Miao v Body Corporate SP31235U - [2013] VSC 380

Do Not Send for Reporting
IN THE SUPREME COURT OF VICTORIA		Not Restricted

AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEAL LIST

S CI 2012 04767

SHIRLEY MIAO	Plaintiff
v
BODY CORPORATE SP31235U	Defendant

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JUDGE:	DERHAM AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	31 January 2013
DATE OF JUDGMENT:	30 July 2013
CASE MAY BE CITED AS:	Miao v Body Corporate SP31235U
MEDIUM NEUTRAL CITATION:	[2013] VSC 380

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PRACTICE AND PROCEDURE – application pursuant to rule 46.08 or the inherent jurisdiction to set aside orders made but not authenticated dismissing appeal from Magistrates’ Court – plaintiff self represented litigant - orders made when plaintiff failed to appear on adjourned date – plaintiff notified of wrong Court to attend – plaintiff attended Court premises on the day of the hearing but could not find the right court – orders made in her absence dismissing appeal for non-appearance and pursuant to s 63 of the Civil Procedure Act 2010 for lack of merit – orders set aside.

APPEALS –to Supreme Court from Magistrates’ Court - application for leave to appeal decision of Magistrates Court out of time – exceptional circumstances required - scope of inquiry limited to circumstances causing failure to lodge appeal in time – no exceptional circumstances shown - s 109 Magistrates’ Court Act 1989.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	The plaintiff in person
For the Defendant	Mr J. Willee	Mills Oakley

HIS HONOUR:

Introduction

By Notice of Appeal and Summons filed on 20 August 2012, the plaintiff (“Ms Miao”) applied pursuant to s 109 of the Magistrates’ Court Act 1989 (Vic) (“the Act”) for orders:

(a) That leave be granted to appeal out of time against the final orders made by Magistrate Grinberg in the Magistrates’ Court of Victoria at Sunshine on 18 June 2012; and

(b) that a stay of the execution of the orders below be granted, pending the determination of this appeal.

By Order made on 10 September 2012, Associate Justice Mukhtar ordered, inter alia, that until further order there be a stay of the order made by the Magistrates’ Court at Sunshine (constituted by Magistrate Grinberg) in case no. U00919045, and adjourned the summons to 24 October 2012.

On 24 October 2012, Ms Miao failed to attend the adjourned hearing of the Summons. Associate Justice Lansdowne made the following orders (although they were not authenticated):

(a) The appeal is dismissed both for non-appearance and on a summary basis pursuant to s 63 of the Civil Procedure Act for lack of merit;

(b) The plaintiff’s summons filed 20 August 2012 is dismissed on the same bases;

(c) The plaintiff pay the defendant’s costs of the proceeding on a solicitor/client basis; and

(d) The stay of enforcement of the order of the Magistrates’ Court at Sunshine made 18 June 2012 is discharged.

These orders were not authenticated, by direction of Associate Justice Lansdowne, because, as a result of Ms Miao being informed by email of the orders made…

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: [2013] VSC 380
Decision Date: 30 July 2013

CaseChat Overview and Summary

In the case of Miao v Body Corporate SP31235U, the plaintiff, Miao, sought to set aside orders that dismissed her appeal against the defendant, Body Corporate SP31235U, from the Magistrates’ Court. The plaintiff, who was self-represented, was not present at the hearing of her appeal before the Supreme Court due to a notification error. The plaintiff attended the court premises on the scheduled date but was unable to locate the correct courtroom. Consequently, orders were made in her absence dismissing her appeal on the grounds of non-appearance and for lack of merit under section 63 of the Civil Procedure Act 2010. Miao applied to the Supreme Court to set aside these orders, invoking either rule 46.08 or the court’s inherent jurisdiction.

The primary legal issues in this case were whether the orders dismissing Miao’s appeal could be set aside and whether she could be granted leave to appeal the Magistrates’ Court decision out of time. The court had to determine if there were exceptional circumstances justifying the late application to set aside the orders and whether there were exceptional circumstances that explained Miao’s failure to lodge her appeal within the prescribed time limit. The court noted that the scope of inquiry was limited to the circumstances that caused Miao's failure to lodge the appeal in time and whether those circumstances constituted exceptional circumstances under the relevant statutory provisions.

The court held that Miao had not demonstrated any exceptional circumstances that warranted setting aside the orders made in her absence. It was noted that Miao, as a self-represented litigant, should have taken reasonable steps to ensure she attended the correct court on the scheduled date. The court also found that Miao had not provided a satisfactory explanation for her failure to lodge the appeal within the stipulated time frame, and thus, no exceptional circumstances existed to grant leave to appeal out of time. Consequently, Miao’s application to set aside the orders and her application for leave to appeal were both dismissed.

Orders