Stefanovski v Magistrates' Court of Victoria (No 2)

[2004] VSC 339

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

PRACTICE COURT

No. 6489 of 2004

JIMMY STEFANOVSKI	Plaintiff
V
MAGISTRATES' COURT OF VICTORIA AND OTHERS	Defendants

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JUDGE:	HABERSBERGER, J.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	2 SEPTEMBER 2004
DATE OF JUDGMENT:	2 SEPTEMBER 2004
CASE MAY BE CITED AS:	STEFANOVSKI v THE MAGISTRATES' COURT OF VICTORIA [NO. 2]
MEDIUM NEUTRAL CITATION:	[2004] VSC 339

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	In person
For the First and Second Defendants	No appearance
For the Third Defendant	Mr A. Castle	Kay Robertson, Solicitor for Public Prosecutions

HIS HONOUR:

1. On 13 August 2004 I heard this matter in the Practice Court following a reference by a Master pursuant to r.77.04 of the Supreme Court Rules.  Following the conclusion of the argument, I gave oral reasons for judgment[1] and made orders in accordance with those reasons.  This judgment needs to be read in conjunction with my earlier judgment.

   [1][2004] VSC 313

1. As I stated in the earlier judgment:

"From what I was told by the parties, I understood that the Master had dismissed that part of the plaintiff's claim which sought review of the decision by the Director to take over the conduct of the two informations and to discontinue them and the decision by the Magistrate accordingly striking out both informations, on the ground that that part of the plaintiff's claim was plainly hopeless.  On the other hand, I understood that the Master had ruled that the claim for review of the Magistrate's order for costs against Mr Stefanovski was not plainly hopeless and that he had, in the circumstances, decided to refer that part of the claim to me."

1. Following the revision of my oral reasons for judgment it became clear to me that rather than referring to me only part of the third defendant's application, pursuant to r.77.04(3) of the Supreme Court Rules, the Master had in fact referred to me all of that application, pursuant to r.77.04(1), without making any order for dismissal of part of the application.  This meant that the order I made giving the plaintiff leave to make an oral application by way of an appeal was unnecessary.  More importantly, it also meant that part of the third defendant's application was still unresolved, because the only relevant order I made was that the appeal against the order of Master Evans dismissing the originating motion insofar as part of the relief or remedy set out in paragraphs 1 to 8 of the said originating motion related to the decision of the third defendant to take over and conduct matters S00630021 and S00629854 in the Magistrates' Court of Victoria at Sunshine be dismissed.  However, there was no such order made by the Master.  It would also mean that if, as I understand he does, Mr Stefanovski wishes to appeal my decision, there would be no order to appeal against other than my order dismissing the third defendant's summons seeking summary judgment in respect of that part of Mr Stefanovski's originating motion which concerned the costs order made by the Magistrate.  That is, an order in respect of a matter in which Mr Stefanovski was successful.  In the circumstances, it seemed to me that, an order needed to be made dealing with the other part of the third defendant's application.  But given the view I had formed as to the hopeless nature of this part of the plaintiff's claim, it seemed to me that I should make an order giving judgment for the third defendant against the plaintiff in respect of that part of the plaintiff's claim.

1. In order to sort out these procedural difficulties I requested the parties to appear before me again to hear any submissions they might want to make against this proposed course of action.  That occurred today and after explanation of the procedural difficulties as I saw them, neither party, as I understood their positions, objected to the course I had proposed.

1. Accordingly, I will order that there be judgment for the third defendant against the plaintiff in respect of any part of the relief or remedy set out in paragraphs 1 to 8 of the plaintiff's originating motion filed 11 June 2004 as relates to the decision of the third defendant to take over the conduct of matters S006320021 and S00629854 in the Magistrates' Court of Victoria at Sunshine and the decision by the Magistrate accordingly to strike out both matters.

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