyond the dismissal of the application for leave to appeal.

Orders