MacDonald v Grundy - [2024] VSC 383

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S ECI 2023 01026
S ECI 2023 01027

BETWEEN:	S ECI 2023 01026
MARK MACDONALD	Applicant
v
TERENCE GRUNDY (PRACTISING AS T F GRUNDY LAWYER)	First Respondent
KARIN MALCOLM	Second Respondent
MICHAEL WRIGHT (PRACTISING AS WRIGHTWAY LEGAL)	Third Respondent

AND

BETWEEN:	S ECI 2023 01027
MARK MACDONALD	Applicant
v
TERENCE GRUNDY (PRACTISING AS T F GRUNDY LAWYER)	First Respondent
KEVIN JONES	Second Respondent

---

JUDGE:	Ginnane J
WHERE HELD:	Melbourne
DATE OF HEARING:	29 February, 1 March 2024
DATE OF JUDGMENT:	3 July 2024
CASE MAY BE CITED AS:	MacDonald v Grundy
MEDIUM NEUTRAL CITATION:	[2024] VSC 383

---

APPEAL – Orders of Judicial Registrar – Self-executing orders dismissing proceedings for failure to provide transcripts in appeals from Magistrates’ Court orders – Appeal out of time – Whether explanation for delay – Whether discretion to extend time should be exercised – Whether utility in granting extensions of time – Appeals from Magistrates’ Court orders on questions of law out of time – Prospects of applicant establishing exceptional circumstances to obtain extensions of time to appeal Magistrates’ Court orders – Whether explanations for delay – Prospects of appeals succeeding – Exercise of discretion to grant extensions of time – Appeals from Judicial Registrar’s orders dismissed – Magistrates’ Court Act 1989 s 109; Legal Profession Uniform Law Application Act 2014 s 174; Supreme Court (General Civil Procedure) Rules rr 24.06, 58.09, 58.10(9) 84.06, 84.09, 84.10.

---

APPEARANCES:	Counsel	Solicitors
For the Applicant	In person
For the First Respondent in proceedings S ECI 2023 01026 and for the First and Second Respondents in proceedings S ECI 2023 01027	Mr A Campbell	T F Grundy Lawyer

HIS HONOUR:

Introduction

Mr Mark MacDonald appeals from orders made by a Judicial Registrar on 12 July and 23 August 2023, including self-executing orders which resulted in these two proceedings being dismissed. The underlying dispute is between lawyers and a former client. The Judicial Registrar’s orders were made in the present proceedings in which Mr MacDonald sought to appeal orders made in two Magistrates’ Court proceedings. He commenced his appeals against the Magistrates’ Court orders out of time. He also commenced his appeal against the Judicial Registrar’s orders of 12 July 2023 out of time. The first Magistrates’ Court proceeding concerned a dispute about a sum of money which is being held in a solicitor’s trust account, which proceeding I will often refer to as the ‘sum of money proceeding’. The second Magistrates’ Court proceeding concerned a claim by lawyers for fees and disbursements for representing Mr MacDonald in a case in the Victorian Civil and Administrative Tribunal (‘VCAT’), which proceeding I will often refer to as the ‘legal fees proceeding’. As I explain, in order to decide the two appeals against the Judicial Registrar’s orders I must, in the case of the orders of 12 July 2023 in which Mr MacDonald requires an extension of time, also consider his…

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 MacDonald v Grundy

Details

AGLC: MacDonald v Grundy [2024] VSC 383
Case: [2024] VSC 383
Decision Date: 3 July 2024

CaseChat Overview and Summary

The appeal was brought by MacDonald against the decisions of Grundy, who was a Judicial Registrar of the Supreme Court of Victoria. MacDonald sought to challenge the self-executing orders made by Grundy, which dismissed his appeals from Magistrates’ Court orders for failure to provide transcripts. The primary legal issues for the court to address were whether there was a satisfactory explanation for the delay in filing the appeals, whether the discretion to extend time should be exercised, and the utility of granting such extensions. Additionally, the court considered whether MacDonald’s appeals from the Magistrates’ Court orders on questions of law were out of time, and if there was a prospect of him establishing exceptional circumstances to obtain extensions of time. The court also examined the prospects of the appeals succeeding and whether it should exercise its discretion to grant extensions of time.

The court found that there was no satisfactory explanation for MacDonald’s delay in filing his appeals. The court noted that the delay in filing the appeals undermined the integrity of the judicial process. Furthermore, the court concluded that granting extensions of time would not be in the interests of justice. The court found that the appeals were not filed within the requisite time and there was no satisfactory explanation for the delay. The court held that there were no exceptional circumstances to warrant an extension of time and that the appeals were unlikely to succeed. Consequently, the court dismissed the appeals from the Judicial Registrar’s orders.

In light of the court's findings, the appeal from the Judicial Registrar’s orders was dismissed. The court held that the prospects of the appeals from the Magistrates’ Court orders succeeding were negligible. The court found that there were no exceptional circumstances that warranted an extension of time. The court further held that granting extensions of time in such circumstances would not serve the interests of justice. Consequently, the court dismissed the appeal from the Judicial Registrar’s orders and affirmed the orders made by the Judicial Registrar.

Orders