Nida v Bka Practice Co Pty Ltd (No 2) - [2020] VSC 770

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S ECI 2019 02232

ROONA FAZAL NIDA	Plaintiff
v
BKA PRACTICE CO PTY LTD	First Defendant
MAGISTRATES’ COURT OF VICTORIA	Second Defendant

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JUDGE:	Ginnane J
WHERE HELD:	Melbourne
DATE OF HEARING:	12 May 2020
DATE OF JUDGMENT:	20 November 2020
CASE MAY BE CITED AS:	Nida v BKA Practice Co Pty Ltd (No 2)
MEDIUM NEUTRAL CITATION:	[2020] VSC 770

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ADMINISTRATIVE LAW – Judicial review – Appeal from Associate Justice’s orders – Application for extension of time to commence proceeding – ‘Special circumstances’ – Whether ‘special circumstances’ existed – Explanation for delay -Whether Associate Justice failed to consider relevant matters – Whether Associate Justice reached an unreasonable conclusion – Whether Associate Justice failed to consider breaches of natural justice – Whether proceeding futile – Exercise of discretion – No error established – Appeal dismissed – Supreme Court (General Civil Procedure)Rules 2015, r 56.02.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Ms R Nida	NOH Legal
For the Defendant	Mr J Searle	Belleli King & Associates

HIS HONOUR:

Background and procedural history

On 21 May 2019, the plaintiff, Ms Roona Fazal Nida commenced this judicial review proceeding to have four interlocutory orders of the Magistrates’ Court of Victoria quashed. Her proceeding was considerably out of time. The orders were made on 9 May 2018, 15 June 2018, 4 September 2018 and 30 January 2019. They included a judgment against her in favour of the first defendant, BKA Practice Co Pty Ltd (‘BKA’), for $15,265.41 plus interest of $927.64 and costs of $6,489.09 made after her defence was struck out. An Associate Justice disallowed her application for an extension of time to commence the proceeding and dismissed the proceeding with costs.[1] This is an appeal from those orders.
[1]Nida v BKA Practice Co Pty Ltd [2020] VSC 158 (Mukhtar AsJ) (‘Judgment’).

The appeal is by rehearing pursuant to r 77.06 of the Supreme Court (General Civil Procedure) Rules 2015 (‘Rules’).[2] Ordinarily, an error by the Associate Justice must be established in order for the appeal to succeed.[3]
[2]Supreme Court (General Civil Procedure) Rules 2015 r 77.01 (‘Rules’).
[3]See LexisNexis Butterworths, Civil Procedure: Victoria, [I 77.06.0]-[I 77.06.45] (Nov 2020); Schreuders v Grandiflora Nominees Pty Ltd [2014] VSC 310, [30]; Hou v Westpac Banking Corporation [2014] VSC 606, [37].

The first defendant, BKA, a firm of solicitors, commenced the Magistrates’ Court proceeding against Ms Nida in September 2016 claiming a debt for $15,265.41 for services rendered to her as a client between December 2014 and June 2015, to enable the purchase of a franchise retail store to be operated by her son. The services were said to include: negotiating with the vendor; negotiating a new franchise with the franchisor; and, obtaining an assignment of the retail lease. BKA entered a default judgment in 2017, but it was set aside and the…

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 770
Decision Date: 20 November 2020

CaseChat Overview and Summary

The appellant, Nida, sought judicial review of the respondent, Bka Practice Co Pty Ltd’s, decision to deny an extension of time to commence a proceeding. The application was dismissed by an Associate Justice, who found that the appellant did not establish special circumstances justifying an extension. Nida appealed the Associate Justice's decision, arguing that there were special circumstances, the Associate Justice failed to consider relevant matters, and that the decision was unreasonable. The appeal was heard by the court, which reviewed the Associate Justice's decision to determine if there was any error in law or fact.

The legal issues before the court were whether the Associate Justice correctly identified and applied the principles for granting an extension of time under the Supreme Court (General Civil Procedure) Rules 2015, and whether the Associate Justice erred in their assessment of the appellant's application. Specifically, the court considered whether the appellant had established special circumstances, whether the Associate Justice failed to consider relevant matters, and whether the decision was unreasonable. Additionally, the court assessed whether the proceeding was futile and whether the Associate Justice breached natural justice.

The court found that the appellant did not establish special circumstances justifying an extension of time. The court held that the Associate Justice had correctly applied the relevant principles and considered the appropriate factors in making their decision. The court further found that the appellant's explanation for the delay was insufficient, and that the Associate Justice had not erred in their assessment of the application. The court concluded that the Associate Justice did not fail to consider relevant matters, did not reach an unreasonable conclusion, and did not breach natural justice. The court dismissed the appeal, finding that no error had been established.

The final orders of the court were that the appeal be dismissed, with the appellant to pay the respondent's costs of the appeal. The court held that the Associate Justice's decision was correct and that the proceeding was not futile. The court did not find any error in the Associate Justice's assessment of the application, and therefore upheld the decision to deny the extension of time.

Orders