Fato v Regione Calabria Pty Ltd - [2014] VSC 435

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST

S CI 2013 0561

CELESTINA LINA FATO	Appellant
v
REGIONE CALABRIA PTY LTD	Respondent

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JUDGE:	KYROU JA
WHERE HELD:	Melbourne
DATE OF HEARING:	14 August 2014
DATE OF JUDGMENT:	11 September 2014
CASE MAY BE CITED AS:	Fato v Regione Calabria Pty Ltd
MEDIUM NEUTRAL CITATION:	[2014] VSC 435
JUDGMENT APPEALED FROM:	Regione Calabria Pty Ltd v Fato (Unreported, Magistrates’ Court of Victoria, Magistrate Ginnane, 20 December 2012)

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APPEAL — Question of law — Magistrates’ Court Act 1989 s 109 — Test applicable where it is alleged the Magistrate’s decision is not open on the evidence.

ADMINISTRATIVE LAW — Natural justice — Magistrate made comments in running indicating adverse view of credit of appellant and respondent’s key witness — Comments more adverse to respondent’s key witness — Neither party complained during the trial — Appellant not denied natural justice — Waiver of right to rely on any breach of rules of natural justice.

ADMINISTRATION OF JUSTICE — Fair trial according to law — Undue interference by Magistrate in the conduct of the hearing — Magistrate took initiative to telephone a new witness during the hearing — No miscarriage of justice when trial considered as a whole.

CONTRACT — Loan agreement — Non-payment of principal and interest — Whether action statute barred — Limitation of Actions Act 1958 s 5.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr A Strauch	Garland Hawthorn Brahe Lawyers
For the Respondent	No appearance
For Madge Enterprises Pty Ltd	Mr A Scriva	Starnet Legal Pty Ltd

TABLE OF CONTENTS

Introduction and summary............................................................................................................... 1

Overview of key people, events and documents......................................................................... 2

MC proceeding................................................................................................................................... 7

Pleadings in the MC proceeding................................................................................................ 7
MC hearing..................................................................................................................................... 8

Evidence of Mr Dattilo........................................................................................................... 8
Evidence of Mrs Dattilo....................................................................................................... 10
Evidence of the appellant.................................................................................................... 11

Magistrate’s decision....................................................................................................................... 12

First ground of appeal: No evidence for factual findings........................................................ 15

Relevant legal principles........................................................................................................... 15
Parties’ submissions................................................................................................................... 16
Conclusion................................................................................................................................... 18

Second ground of appeal: Erroneous legal findings................................................................. 22

Third ground of appeal: Denial of natural justice; mistrial..................................................... 24

Relevant legal principles........................................................................................................... 24
Conduct of the Magistrate......................................................................................................... 28

Magistrate’s questioning of Mr Dattilo.............................................................................. 29
Magistrate’s questioning of the appellant......................................................................... 37
Other comments by the Magistrate.................................................................................... 45

Parties’ submissions................................................................................................................... 46
Conclusion................................................................................................................................... 48

Irregularity of Order........................................................................................................................ 53

Proposed order.................................................................................................................................. 54

HIS HONOUR:

Introduction and summary

The appellant was sued by the respondent in the Magistrates’ Court at Melbourne for recovery of an alleged loan of $35,000 together with outstanding interest (‘MC proceeding’). On 20 December 2012, the Magistrate decided that the parties had entered into a loan agreement and that the appellant had breached it by failing to pay the principal and interest when due (‘Magistrate’s decision’).[1] His Honour made an order that the appellant pay to the respondent the amount of $100,000 (‘Order’).
[1]Regione Calabria Pty Ltd v Fato (Unreported, Magistrates’ Court of Victoria, Magistrate Ginnane, 20 December 2012) (‘Reasons’).

The appellant has appealed to this Court…

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: [2014] VSC 435
Decision Date: 11 September 2014

CaseChat Overview and Summary

In Fato v Regione Calabria Pty Ltd, the plaintiff sought to recover a loan made to the defendant. The case was heard in the County Court of Victoria and subsequently appealed to the Supreme Court of Victoria. The defendant raised several grounds of appeal, including the magistrate's comments during the trial, the magistrate's interference in the proceedings, and the applicability of the statute of limitations to the claim.

The legal issues in the appeal included whether the magistrate's comments during the trial breached the rules of natural justice, whether the magistrate's interference in the proceedings deprived the defendant of a fair trial, and whether the plaintiff's claim was statute-barred. The court considered whether the magistrate's comments, which were critical of the defendant's key witness, breached the rules of natural justice. The court found that neither party complained during the trial, and therefore, the appellant had waived their right to rely on any breach of natural justice. The court also considered whether the magistrate's interference in the proceedings, by telephoning a new witness during the hearing, deprived the defendant of a fair trial. The court found that there was no miscarriage of justice when the trial was considered as a whole. Finally, the court considered whether the plaintiff's claim was statute-barred. The court found that the claim was not statute-barred as the cause of action accrued when the loan was made, and the six-year limitation period had not expired.

The court dismissed the appeal and upheld the decision of the County Court of Victoria. The court found that the magistrate's comments did not breach the rules of natural justice, and that the magistrate's interference in the proceedings did not deprive the defendant of a fair trial. The court also found that the plaintiff's claim was not statute-barred. The court held that the defendant was liable to pay the plaintiff the outstanding balance of the loan, together with interest and costs.

Orders