Saunders v VWA

[2015] VSC 787

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST

S CI 2015 03659

JOHN SAUNDERS	Applicant
v
VICTORIAN WORKCOVER AUTHORITY	First Respondent
OZ DAIRY FOODS PTY LTD	Second Respondent

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JUDGE:	Ierodiaconou AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	25 November 2015
DATE OF RULING:	18 December 2015
CASE MAY BE CITED AS:	Saunders v VWA and Anor
MEDIUM NEUTRAL CITATION:	[2015] VSC 787

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PRACTICE AND PROCEDURE – Interlocutory or Final Order - Magistrates Court Act 1989, s109 – Summary Dismissal - Supreme Court (General Civil Procedure) Rules 2015, r 58.10(8)

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr M Dealehr	Simon Legal
For the First Respondent	Mr M Fleming QC	IDP Lawyers
For the Second Respondent	Mr B McKenzie	Russell Kennedy

HER HONOUR:

Introduction

1. By summons filed on 29 October 2015, the first defendant seeks orders that the proceeding be dismissed in accordance with r 58.10(8) of the Supreme Court (General Civil Procedure) Rules 2015 (‘the Rules’).  The applicant resists the summons.

1. The legal issue for determination is whether or not a costs order made in the Magistrates’ Court is a final or interlocutory order. Section 109 of the Magistrates’ Court Act 1989 permits appeal to the Supreme Court on a question of law from a final order.  Accordingly, an appeal from an interlocutory order is incompetent. 

Background

1. On 15 July 2015, the applicant filed a summons and notice of appeal.  The summons seeks leave to appeal from orders made in the Magistrates’ Court on 15 June 2015.  In the Magistrates’ Court proceeding, the applicant in this proceeding is the plaintiff, and the respondents to this proceeding are the defendants.  The order is as follows. 

The plaintiff pay the costs of the first and second defendants of 4 June 2015 and 15 June 2015 thrown away by reason of adjournment, scale and amount reserved.

1. In this ruling, a reference to ‘the costs order’ is a reference to the order above.

1. The applicant also initially sought to appeal against another decision in the Magistrates’ Court on the same date.  His notice of appeal indicates that this decision is that he not be permitted to include in his application against the respondent injuries other than injury to his lower back.  During the course of the hearing on 25 November 2015, the applicant’s counsel indicated that he would not continue with his application to appeal against this other order.

Submissions

1. The respondents submit that the cost order is an interlocutory order and bring their application for dismissal on the basis.  The applicant submits that the costs order is a final order.  Both parties made oral and written submissions.  It is unnecessary to reiterate all the submissions here. 

Applicable Principles

58.10 Directions

(8)       The Associate Judge may dismiss the appeal if satisfied that—

(a)the notice of appeal does not identify sufficiently or at all a question of law on which the appeal may be brought;

(b)the appellant does not have an arguable case on appeal or to refuse leave would impose no substantial injustice; or

(c)the appeal is frivolous, vexatious or otherwise an abuse of the process of the Court.

1. The applicable principles are as follows:

(a)       Costs orders may be final orders where they are consequent on final orders.[1]

(b)Where costs orders are ancillary to interlocutory orders or part of interlocutory proceedings, they have been held to be interlocutory orders themselves.[2]

(c)‘The general rule is that an order is interlocutory unless…. it “finally determine[s] the rights of the parties in a principal cause pending between them”. Whether it does so is determined by the legal, not the practical, effect of the order.’[3]

(d)Three kinds of interlocutory orders can be identified.  First, where it is theoretically possible to make a fresh application for the same relief.  Second, where it does not determine the rights of the parties in a principal cause (whether or not a fresh application might be made).  Third, an order striking out, forever staying or dismissing a proceeding because it is an abuse of process or frivolous or vexatious or does not disclose a reasonable cause of action (subject to an attempt to litigate an issue which is res judicata).[4]

(e)‘The mere fact that the order determined the issue in the proceeding before the Magistrates’ Court does not make the order final.’[5]

[1]Dean’s Pty Ltd v Laratae [2015] VSC 341, [19]-[27] (‘Dean’s Pty Ltd’) and the cases there cited.

[2]Victoria Legal Aid v The County Court of Victoria [2004] 9 VR 686, [7]-[8], [10] (Chernov JA, with whom Warren CJ and Dodds-Streeton AJA agreed); Coulter v Ryan [2007] 2 Qd R 302, [5] (McMurdo P), [11]-[16] (Holmes JA); and Bunting v Minister for Immigration and Multicultural and Indigenous Affairs [2006] FCA 1411, [4], [7].

[3]Dodoro v Knighting (2004) 10 VR 277, 281-4 (citations omitted) cited by Kyrou J in Somerville Retail Services Pty Ltd v Vi [20.08] VSC 196.

[4]As above.          

[5]Somerville Retail Services Pty Ltd v Vi [2008] VSC 196 at [38] [citations omitted].

Application

1. The costs order is not consequential on a final order.  It was made ancillary to an interlocutory order, namely an adjournment.  It does not determine the rights of the parties in the principal cause.

1. The cost order is an interlocutory order.  Section 109 of the Magistrates Court Act 1989 does not permit appeals from interlocutory orders.  Rule 58.10(8) is applicable.  It permits dismissal on the basis that the appellant has no arguable case on appeal.  Given that the applicant‘s case does not fall within s 109, he has no arguable case on appeal. 

1. The Court will make orders dismissing the proceeding pursuant to r 58.10(8). It requests the parties confer regarding the appropriate costs orders.

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