Ruzicka v Hancock (Ruling)

[2024] VCC 1874

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

COMMON LAW DIVISION

 Revised
Not Restricted
 Suitable for Publication

APPEALS AND POST SENTENCE APPLICATIONS LIST

Case No. AP-24-0899

MICHAEL RUZICKA	Plaintiff
v
ZOE HANCOCK	Defendant

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JUDGE:	HIS HONOUR JUDGE PILLAY
WHERE HELD:	Melbourne
DATE OF HEARING:	On the papers
DATE OF RULING:	21 November 2024
CASE MAY BE CITED AS:	Ruzicka v Hancock (Ruling)
MEDIUM NEUTRAL CITATION:	[2024] VCC 1874

RULING
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Subject:Application to set aside order striking out appeal for failing to appear

Catchwords:              Personal safety intervention order appeal – strike out proceedings – appeal to set aside strike out order and reinstate proceedings

Ruling:  Application refused

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APPEARANCES:	Counsel	Solicitors
For the Applicant	No appearance
For the Respondent	No appearance

HIS HONOUR:

1This is an application by Mr Ruzicka to set aside an order striking out his appeal.

2His appeal was from orders made by Magistrate Prior on 3 July 2024 granting a personal safety intervention order in favour of the current respondents. Those orders were made by consent after Mr Ruzicka had received advice from a solicitor.

3Mr Ruzicka then appealed to this Court. The matter was subject to timetabling orders made on 12 September 2024. The Appellant sought time to obtain legal advice which was granted. The matter was listed for mention on 10 October 2024. On that date Mr Ruzicka did not appear when the matter was called on. The matter was called outside of Court and he still entered no appearance. The matter was struck out.

4Mr Ruzicka appeared at Court shortly afterward.

5The Appellant now seeks by application to have his matter reinstated. 

6The guiding principles as to reinstatement seem to me to be (1) that there is an adequate explanation for the underlying reason for his non–appearance and (2) whether there is a real or arguable case.     

7Here there is no reason for the failure to attend set out by Mr Ruzicka in his application.  

8Turning to assess the second limb, as to whether there is a real or arguable case. It is to be remembered that the matter is an appeal in which the Appellant must demonstrate a legal, factual or discretionary error.  In circumstances where the Appellant had legal advice (as set out in his application) and entered into orders by consent before Magistrate Prior I consider there is no arguable case to be made on appeal. 

9The application for reinstatement is denied.