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 |
---
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 | |
---
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.
---
| 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…
Keep reading for free
Create a free CaseChat account to read Shaw v Yarranova Pty Ltd and more:
- Read every judgment in full
- Ask AI and get answers linked to paragraphs
- See how each paragraph was cited in later cases
- Download judgments as PDF or Word
One click creates your free account or signs you in.
By continuing you agree to the Terms and Privacy Policy.
- Case
- [2014] VSCA 48
- Decision Date
CaseChat Overview and Summary
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
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.