Hoe v Lennox - [2020] VSC 262

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S CI 2018 03013

ALEX HOE	Appellant
v
LESLEY LENNOX	Respondent

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JUDGE:	Forbes J
WHERE HELD:	Melbourne
DATE OF HEARING:	19 March 2020 Submissions dated 16 April 2020 and 29 April 2020
DATE OF JUDGMENT:	13 May 2020
CASE MAY BE CITED AS:	Hoe v Lennox
MEDIUM NEUTRAL CITATION:	[2020] VSC 262

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JUDICIAL REVIEW – Appeal from orders of the Magistrates’ Court – s 109 Magistrates Court Act 1989 – Claim struck out pursuant to order 23.02 of Magistrates’ Court General Civil Procedure Rules2010 – Unilateral communication to the court to obtain a dismissal of proceeding rather than a strike out as previously ordered – Denial of procedural fairness - Orders quashed – Order striking out proceeding remains.

COSTS – Self-represented litigant – No entitlement to recover cost of time spent by non-legal practitioner in preparation and presentation of case – Cachia v Hanes (1994) 179 CLR 403 – Disbursements recoverable – Section 24 Supreme Court Act 1986; Order 63 Supreme Court (General Civil Procedure) Rules 2015.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	In person
For the Respondent	Mr F. Hill, LFS Legal

HER HONOUR:

This ruling deals principally with the costs of a successful appeal by Mr Hoe from orders made by the Magistrates’ Court. He had filed a civil complaint claiming loss and damage as a result of being called a scammer. This arose out of a contractual dispute where Mr Hoe said he held instructions from a number of the owners to take over management of the owners corporation of premises at 26A Audsley Street, Clayton South. The respondent, an employee of the existing owners’ corporation management, emailed all owners a concern that Mr Hoe’s approach to them might be that of a scammer.

Mr Hoe was self-represented in his Magistrates’ Court hearing. He faced a strike out application under Order 23.02 of Magistrates’ Court General Civil Procedure Rules 2010 (‘the Rules’) on the basis that his pleadings disclosed no cause of action. The strike out application was successful and orders were made striking out the appellant’s claim and ordering costs of the application in a fixed sum. Mr Hoe was provided with a copy of these orders (‘Order A’).[1]
[1]Order of Judicial Registrar R. Andrew in Alex Hoe v Lesley Lennox (Magistrates’ Court, H11245616), 20 November 2017, during the appeal this order was referred to as ‘Order A’.

After this the solicitors for the respondent approached the Magistrates’ Court for an amendment to the orders. That amendment related to an error as to the amount of the fixed sum costs in the order. The sum had failed to allow for a 25% uplift on the scale fees. This uplift had been asked for on the basis of an offer of compromise that had been made. The uplift was granted by the Magistrate at the hearing. A second order was then issued dated 19 December…

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 Hoe v Lennox

Details

AGLC: Hoe v Lennox [2020] VSC 262
Case: [2020] VSC 262
Decision Date: 13 May 2020

CaseChat Overview and Summary

The appeal in Hoe v Lennox concerned the actions of a self-represented plaintiff who sought to challenge the decision of the Magistrates’ Court to strike out their proceeding. The plaintiff had initially sought an order for possession of property and an injunction to prevent the defendant from interfering with their occupation of the property. The Magistrates’ Court ultimately struck out the proceeding, and the plaintiff sought judicial review of that decision. The court was required to determine whether the striking out of the proceeding was valid and whether the plaintiff was entitled to costs.

The court found that the striking out of the proceeding was valid, but the manner in which it was obtained was problematic. The plaintiff had communicated unilaterally with the court to obtain the dismissal of the proceeding, rather than seeking a strike out as previously ordered. The court found that this amounted to a denial of procedural fairness, and quashed the orders. However, the court found that the order striking out the proceeding remained valid.

The court also considered the plaintiff's application for costs. The plaintiff argued that they were entitled to recover the cost of time spent by a non-legal practitioner in preparing and presenting their case. The court found that this was not permissible under Cachia v Hanes (1994) 179 CLR 403, and that the plaintiff was only entitled to recover disbursements under section 24 of the Supreme Court Act 1986 and Order 63 of the Supreme Court (General Civil Procedure) Rules 2015.

The court quashed the orders obtained by the plaintiff's unilateral communication with the court, but found that the order striking out the proceeding remained valid. The court also found that the plaintiff was not entitled to recover the cost of time spent by a non-legal practitioner, but was entitled to recover disbursements.

Orders