Nida v Bka Practice Co Pty Ltd - [2020] VSC 158

IN THE SUPREME COURT OF VICTORIA AT MELBOURNE

Not Restricted

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S ECI 2019 02232

ROONA FAZAL NIDA	Plaintiff
- and -
BKA PRACTICE CO PTY LTD (trading as Belleli King & Associates)	First Defendant
- and -
THE MAGISTRATES’ COURT OF VICTORIA	Second Defendant

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JUDGE:	Mukhtar AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	19, 20 September 2019
DATE OF JUDGMENT:	3 April 2020
CASE MAY BE CITED AS:	Nida v BKA Practice Co Pty Ltd
MEDIUM NEUTRAL CITATION:	[2020] VSC 158

JUDICIAL REVIEW — Civil proceeding in Magistrates’ Court against barrister for personal debt — Dubious application for adjournment of trial — Magistrate’s disclosure of unfavourable view of barrister based on past experience — Adjournment with costs order against barrister and self-executing consequences for non-payment of costs — Non-compliance with costs order — 60-day time limit to commence judicial review of costs order in Supreme Court — Inordinate delay and misguided applications by barrister in Magistrates’ Court before commencing application for judicial review — Requirement to show ‘special circumstances’ to obtain extension of time — Strength of evidence explaining delay — Weight to be given to prospects of success of quashing Magistrate’s order for jurisdictional error — Balance of justice — Extension of time refused — Supreme Court (General Civil Procedure) Rules 2015 r 56.02(3)

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	R M McGarvie QC with D K Carlile	NOH Legal Pty Ltd
For the Defendant	J Searle	Belleli King & Associates

HIS HONOUR:

The plaintiff, Roona Fazal Nida (also known as Roona Fazal), is a barrister practising at the Victorian Bar. According to her Victorian Bar profile, she was admitted to practice on 15 November 2005, signed the Roll of Counsel on 9 November 2006 and is a Nationally Accredited Mediator. Some publicity materials on the internet, as were exhibited by the first defendant, has her holding herself out as ‘Founder’ and ‘Senior Partner, CEO’ of United Chambers Lawyers and Barristers in Foster Street, Dandenong and who ‘has also won 90% of law cases’.

Ms Nida seeks judicial review and a quashing of four interlocutory orders made against her over four separate occasions in civil proceeding brought against her in the Magistrates’ Court by a law firm (‘the Firm’) in Dandenong, namely Belleli King & Associates. The Complaint in the Magistrates’ Court against her was filed in September 2016. It was a claim in debt for $15,265.41 referable to seven unpaid invoices rendered by the Firm to Ms Nida as client for work done between December 2014 and June 2015. Each invoice was for professional legal services provided at her request to enable the purchase of a franchised ‘Sports Co’ retail store in Mornington to be operated by her son. The tasks for which the Firm claimed it was retained included: negotiating with the vendor the sale of the business; negotiating a new franchise agreement with the franchisor; and obtaining an assignment of the retail lease.…

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: [2020] VSC 158
Decision Date: 3 April 2020

CaseChat Overview and Summary

In the case of Nida v Bka Practice Co Pty Ltd, the plaintiff sought to recover a personal debt from the defendant, a barrister, in the Magistrates’ Court. The dispute arose when the defendant applied for an adjournment of the trial, which was denied by the Magistrate. The Magistrate's decision was influenced by a prior experience with the defendant and was accompanied by an order for the defendant to pay costs. When the defendant failed to comply with this order, the plaintiff sought to enforce it in the Supreme Court. The defendant's application for judicial review, however, was filed beyond the 60-day limit stipulated by the Supreme Court (General Civil Procedure) Rules 2015 r 56.02(3). The defendant attempted to justify the delay through various applications in the Magistrates’ Court, which were ultimately unsuccessful. The court held that for an extension of time to be granted, the defendant must demonstrate special circumstances and a reasonable prospect of success in quashing the Magistrate's order. Given the inordinate delay and the unsuccessful attempts to justify it, the court found that the defendant did not meet these criteria.

The primary legal issues in this case revolved around the enforceability of the costs order and the applicability of the 60-day time limit for judicial review under the Supreme Court Rules. The defendant argued that the Magistrate's order was flawed due to procedural unfairness, which warranted judicial review beyond the statutory time limit. The court was required to determine whether the defendant had provided a compelling explanation for the delay and whether the prospects of success in quashing the order justified extending the time limit. The court's analysis focused on the strength of the evidence provided by the defendant to justify the delay, the likelihood of success in overturning the Magistrate's order, and the overall balance of justice.

The court ruled that the defendant had not demonstrated special circumstances sufficient to warrant an extension of time for the judicial review application. The evidence provided to justify the delay was found to be inadequate, and the prospects of success in overturning the Magistrate's order were deemed insufficient. The court emphasised that the balance of justice weighed against granting an extension, as the defendant had not acted promptly and reasonably in seeking judicial review. Consequently, the application for an extension of time was dismissed, and the defendant was held to the 60-day time limit for commencing judicial review. The court's decision underscored the importance of adhering to procedural rules and the high threshold for obtaining extensions in judicial review applications.

Orders