Gatto v Felstead - [2012] VSCA 14

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.

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 Gatto v Felstead

Details

AGLC: Gatto v Felstead [2012] VSCA 14
Case: [2012] VSCA 14
Decision Date: 9 February 2012

CaseChat Overview and Summary

Gatto v Felstead involved an application for leave to appeal against orders made by a trial judge during an appeal under section 109 of the Magistrates’ Court Act 1989 and an application under Order 56 of the Supreme Court (General Civil Procedure) Rules 2005. The respondent sought to stay the appellant’s proceeding with costs. The trial judge, however, made the order to stay without considering all the grounds in support of the application. Moreover, there was no express finding by the trial judge of special circumstances under rule 56.02(3) for granting an extension of time.

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