Neely v Southern Cross Feeds Pty Ltd - [2013] VSC 152

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

AT MELBOURNE

JUDICIAL APPEALS AND REVIEWS

S CI 2012 3713

ROBERT LEE NEELY	Plaintiff
v
SOUTHERN CROSS FEEDS PTY LTD (ACN 907 172 855)	Defendant

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JUDGE:	LANSDOWNE AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	20 August 2012
DATE OF JUDGMENT:	8 April 2013
CASE MAY BE CITED AS:	Neely v Southern Cross Feeds Pty Ltd
MEDIUM NEUTRAL CITATION:	[2013] VSC 152

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PRACTICE AND PROCEDURE – appeal from civil orders in Magistrates’ Court – application for summary dismissal - whether interlocutory order which is “involved in” the final order may be appealed after the final order - whether extension of time required – how notice of appeal against such interlocutory order to be drawn – question of law based on incorrect characterisation of findings below not a question of law on which appeal may be brought– distinction between “arguable case on appeal” and arguable error of law - summary dismissal granted – Magistrates’ Court Act 1989 s. 109 – Supreme Court (General Civil Procedure) Rules 2005 r. 58.10(8).

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr P.T. Nugent	Dimos Lawyers
For the Defendant	Mr G.A. Devries	Hill Legal

TABLE OF CONTENTS

Introduction and summary............................................................................................................... 2

Evidence and decision below.......................................................................................................... 5

Notice of Appeal................................................................................................................................. 9

Submissions...................................................................................................................................... 10

Discussion.......................................................................................................................................... 11

Question of Law 1: is the appeal against grant of leave to amend the statement of claim competent?........................................................................................................................................................ 11
Question of Law 2: alleged error of law in the application of the law of agency............. 14
Question of Law 1: should the appeal on the basis of this Question be dismissed?....... 14

Conclusion......................................................................................................................................... 17

HER HONOUR:

Introduction and summary

The application before me is for summary dismissal of an appeal brought pursuant to s 109 of the Magistrates’ Court Act 1989 (the “Magistrates’ Court Act”) against orders made in the Magistrates’ Court at Frankston. The parties have referred to themselves throughout as plaintiff and defendant rather than appellant and respondent. For ease of comparison with the case below, where their roles were reversed, I will call the parties when I refer to them in these proceedings by their names (“Mr Neely” and “Southern Cross Feeds” respectively) and when I refer to them in the case below by their role (second defendant and plaintiff respectively) in that case.

Section 109 of the Magistrates’ Court Act provides:

(1)A party to a civil proceeding in the Court may appeal to the Supreme Court, on a question of law, from a final order of the Court in the proceeding.
(2)An appeal under sub-section (1) –
(a)must be instituted not later than 30 days after the day on which the order complained of was made; and
(b)does not operate as a stay of any order made by the Court unless the Supreme Court so orders.

(3)Subject to sub-section (2), an appeal under sub-section (1) must be brought in accordance with the rules of the Supreme Court.
(4)An appeal instituted after the end 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.

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Details

Case: [2013] VSC 152
Decision Date: 8 April 2013

CaseChat Overview and Summary

Neely, the plaintiff, brought a claim against Southern Cross Feeds, the defendant, in the Magistrates' Court, alleging damages for defamation. Southern Cross Feeds sought to have the claim summarily dismissed, and the Magistrates' Court granted the application. Neely now appeals to the Supreme Court against the order for summary dismissal. The court was required to decide whether the interlocutory order could be appealed after the final order, whether an extension of time was required, and how the notice of appeal should be drawn. The court also needed to consider the distinction between an arguable case on appeal and an arguable error of law. The court found that the interlocutory order was not "involved in" the final order and thus could not be appealed after the final order. The court held that an extension of time was not required as the appeal was not dependent on the interlocutory order. The court also noted that the notice of appeal against the interlocutory order should be drawn in accordance with the Supreme Court (General Civil Procedure) Rules 2005. The court found that the question of law based on an incorrect characterisation of the findings below was not a question of law on which appeal may be brought. Finally, the court held that there was a distinction between an "arguable case on appeal" and an arguable error of law. The court found that the appeal did not present an arguable case on appeal, and therefore granted the application for summary dismissal. The court also noted that the appeal was based on an incorrect characterisation of the findings below and thus was not a question of law on which appeal may be brought. The court dismissed the appeal and affirmed the decision of the Magistrates' Court.

Orders