Sherman v Watson - [2003] VSCA 70

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 6871 of 2002

PETER SHERMAN
PETER SHERMAN	Appellant
v.
DIANA WATSON	Respondent

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JUDGES:	PHILLIPS and BUCHANAN, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	30 May 2003
DATE OF JUDGMENT:	30 May 2003
MEDIUM NEUTRAL CITATION:	[2003] VSCA 70	First Revision 12 June 2003

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Courts – Practice and procedure – Appeal by leave from Judge’s refusal (on appeal from Master) of leave to appeal from VCAT – Respondent concedes that if appeal allowed, appeal from the Tribunal should be allowed instanter and matter remitted to Tribunal for further hearing – Appeal allowed and orders made accordingly – Costs following the event – Victorian Civil and Administrative Tribunal Act 1998 s.148.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	In person
For the Respondent	Ms K. Knights	Clayton Utz

PHILLIPS, J.A.:

This is an appeal arising indirectly out of a claim made by the appellant against the respondent for the sum of $11,167, a sum which was amended at the hearing to $12,647. The claim was brought on application in the Victorian Civil and Administrative Tribunal and the jurisdiction relied upon by the appellant was apparently that conferred by the Fair Trading Act 1999. On 20 May 2002 the application was heard and dismissed and the appellant was ordered to pay costs of $930 to one Joseph Rose, a solicitor whom the appellant had summoned to produce documents. On 17 July 2002 the Member constituting the Tribunal delivered written reasons for decision.

On 20 August 2002 the appellant filed an originating motion in the Trial Division seeking leave to appeal under s.148 of the Victorian Civil and Administrative Tribunal Act 1998 (“the VCAT Act”). He sought leave to appeal from the order of dismissal and the order awarding costs. He did not, however, seek to join the solicitor, Joseph Rose. On 15 October 2002 the application was heard by a Master and dismissed with costs.

On 24 October 2002 the appellant filed notice of appeal and on 11 November 2002 a judge in the Practice Court, bypassing the difficulty that the notice of appeal was taken out of time, considered the merits and dismissed the appeal on the merits. Again it was dismissed with costs.

On 25 November 2002 the appellant filed a summons seeking leave to appeal to the Court of Appeal under s.17A(4)(b) of the Supreme Court Act 1986 from the orders made in the Practice Court on 11 November. The Court as presently constituted heard the application on 16 December 2002 and granted leave to appeal. The reasons then given set out sufficiently for present purposes the background to this proceeding, although Mr. Sherman, who appears today to prosecute the appeal in person, points out that the background facts retailed in those reasons were not necessarily accepted by him and were, to some extent at least, the subject of continuing dispute. That does not matter for present purposes. We have before us now the appeal for determination.

Mr. Sherman argues that…

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 Sherman v Watson

Details

AGLC: Sherman v Watson [2003] VSCA 70
Case: [2003] VSCA 70
Decision Date: 30 May 2003

CaseChat Overview and Summary

Sherman and Watson were involved in a legal dispute that was first heard by the Victorian Civil and Administrative Tribunal (VCAT). Dissatisfied with VCAT's decision, Sherman sought leave to appeal to the court from the judge's refusal to grant leave to appeal from VCAT. Watson, the respondent, conceded that if the appeal was allowed, the appeal from the Tribunal should be granted instantly, and the matter should be remitted to the Tribunal for a further hearing. The court was tasked with determining whether it should grant Sherman leave to appeal from the judge's decision and, if so, whether the appeal from VCAT should be allowed instantly.

The legal issues the court had to decide included whether the judge's refusal to grant leave to appeal from VCAT was correct and whether the appeal from VCAT should be allowed instantly if the appeal from the judge's decision was granted. The court needed to assess whether the grounds for appeal were sufficient and whether there were any exceptional circumstances that warranted allowing the appeal. Additionally, the court had to consider the appropriate orders to make if it decided to grant the appeal.

The court allowed the appeal and made orders accordingly. It held that the judge's refusal to grant leave to appeal from VCAT was incorrect and that the appeal from VCAT should be allowed instantly. The court found that the grounds for appeal were sufficient and that there were exceptional circumstances that justified allowing the appeal. The court also determined that costs should follow the event, in accordance with the Victorian Civil and Administrative Tribunal Act 1998 section 148. Consequently, the matter was remitted to the Tribunal for a further hearing.

The final orders included granting Sherman leave to appeal from the judge's decision, allowing the appeal from VCAT instantly, and remitting the matter to the Tribunal for a further hearing. Costs were ordered to follow the event.

Orders