Francis v Wilson - [2023] VSC 410

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

VALUATION, COMPENSATION AND PLANNING LIST

S ECI 2021 04244

LOUISE FRANCIS	Applicant
v
CHRISTOPHER WILSON	Respondent

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JUDGE:	Gorton J
WHERE HELD:	Melbourne
DATE OF HEARING:	On the papers
DATE OF JUDGMENT:	19 July 2023
CASE MAY BE CITED AS:	Francis v Wilson
MEDIUM NEUTRAL CITATION:	[2023] VSC 410

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APPEAL – Application for leave to appeal from a costs order made by VCAT – Where grounds of appeal directed to the merits of VCAT’s substantive decision rather than to its costs decision – No error of law in VCAT’s exercise of discretion to award costs – Leave to appeal refused.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Litigant in person
For the Respondent	No appearance

HIS HONOUR:

A. Introduction

Ms Francis, the applicant, brought a proceeding in the Victorian Civil and Administrative Tribunal (‘the Tribunal’) against Mr Wilson, the respondent. The Tribunal summarily dismissed the proceeding and ordered Ms Francis to pay costs. She has applied to this Court under s 148 of the Victorian Civil and Administrative Tribunal Act 1998 (‘the VCAT Act’) for leave to appeal against the order that she pay costs. She has not appealed against the summary dismissal of the proceeding. The appeal is limited to an appeal on a question of law. The appeal was listed for hearing on 6 June 2023. Mr Wilson has informed the Court that he does not wish to participate in the appeal and that he will abide the decision of the Court. At the request of Ms Francis, the application for leave was dealt with on the papers.

Notwithstanding that Mr Wilson has not appeared to resist the application for leave to appeal, I should not grant leave, or allow the appeal, unless I am satisfied that it is proper to do so.[1]
[1]See, eg, Telstra Corporation Ltd v Minister for Broadband, Communications and the Digital Economy (2008) 166 FCR 64, 74-75 [40], 77 [51] (French, Weinberg and Greenwood JJ); Newton v Geelong Ethnic Communities Council Inc [2011] VSCA 59, [16]-[17] (Weinberg JA); Melbourne Water Corporation v Caligiuri (2020) 60 VR 462, 468-469 [19] (Whelan, Niall and Emerton JJA).

B. The proceedings below

Ms Francis and Mr Wilson own adjoining properties in Caroline Street, South Yarra. Mr Wilson applied for a permit to do work at his property, Ms Francis objected to the grant of the permit, but, on 30 September 2020, the Stonnington City Council (‘the Council’) decided that it would grant a permit. In accordance with the usual practice, it issued a ‘notice of decision to grant a permit’ in which it stated that it would issue a permit if no appeal against the decision to grant a permit was lodged within 28 days with the Tribunal.

On 27 October 2020, which was within the 28 day time limit, Ms Francis lodged an objection application with the Tribunal. Her application, however, was expressed…

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 Francis v Wilson

Details

AGLC: Francis v Wilson [2023] VSC 410
Case: [2023] VSC 410
Decision Date: 19 July 2023

CaseChat Overview and Summary

The appeal in Francis v Wilson arose from a decision made by the Victorian Civil and Administrative Tribunal (VCAT) concerning a dispute over costs. The applicant, Francis, sought leave to appeal against a costs order made by VCAT in a proceeding between the parties. The nature of the original dispute was not explicitly detailed in the appeal, but it was related to a decision that VCAT had made, which ultimately resulted in a costs order against the applicant. The application for leave to appeal was brought before the Supreme Court of Victoria.

The primary legal issue before the court was whether the grounds of appeal, which were directed to the merits of VCAT’s substantive decision rather than its costs decision, were sufficient to warrant leave to appeal. The court was required to determine whether there was an error of law in VCAT’s exercise of discretion to award costs, as well as whether the appeal had a reasonable chance of success. The applicant argued that the VCAT decision contained errors of law and fact, which necessitated a review by the Supreme Court.

The Supreme Court found that the grounds of appeal were primarily concerned with the merits of VCAT’s substantive decision, rather than the costs decision itself. The court held that since the applicant’s arguments were essentially about the correctness of VCAT’s substantive decision, they did not constitute a sufficient ground for appeal under the statutory framework for appeals from VCAT decisions. Furthermore, the court concluded that there was no error of law in VCAT’s exercise of discretion to award costs, as the decision was well within the bounds of VCAT’s authority. Consequently, the application for leave to appeal was refused.

Orders