Harris v Kennedy - [2015] VSC 1

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S CI 2014 3965

ROBERT ALLEN HARRIS and MARGARET MARY HARRIS	Appellants
v
JAMES PATRICK KENNEDY and DIANNE ELIZABETH KENNEDY	Respondents

---

JUDGE:	LANSDOWNE AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	10 December 2014
DATE OF JUDGMENT:	16 January 2015
CASE MAY BE CITED AS:	Harris and anor v Kennedy and anor
MEDIUM NEUTRAL CITATION:	[2015] VSC 1

---

APPEAL FROM MAGISTRATES’ COURT – Application for summary dismissal – Appellants seek to put arguments not put below – Arguable question of law – No new cause of action – Summary dismissal largely refused – Notice of appeal flawed – Questions and grounds struck out with leave to re-plead, rather than dismissed – Consideration of the test for summary dismissal and role of an associate judge – Magistrates’ Court Act 1989, s 109 – Supreme Court (General Civil Procedure) Rules 2005, r 58.10(8).

---

APPEARANCES:	Counsel	Solicitors
The First Appellant appeared in person for both appellants
For the Respondents	Mr A J Silver	Septimus Jones & Lee

TABLE OF CONTENTS

Introduction and summary............................................................................................................... 2

Proceeding in the Magistrates’ Court............................................................................................. 4

Magistrate’s judgment.................................................................................................................. 7

Appeal.................................................................................................................................................. 9

Approach to consideration of the appeal for summary dismissal........................................ 9
The construction of special condition 4................................................................................... 12
Notice of appeal.......................................................................................................................... 15
Construction of special condition 4: does it concern quantum only?....................... 16
Grounds related to the construction of special condition 4........................................ 18
The whole or part of the stock?....................................................................................... 19
No written reasons............................................................................................................ 22

Conclusion and orders.................................................................................................................... 23

HER HONOUR:

Introduction and summary

The respondents seek summary dismissal of an appeal commenced by the appellants by notice of appeal filed 1 August 2014. In the appeal, the appellants seek to appeal an order made by Magistrate G. McNamara at Ringwood Magistrates’ Court on 4 July 2014. By that order the Magistrate dismissed the appellants’ (then plaintiffs) claim against the respondents (then defendants) and ordered the plaintiffs to pay the defendants’ costs fixed in the sum of $13,659.00.

The respondents seek summary dismissal of the appeal pursuant to r 58.10(8) of the Supreme Court (General Civil Procedure) Rules 2005 (‘the Rules’). That rule provides that at the directions hearing before an Associate Judge for directions on an appeal:

(8) The Associate Judge may dismiss the appeal if satisfied that—
(a)the notice of appeal does not identify sufficiently or at all a question of law on which the appeal may be brought;
(b)the appellant does not have an arguable case on appeal or to refuse leave would impose no substantial injustice; or
(c)the appeal is frivolous, vexatious or otherwise an abuse of the process of the Court.

In Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd[1] the Court of Appeal held that a court must take a cautious approach to summary dismissal, and should not summarily dismiss a proceeding unless it is clear that there is no real question to be tried.[2] That case was concerned expressly…

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 Harris v Kennedy

Details

AGLC: Harris v Kennedy [2015] VSC 1
Case: [2015] VSC 1
Decision Date: 16 January 2015

CaseChat Overview and Summary

The appeal before the court was brought by the appellants, Harris, against the respondents, Kennedy, concerning a decision made by the Magistrates’ Court of Victoria. The original case involved a dispute over the enforceability of a mortgage agreement. The respondents had applied for summary dismissal of the appellants' claims, which the appellants sought to oppose on the grounds that there was an arguable question of law. The appellants also attempted to introduce new arguments that had not been previously raised in their submissions.

The central legal issue the court had to address was whether the appellants' application to oppose the summary dismissal was valid, particularly concerning the introduction of new arguments. The court also had to consider whether the appellants' grounds for opposing the summary dismissal constituted a new cause of action, and if so, whether this could be grounds for dismissing their application. Another critical aspect was whether the test for summary dismissal had been properly applied and whether the associate judge's role was correctly understood in this context.

The court held that the appellants' application was arguable, but their attempt to introduce new arguments was impermissible as it did not constitute a new cause of action. However, the court found that the notice of appeal was flawed, which led to the striking out of the questions and grounds with leave to re-plead rather than outright dismissal. The court also clarified the test for summary dismissal and the role of an associate judge, referencing relevant sections of the Magistrates’ Court Act 1989 and the Supreme Court (General Civil Procedure) Rules 2005. The court determined that while the application was largely refused, the procedural errors warranted a specific course of action allowing the appellants to correct their submissions.

In conclusion, the court largely refused the appellants' application for opposing the summary dismissal but allowed them to correct their procedural errors by striking out the questions and grounds with leave to re-plead. The court also provided guidance on the applicable legal standards and the associate judge's role in such proceedings.

Orders