Pole v Jasethuhewage - [2015] VSC 186

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST

S CI 2015 01179

IN THE MATTER of an appeal under s 109 of the Magistrates’ Court Act 1989

BETWEEN:

DAVID IAN POLE	Plaintiff
v
MENAKA NILUSHI SENARATH JASENTHUHEWAGE	Defendant

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JUDGE:	Mukhtar AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	24 April 2015
DATE OF JUDGMENT:	6 May 2015
CASE MAY BE CITED AS:	Pole v Jasethuhewage
MEDIUM NEUTRAL CITATION:	[2015] VSC 186

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APPEAL – Appeal from Magistrates’ Court on question of law – Statutory time limit of 30 days from making of final order – Leave to appeal out of time for “exceptional circumstances” – Whether exceptional circumstances need only be present within 30 days and not beyond – Court Act 1989, s 109(5)

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr P G Little	Easton Legal
For the Defendant	Mr T J Sowden	Law 554

HIS HONOUR:

A party to a civil proceeding in the Magistrates’ Court may appeal to this Court on a question of law under s 109 of the Magistrates’ Court Act. Under s 109(2) the appeal ‘must be instituted not later than 30 days after the day on which the order complained of was made’. But under s 109(5) this Court may grant leave to institute an appeal after the end of the 30 day limit if the Court –

(a) is of the opinion that the failure to institute the appeal within the [30 day] period … was due to exceptional circumstances; and

(b) is satisfied that the case of any other party to the appeal would not be materially prejudiced because of the delay.

It is not uncommon to have disputes over applications for leave to appeal out of time, and it is remarkable how much judicial attention has been given to the meaning of s 109(5). Before me were Schwerin v Equal Opportunity Board;[1] Denysenko v Dessa;[2] Hughes v Morgan;[3] Burlock v Wellington Street Investments Pty Ltd;[4] and Miao v Body Corporate SP31235U.[5] See also Adidem Pty Ltd v Cowdery.[6]
[1][1994] 2 VR 279.
[2][1996] 2 VR 221.
[3][1998] VSC 147.
[4][2009] VSC 565.
[5][2013] VSC 380.
[6][2014] VSC 533.

Leave to appeal was opposed tenaciously in this case, in the face of some deserving facts, so I thought. As I will show, there were eccentric happenings after the Magistrate reserved his decision after the trial of this case, not attributable to anything done by the appellant or the respondent. On 24 April 2015 I gave an ex tempore decision giving leave to appeal, for reasons to be published. I came to the view that exceptional circumstances existed here in abundance; that is, not only within the first 30 days but also to explain the delay after day 30. I concluded it would be unjust to refuse leave. But a point of statutory construction s…

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 Pole v Jasethuhewage

Details

AGLC: Pole v Jasethuhewage [2015] VSC 186
Case: [2015] VSC 186
Decision Date: 6 May 2015

CaseChat Overview and Summary

The matter of Pole v Jasethuhewage involved the appellant, Pole, appealing against a decision made by the respondent, Jasethuhewage, in the Magistrates’ Court. The dispute centred around whether the appellant had the right to appeal out of time due to what were described as exceptional circumstances. The statutory time limit for making an appeal was 30 days from the making of the final order, as stipulated by the Court Act 1989, section 109(5). The central legal issue before the court was whether the exceptional circumstances necessary for leave to appeal out of time must be present within the 30-day period and not beyond it.

The court meticulously examined the statutory language of section 109(5) of the Court Act 1989, which mandates that an appeal must be lodged within 30 days from the making of the final order. The court noted that the appellant had not filed the appeal within this time frame, but had applied for leave to do so out of time. The question before the court was whether the exceptional circumstances justifying this late filing could extend beyond the statutory period. The court found that the statutory language did not support the notion that the exceptional circumstances could arise after the 30-day period had elapsed, thus limiting the scope for an out-of-time appeal.

In reaching its decision, the court held that the appellant had not satisfied the statutory requirements for an out-of-time appeal. The court reasoned that exceptional circumstances, as contemplated by section 109(5) of the Court Act 1989, must exist within the 30-day period. Since the appellant had failed to demonstrate that such circumstances were present during this period, the application for leave to appeal out of time was dismissed. The court emphasised the importance of adhering to statutory deadlines and the limited exceptions available for deviation from these timelines. The final orders of the court were that the appeal was dismissed and that the appellant was not granted leave to appeal out of time.

Orders