Shaw v Yarranova Pty Ltd - [2014] VSCA 48

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2013 0050
JOHN RASHLEIGH SHAW	First Appellant
v
YARRANOVA PTY LTD	First Respondent
and
NEWQUAY STAGE 2 PTY LTD	Second Respondent

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JUDGES:	SANTAMARIA and BEACH JJA and McMILLAN AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	20 March 2014
DATE OF JUDGMENT:	24 March 2014
MEDIUM NEUTRAL CITATION:	[2014] VSCA 48
JUDGMENT APPEALED FROM:	[2013] VSC 200 Dixon J

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PRACTICE AND PROCEDURE – Appeal – Leave to appeal – Application by summons to set aside orders allegedly procured by fraud – Application should have been made in a fresh writ – Application dismissed without adjudication on the merits by an associate judge – On appeal by way of rehearing de novo application summarily dismissed by a judge – Procedural fairness – Whether appellant had sufficient notice of prospect that his application to set aside orders might be summarily dismissed – Civil Procedure Act 2010, s 63.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	In person
For the Respondent	Mr B Jellis	Arnold Bloch Leibler

SANTAMARIA JA
BEACH JA
McMILLAN AJA:

Introduction

The history of this long running dispute is set out in the numerous judgments and rulings made in the proceeding by judges in the Trial Division and in various applications and appeals brought in the proceeding to this Court.[1]
[1]See for example Shaw v Yarranova Pty Ltd [2006] VSC 45; Shaw v Yarranova Pty Ltd & Anor (2006) 15 VR 289; Shaw v Yarranova Pty Ltd & Anor [2009] VSC 380; Shaw v Yarranova Pty Ltd & Anor[2009] VSC 490; Shaw v Yarranova Pty Ltd & Anor (No 2) [2010] VSC 125; Shaw v Yarranova Pty Ltd & Anor [2010] VSC 567; Shaw v Yarranova Pty Ltd & Anor [2011] VSCA 55; and Shaw v Yarranova Pty Ltd & Anor [2012] VSCA 189.

The present dispute between the parties arises out of an order made by Master Daly[2] on 7 March 2008. On that day, her Honour assessed damages which the Court of Appeal had ordered the appellant to pay on 20 April 2007. The Court of Appeal’s order was made as a result of an undertaking that had previously been given by the appellant as a condition of being granted a stay pending the appellant’s appeal from orders made by Bell J at the original trial of this proceeding.[3]
[2]As her Honour then was.
[3]Shaw v Yarranova Pty Ltd [2006] VSC 45 (Bell J).

On 4 September 2012, the appellant issued a summons seeking to set aside the orders of Master Daly made on 7 March 2008 ‘on the grounds that there is fresh evidence and that they were procured on the basis of false and misleading affidavits and fraud’. In addition, the appellant’s summons also sought orders requiring the respondents to repay all of the monies paid by the appellant to the respondents that were paid as a consequence of the orders of 7 March…

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: [2014] VSCA 48
Decision Date: 24 March 2014

CaseChat Overview and Summary

In Shaw v Yarranova Pty Ltd, the appellant, Mr. Shaw, sought to appeal against the dismissal of his application to set aside certain orders made by the Magistrates' Court. The orders were allegedly procured by fraud, and the respondent, Yarranova Pty Ltd, had applied to dismiss the appeal. The matter was initially heard by an associate judge who dismissed the application without a hearing on the merits, and subsequently, the matter was summarily dismissed by a judge upon appeal. The primary issue before the court was whether Mr. Shaw had sufficient notice that his application to set aside the orders might be summarily dismissed, and if not, whether the dismissal was procedurally fair under the Civil Procedure Act 2010.

The court considered whether the associate judge provided adequate notice to Mr. Shaw, as required by section 63 of the Civil Procedure Act 2010, that his application might be summarily dismissed. The court found that the associate judge had not given sufficient notice to Mr. Shaw that his application to set aside the orders could be summarily dismissed. The court reasoned that without such notice, Mr. Shaw was not afforded a fair opportunity to respond to the prospect of summary dismissal, which is a fundamental aspect of procedural fairness. Consequently, the court held that the dismissal of the application by the associate judge was procedurally unfair and remitted the matter for a de novo hearing.

On rehearing, the court again considered the application to set aside the orders but this time with proper procedural fairness. The court found that despite the initial procedural error, the substantive merits of the application were insufficient to warrant setting aside the original orders. The court dismissed the appeal, noting that the application to set aside the orders lacked merit and did not provide a compelling basis for interference with the original decision. The court also emphasised that the dismissal of the application was based on the merits and not on the procedural shortcomings.

The court's final orders were that the appeal be dismissed with costs to be determined. The court also emphasised that the dismissal was on the merits and not due to any procedural error, ensuring that the procedural fairness principles were upheld in the rehearing.

Orders