SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCI 2011 0195
| PAUL GATTO | Applicant |
| v | |
| STEVEN ROSS FELSTEAD | Respondent |
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JUDGES: | WEINBERG JA and KYROU AJA | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 9 February 2012 | |
DATE OF JUDGMENT: | 9 February 2012 | |
MEDIUM NEUTRAL CITATION: | [2012] VSCA 14 | |
JUDGMENT APPEALED FROM: | Felstead v Gatto [2011] VSC 617 (Bell J) | |
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APPLICATION FOR LEAVE TO APPEAL – Orders made by trial judge in an appeal under s 109 of the Magistrates’ Court Act1989 and an application under O 56 of the Supreme Court (General Civil Procedure) Rules 2005 – Magistrate made an order staying the respondent’s proceeding with costs without considering all the grounds in support of the application for a stay – No express finding by trial judge of special circumstances under r 56.02(3) for granting an extension of time – Trial judge entitled to determine that special circumstances existed in the light of the applicant’s conduct at trial – Trial judge required to have regard to ss 7, 8 and 9 of the Civil Procedure Act 2010 in applying r 56.02(3) – Trial judge’s consideration of evidentiary matters did not vitiate conclusion that there was an error of law on the face of the Magistrates’ Court record – Trial judge erred in dismissing application for a stay with costs instead of setting aside the magistrate’s order and remitting the proceeding to the Magistrates’ Court – Substantial injustice arising from that error – Leave to appeal granted only in respect of that error.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr M G McKenney | Mallesons Stephen Jaques |
| For the Respondent | Mr D Laidlaw | Derek Norquay |
WEINBERG JA:
I shall invite Kyrou AJA to deliver the first judgment.
KYROU AJA:
Introduction
Paul Gatto has applied for leave to appeal against orders made by a trial division judge on 30 November 2011 in two related proceedings in which Mr Gatto was the defendant and Steven Felstead was the plaintiff.[1] The first proceeding was an appeal under s 109 of the Magistrates’ Court Act1989 (‘MC Act’) against an order made by a magistrate on 21 March 2011. The magistrate’s order stayed Mr Felstead’s proceeding against Mr Gatto seeking payment of overdue remuneration of $50,031.74 and required Mr Felstead to pay Mr Gatto’s costs. The second proceeding was an application under O 56 of the Supreme Court (General Civil Procedure) Rules 2005 (‘Rules’) for an order quashing the magistrate’s order.
[1]The primary decision is Felstead v Gatto [2011] VSC 617 (29 November 2011) (‘Reasons’). Leave to appeal is required in accordance with s 17A(1)(b), (3A)(b) and (4)(b) of the Supreme Court Act 1986.
The orders of the trial judge were in the following terms:
1.The applicant is granted leave under r 56.02(3) of the Supreme Court (General Civil Procedure) Rules 2005 (Vic) to issue his application for judicial review.
2. The affidavits and other documents filed in the applicant’s appeal are to be treated as filed in the application for judicial review.
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- AGLC
- Gatto v Felstead [2012] VSCA 14
- Case
- [2012] VSCA 14
- Decision Date
CaseChat Overview and Summary
The legal issues in this case centred on whether the trial judge was entitled to determine that special circumstances existed given the applicant’s conduct at trial, and whether the trial judge should have had regard to sections 7, 8, and 9 of the Civil Procedure Act 2010 in applying rule 56.02(3). Furthermore, the court needed to determine if the trial judge’s consideration of evidentiary matters vitiated the conclusion that there was an error of law on the face of the Magistrates’ Court record, and if the trial judge erred in dismissing the application for a stay with costs instead of setting aside the magistrate’s order and remitting the proceeding to the Magistrates’ Court.
The court found that the trial judge was entitled to determine that special circumstances existed given the applicant’s conduct at trial and should have considered the relevant sections of the Civil Procedure Act 2010. The consideration of evidentiary matters did not vitiate the conclusion that there was an error of law on the face of the Magistrates’ Court record. The trial judge had indeed erred in dismissing the application for a stay with costs instead of setting aside the magistrate’s order and remitting the proceeding to the Magistrates’ Court. This error caused substantial injustice. Therefore, leave to appeal was granted only in respect of that error.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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