Lobo v D'Sousa - [2019] VSC 518

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST

S ECI 2019 01757

RAYMOND LOBO	Appellant
v
ESTEPHANIA HARRIET D’SOUSA	Respondent

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JUDGE:	Lansdowne AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	29 July 2019
DATE OF JUDGMENT:	29 July 2019
DATE OF WRITTEN REASONS:	2 August 2019
CASE MAY BE CITED AS:	Lobo v D’Sousa
MEDIUM NEUTRAL CITATION:	[2019] VSC 518

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APPEAL – Appeal from the Magistrate’s Court pursuant to s 109 of the Magistrates’ Court Act 1989 (Vic) – Whether the order sought to be appealed is a final order – Held no – Appeal dismissed – Hall v Nominal Defendant (1966) 117 CLR 423 applied.

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APPEARANCES:	Counsel	Solicitors
The appellant appeared in person
For the respondent	Ms C Sparke	Vernon Da Gama and Associates

HER HONOUR:

Introduction

These reasons concern an application to summarily dismiss an appeal. The appeal is sought to be made pursuant to s 109 of the Magistrates’ Court Act 1989 (Vic) (‘MCA’). That section provides for appeal to this Court on a question of law from a final order of the Magistrates’ Court in a civil proceeding. The order in question was made on 22 March 2019 in the Magistrates’ Court, in proceedings which were commenced a number of years before that.

I granted the application for summary dismissal at the conclusion of the hearing on 29 July 2019, giving brief oral reasons at the time. I indicated that I would elaborate those reasons and provide them in written form. These are my elaborated reasons. Where appropriate I have retained the present tense and the more informal style of oral reasons.

The respondent contends for two reasons that this proceeding should be summarily dismissed. First, on the basis that the order in question is not a final order. Secondly, on the basis that the alleged errors articulated in the Notice of Appeal are not errors of law and/or were not the basis on which the order was made.

It is only appropriate for this Court to consider the second of those grounds if the first fails. This is because if the first contention succeeds, that is, that the order that is sought to be appealed is not a final order in the legal sense, then this Court has no jurisdiction to hear the appeal. It follows that it would not be appropriate to go on and consider the alleged errors of law.

For the reasons that I now give, I consider that the respondent has established that the order made by the Magistrates’ Court is not a final order in the sense required by the law, and for that reason the appeal should be dismissed. It follows that I do not address the second ground advanced by the respondent for summary dismissal of the appeal.

Consideration
Legal principles

Section 109 of the MCA provides as follows:

109 Appeal to Supreme Court from final order made in civil proceeding
(1)A party to…

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.

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Details

Case: [2019] VSC 518
Decision Date: 29 July 2019

CaseChat Overview and Summary

The case of Lobo v D'Sousa involved an appeal against a decision made by the Magistrate’s Court. The appeal was brought under section 109 of the Magistrates’ Court Act 1989 (Vic), with the primary issue being whether the order sought to be appealed constituted a final order. The respondent in the matter, D’Sousa, argued that the order was not final and therefore the appeal was not admissible. The appellant, Lobo, sought to overturn the Magistrate’s Court decision on the grounds that the order was indeed final.

The legal issue that the court was required to decide was whether the order appealed from was a final order for the purposes of an appeal under section 109 of the Magistrates’ Court Act 1989 (Vic). The court had to consider the definition of a final order and whether the order in question met that definition. This required an examination of the nature and effect of the order, as well as its implications for any potential further proceedings.

The court examined the case of Hall v Nominal Defendant (1966) 117 CLR 423, which provided guidance on the criteria for determining whether an order is final. The court found that the order in the present case did not conclude the substantive rights of the parties or the matters in dispute, and therefore did not meet the criteria for a final order. As a result, the appeal was dismissed, as the order was not considered to be final for the purposes of an appeal under section 109 of the Magistrates’ Court Act 1989 (Vic).

The court did not make any further orders beyond dismissing the appeal. The decision reinforced the importance of correctly identifying the nature of orders in the context of appeals, and highlighted the need for a clear understanding of the legal framework governing such appeals.

Orders