JUDGE:	McDonald J
WHERE HELD:	Melbourne
DATES OF HEARING:	25 and 26 July 2017
DATE OF JUDGMENT:	14 August 2017
CASE MAY BE CITED AS:	Mako’ochieng v Kirk
MEDIUM NEUTRAL CITATION:	[2017] VSC 459

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APPEAL – Leave to appeal from order of Magistrates’ Court – Failure to appeal within prescribed 30 day period due to exceptional circumstances – Further delay of 60 days prior to filing notice of appeal – No legitimate reason for failure to file notice of appeal during period of 5 weeks prior to filing – Grounds of appeal included baseless allegations of fraudulent conduct – Grounds of appeal with no reasonable prospects of success – Application for leave to appeal dismissed – Magistrates’ Court Act 1989 s 109(4), (5) – Civil Procedure Act 2010 s 18(d).

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APPEARANCES:	Counsel	Solicitors
For the Applicant	In person
For the Respondent	Mr P Willis QC	J R Morrow

HIS HONOUR:

The question which arises in the current proceeding is whether the Court should exercise the discretion to grant leave to appeal in circumstances where:

(i) the failure to file a notice of appeal within 30 days of judgment (17 June 2016) was due to exceptional circumstances;

(ii) the applicant for leave to appeal filed a notice of appeal 62 days outside of the prescribed 30 day period; and

(iii) there were no exceptional circumstances operative during the 35 days prior to the date on which the notice of appeal was actually filed (20 September 2016)?

The current application for leave to appeal arises out of a 26 day hearing which commenced in April 2015 and concluded in February 2016. The subject matter of the proceeding at first instance was the respondent’s claim for payment of a debt arising from five loans. On 3 June 2016, Magistrate Goldberg delivered judgment, finding in favour of the respondent.[1] This finding was subject to final determination of the amounts owed to the respondent, including interest. On 17 June 2016, his Honour entered judgment in favour of the respondent. The Court ordered, inter alia, that the applicant, together with a company of which he was a director (The Big Apple Group Pty Ltd):

(i)were jointly liable to pay the respondent the sum of $10,672.38;
(ii)were jointly liable to pay the respondent’s costs fixed in the sum of $166,343.05.[2]

[1]See Transcript of Proceedings, Kirk v Sinclair (Magistrates’ Court of Victoria, D11624070, Magistrate Goldberg, 3 June 2016).

[2]Order of the Honourable Magistrate Goldberg dated 17 June 2016.

The certified extract of the Court’s orders dated 17 June 2016 incorrectly described the orders as having been made by consent. Plainly, this was a slip. An amended order was issued on 11 August 2016.

The applicant’s proposed notice of appeal is dated 19 September 2016, but was filed on 20 September 2016.

Section 109 of…

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 Mako'ochieng v Kirk

Details

AGLC: Mako'ochieng v Kirk [2017] VSC 459
Case: [2017] VSC 459
Decision Date: 14 August 2017

CaseChat Overview and Summary

In the case of Mako'ochieng v Kirk, the applicant sought leave to appeal a decision of the Magistrates' Court of Victoria, which had been rendered in favour of the respondent. The applicant argued that the court had made errors of law, and sought to appeal the decision on the basis of these alleged errors. The court was required to decide whether leave to appeal should be granted, and if so, whether the applicant's grounds for appeal had reasonable prospects of success.

The court found that the applicant had failed to file a notice of appeal within the prescribed 30 day period, due to exceptional circumstances. However, the applicant had not filed the notice of appeal until 60 days had elapsed since the decision, and provided no legitimate reason for the delay. The court found that the applicant's grounds for appeal were baseless and lacked any reasonable prospects of success. In particular, the court found that the applicant's allegation of fraudulent conduct by the respondent was without merit. The court held that the application for leave to appeal should be dismissed, pursuant to section 109(4) and (5) of the Magistrates' Court Act 1989 and section 18(d) of the Civil Procedure Act 2010.

The court dismissed the applicant's application for leave to appeal, and made no orders as to costs.

Orders