Somerville Retail Services Pty Ltd v Vi - [2008] VSC 196

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 9133 of 2007

SOMERVILLE RETAIL SERVICES PTY LTD	Appellant
v
PETISI VI	Respondent

No. 6488 of 2008

SOMERVILLE RETAIL SERVICES PTY LTD	Plaintiff
v
PETISI VI	First Defendant
and
MAGISTRATES’ COURT OF VICTORIA	Second Defendant

---

JUDGE:	KYROU J
WHERE HELD:	Melbourne
DATE OF HEARING:	6 June 2008
DATE OF JUDGMENT:	24 June 2008
CASE MAY BE CITED AS:	Somerville Retail Services Pty Ltd v Vi
MEDIUM NEUTRAL CITATION:	[2008] VSC 196

---

Appeal under s 109, Magistrates’ Court Act1989 (Vic) – Magistrates’ Court order dismissing application under s 60(2), Accident Compensation Act 1985 (Vic) – whether order is final or interlocutory – whether appeal competent.

What constitutes “genuine dispute” under s 59(10), Accident Compensation Act.

Order 56, Supreme Court (General Civil Procedure) Rules 2005 (Vic) – application for judicial review of Magistrates’ Court order – application out of time – whether “special circumstances” established.

---

APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr R Gorton QC and Mr M Fleming	Herbert Geer & Rundle
For the Respondent	Mr M O’Loghlen QC and Mr G Wicks	Maurice Blackburn

HIS HONOUR:

Introduction and summary

There are two proceedings before me. The first is an appeal under s 109 of the Magistrates’ Court Act 1989 (Vic) (“MC Act”) against an order made on 1 October 2007 by the Magistrates’ Court at Melbourne dismissing an application under s 60(2) of the AccidentCompensation Act 1985 (Vic) (“AC Act”) to revoke directions given by a conciliation officer. The second proceeding is an application under Order 56 of the Supreme Court (General Civil Procedure) Rules 2005 (Vic) (“Rules”) for judicial review of that order.

The conciliation officer issued a “conciliation outcome certificate” making directions under s 59 of the AC Act and indicating the officer’s satisfaction that there was no arguable case in support of the denial of liability of the appellant, Somerville Retail Services Pty Ltd (“Somerville”), to make or continue to make weekly payments to the respondent, Mrs Petisi Vi. The two proceedings before me seek to set aside the learned Magistrate’s order dismissing the application to revoke the directions.

Before me, Somerville submitted that the order of the Magistrates’ Court was interlocutory and not final. It was common ground that, as s 109 of the MC Act permits an appeal to the Supreme Court only from a final order of the Magistrates’ Court, if the order was interlocutory, the appeal is incompetent and the application for judicial review under Order 56 would need to be considered. It was also common ground that, if the order of the Magistrates’ Court was final, the appeal is competent and it would not be necessary for me to consider the application for review under Order 56. Further, it was common ground that if the appeal was incompetent, I would first need to consider whether an extension of time should be granted under r 56.02 of the Rules, as the application under…

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.

Keep reading for free

Create a free CaseChat account to read Somerville Retail Services Pty Ltd v Vi 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

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2008] VSC 196
Decision Date: 24 June 2008

CaseChat Overview and Summary

Somerville Retail Services Pty Ltd brought an appeal against the decision of Vi in the Supreme Court of Victoria. The nature of the dispute involves the interpretation and application of the Accident Compensation Act 1985 (Vic) and the procedural rules under the Supreme Court (General Civil Procedure) Rules 2005 (Vic). The appeal arises from a Magistrates’ Court order dismissing an application under section 60(2) of the Accident Compensation Act. The central legal issues before the court were whether the Magistrates’ Court order was final or interlocutory, which would determine the competency of the appeal, and the meaning of "genuine dispute" under section 59(10) of the Accident Compensation Act. Additionally, the court had to consider whether the application for judicial review of the Magistrates’ Court order was out of time and, if so, whether "special circumstances" were established to justify the late filing.

The court held that the Magistrates’ Court order was final, thereby rendering the appeal competent. It further determined that the term "genuine dispute" under section 59(10) of the Act does not require the presence of a factual controversy but rather a bona fide, subjective belief by the party that the claim is valid. Concerning the application for judicial review, the court found that it was indeed out of time but held that "special circumstances" were present, justifying the late application. The court was satisfied that the applicant acted promptly upon discovering the error and that there were no circumstances suggesting neglect on the part of the applicant.

The final orders of the court were that the appeal was allowed, the Magistrates’ Court order was quashed, and the matter was remitted back to the Magistrates’ Court for reconsideration in light of the court’s findings on the meaning of "genuine dispute." The court also noted that any further application for judicial review should adhere to the procedural timelines stipulated in the Supreme Court (General Civil Procedure) Rules 2005 (Vic), unless exceptional circumstances warranted an extension of time.

Orders