Luck v Renton - [2006] VSC 90

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 8169 of 2005

ALEX LUCK	Appellant
v
KEVIN RENTON & ORS	Respondents

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JUDGE:	Bongiorno J
WHERE HELD:	Melbourne
DATE OF HEARING:	27 February 2006
DATE OF JUDGMENT:	27 February 2006
CASE MAY BE CITED AS:	Luck v Renton
MEDIUM NEUTRAL CITATION:	[2006] VSC 90

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Appeal from order of a Master – Refusal to identify error of law in respect of a VCAT member’s ruling as to an adjournment – No substantive right affected – No apparent error of law – Unrepresented litigants - Appeal dismissed with costs - Luck v Renton [2005] VSCA 210.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	The appellant appeared on her own behalf.
For the Firstnamed Respondent	The respondent appeared on his own behalf.

HIS HONOUR:

This matter was an appeal from an order of Senior Master Mahony of 5 October 2005 dismissing an application for leave to appeal from a ruling of a member of VCAT. The ruling sought to be appealed was a ruling on 2 September 2005 that a hearing in which the now appellant was a respondent in the Residential Tenancies List be adjourned so that she could have the proceeding recorded; that is to say the now appellant was seeking leave from Senior Master Mahony to appeal a ruling which it appears she had sought and obtained.

Ms Luck appeared in person as did Mr Renton, one of the respondents. The other respondents did not appear. Ms Luck made a preliminary application for an adjournment based on the fact that VCAT had not appeared at today's hearing. That application was refused as VCAT had notified the Court of its submission to any order the Court may make so that its presence was not required. Ms Luck sought to canvass the ruling refusing an adjournment in an aggressive manner, demonstrated by her voice, demeanour, stance and body language.

The appellant was then invited to address the court on the appeal from Senior Master Mahony and, in particular, to identify the question of law in respect of which the VCAT member was in error. Ms Luck refused to do this, insisting that she wished to attack Senior Master Mahony’s ruling. She commenced to shout. She was given the opportunity again to enunciate the relevant question of law but again refused to do so. She appeared to become hysterical and said she was ill. She again requested an adjournment. I was satisfied that she was not ill. Her aggressive, truculent manner had not changed, nor had her demeanour or attitude, since she commenced addressing the Court, and particularly since her initial application for an adjournment on the ground of VCAT’s non-attendance was refused. I am also satisfied that her feigned illness was merely a purported justification for not wishing to proceed with her appeal from Senior Master Mahony for some unstated reason. The adjournment application was again refused.

The appellant was then again invited to identify…

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 Luck v Renton

Details

AGLC: Luck v Renton [2006] VSC 90
Case: [2006] VSC 90
Decision Date: 27 February 2006

CaseChat Overview and Summary

Luck and Renton appealed an order of the Master regarding the refusal to identify an error of law in respect of a Victorian Civil and Administrative Tribunal (VCAT) member's ruling on an adjournment. The dispute arose from proceedings in the Magistrates' Court of Victoria, where the appellants sought an adjournment of a matter. VCAT subsequently dismissed the application, and the appellants sought leave to appeal to the Supreme Court. The Master refused leave, finding no substantive right was affected and no apparent error of law was made by the VCAT member.

The central legal issue before the Court of Appeal was whether the Master had correctly refused to identify an error of law in the VCAT member's decision to dismiss the application for an adjournment. The appellants argued that the VCAT member had erred in law by failing to consider all relevant factors when determining the application. The Court had to assess whether the Master's decision to refuse leave to appeal was correct and whether there was any apparent error of law in the VCAT member's ruling.

The Court of Appeal held that the Master's decision was correct. The appellants, who were unrepresented, did not demonstrate that any substantive right was affected by the VCAT member's decision. Furthermore, the Court found no apparent error of law in the VCAT member's consideration of the application for an adjournment. The Court held that the VCAT member had appropriately exercised their discretion in dismissing the application. As a result, the appeal was dismissed with costs awarded against the appellants.

No further orders were made by the Court. The appeal was dismissed, and the costs of the appeal were awarded against the appellants.

Orders