Stephens v the Queen - [2016] VSCA 12

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2014 0126
ANTHONY SULLIVAN	Applicant
v
GREYFRIARS PTY LTD	Respondent

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JUDGES:	WHELAN, FERGUSON and McLEISH JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	5 February 2016
DATE OF JUDGMENT:	18 February 2016
MEDIUM NEUTRAL CITATION:	[2016] VSCA 12
JUDGMENT APPEALED FROM:	Sullivan v Greyfriars Pty Ltd [2014] VSC 422 (Lansdowne AsJ)

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PRACTICE AND PROCEDURE – Application for leave to appeal against orders of associate judge dismissing appeal from Magistrates’ Court – Magistrate ordered applicant to pay amounts owing pursuant to levies imposed by respondent – Limited evidence regarding raising of levies by directors of respondent – Whether magistrate entitled to rely upon evidence.

PRACTICE AND PROCEDURE – Procedural fairness – Applicant not given opportunity to raise formal defence to amended claims of respondent – Effect of amendments to reduce amount of claim against applicant – Whether applicant denied procedural fairness – Whether magistrate gave adequate reasons.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	In person
For the Respondent	Mr T J Sowden	Nicholas O’Donohue & Co

WHELAN JA:

I have read in draft the judgment of Ferguson and McLeish JJA. I agree with them, for the reasons they have given and for one additional reason, that leave to appeal should be granted, and that the appeal should be allowed in so far as it relates to the order for the payment of interest but should otherwise be dismissed.

My additional reason concerns ground 1. The contention that no evidence of either the Articles of Association or a determination of directors had been given should be rejected for the additional reason that the ground raises factual matters which were not conceded, which had not been raised at the trial, and which could possibly have been met by additional evidence had they been raised at trial.[1] Most obviously, Ms McLennan could have been asked to explain the process by which the levies were determined more fully.
[1]Water Board v Moustakas (1988) 180 CLR 491, 497; Coulton v Holcombe (1986) 162 CLR 1, 7–8; Boz One Pty Ltd v McLellan [2015] VSCA 68 [143].

Ferguson and McLeish JJA refer to this matter but conclude it is unnecessary to determine it given their conclusion on ground 1, with which I agree, that there was evidence which the magistrate was entitled, although not bound, to accept.

FERGUSON JA

McLEISH JA:

The applicant seeks leave to appeal against orders of an associate judge dismissing his appeal on a question of law from an order of the Magistrates’ Court.[2] By that order, the magistrate ordered the applicant to pay to the respondent the sum of $9,712.30 together with interest in the sum of $3,955.48, and dismissed a much larger counterclaim brought by the applicant.[3] The proceedings arose from a series of disputes between the applicant and the respondent, which is the owner of a

company title block of units in which the applicant owns shares entitling him to occupation of one of the units…

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 Stephens v the Queen

Details

AGLC: and Anthony Sullivan v Greyfriars Pty Ltd [2016] VSCA 12
Case: [2016] VSCA 12
Decision Date: 18 February 2016

CaseChat Overview and Summary

Stephens has brought an application for leave to appeal against an order made by an associate judge of the Federal Circuit Court dismissing his appeal against a decision of a Magistrate from the Magistrates’ Court of Australia. The magistrate had ordered Stephens to pay amounts owing pursuant to levies imposed by the respondent, the Australian Building and Construction Commission. The primary issue before the court was whether the magistrate was entitled to rely on evidence concerning the raising of the levies by the directors of the respondent, given that Stephens had limited opportunity to challenge this evidence. Another issue was whether Stephens was denied procedural fairness when he was not given an opportunity to raise a formal defence to the amended claims of the respondent, particularly in light of the amendments that reduced the amount of the claim against him. The court also needed to determine if the magistrate provided adequate reasons for his decision.

The court found that the magistrate was not entitled to rely on the evidence regarding the raising of the levies, as Stephens had limited opportunity to challenge it. This was significant because the validity of the levies could have a substantial impact on the outcome of the case. Regarding procedural fairness, the court held that Stephens had been denied a fair opportunity to defend himself against the amended claims. The court concluded that the magistrate had not provided adequate reasons for his decision, which was critical in ensuring that the principles of procedural fairness were upheld. Consequently, the court granted Stephens leave to appeal against the associate judge’s order.

Orders