Taylor v Schaub - [2014] VSC 415

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S CI 2014 2048

WESLEY RAYMOND TAYLOR

Appellant

MARK SCHAUB

GAYLE BRENDA SCHAUB

First Respondent

Second Respondent

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JUDGE:	GINNANE J
WHERE HELD:	Melbourne
DATE OF HEARING:	21 August 2014
DATE OF JUDGMENT:	21 August 2014
CASE MAY BE CITED AS:	Taylor v Schaub
MEDIUM NEUTRAL CITATION:	[2014] VSC 415

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APPEAL – Appeal on question of law from Magistrates’ Court – Claim in conversion – Summary dismissal of claim – Plaintiff’s Statement of Affairs containing statements about ownership of property – No evidence by plaintiff about his ownership of the goods the subject of his claim – Application to rely on further evidence refused – Open to Magistrate to decide that claim had no real prospect of success – Civil Procedure Act 2010 (Vic) ss 63, 64.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	In person
For the Respondents	Mr S Rubenstein	Logie-Smith Lanyon

HIS HONOUR:

Mr Taylor appeals from orders of His Honour Magistrate McNamara, given on 7 April 2014, which dismissed his claim and ordered him to pay the defendants’ costs.

The order dismissing Mr Taylor’s claim was made under s 63 of the Civil Procedure Act2010 (Vic).

An initial issue arose in the appeal as to whether Mr Taylor needed leave to appeal because the order of Magistrate McNamara was interlocutory. I directed that any application for leave and the appeal be heard together.

I will proceed on the assumption that Mr Taylor has a right of appeal.

Mr Taylor represented himself and made comprehensive submissions. His solicitor had very recently been given leave to cease to act. I asked Mr Taylor if he wanted an adjournment to obtain further legal representation, but he did not wish that to occur. I have considered, and taken into account, the written submissions that Mr Taylor’s lawyers prepared while they were acting. I have also taken into account the respondents’ written submissions.

The question of law relied on by Mr Taylor was whether it was reasonably open to the Magistrate to find Mr Taylor’s case had no real prospect of success and to give summary judgment for the respondents, pursuant to s 63 of the Civil Procedure Act 2010 (Vic). The associated ground of appeal was whether the Magistrate was wrong in law in finding that Mr Taylor’s claim had no real prospect of succeeding at a hearing, based upon his finding that Mr Taylor’s Statement of Affairs under a Personal Insolvency Agreement made in 2008 was contradictory of his claim.

Sections 63(1) and 64 of the Civil Procedure Act 2010 (Vic) provide:

63(1) Subject to section 64, a court may give summary judgment in any civil proceeding if satisfied that a claim … has no real prospect of success.
64 Despite anything to the contrary in this Part or any rules of court, a court may order that a civil proceeding proceed to trial if the court is…

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 Taylor v Schaub

Details

AGLC: Taylor v Schaub [2014] VSC 415
Case: [2014] VSC 415
Decision Date: 21 August 2014

CaseChat Overview and Summary

Taylor brought a claim against Schaub alleging conversion. The claim was summarily dismissed by the Magistrates’ Court, and Taylor appealed to the Supreme Court on a question of law. The primary dispute was over whether the Magistrate was correct to dismiss the claim based on the absence of evidence from Taylor regarding his ownership of the goods that were the subject of his claim.

The court was required to determine whether the Magistrate had the authority to dismiss the claim under the Civil Procedure Act 2010 (Vic). Specifically, whether the Magistrate was correct to consider that the claim had no real prospect of success due to the lack of evidence of ownership from Taylor. The court had to consider whether the Magistrate erred in law by not allowing Taylor to adduce further evidence.

The court held that the Magistrate had the authority to dismiss the claim under ss 63 and 64 of the Civil Procedure Act 2010 (Vic). These sections allow a court to dismiss a claim if it is satisfied that there is no real prospect that the claim will succeed. The court found that the Magistrate was not required to allow Taylor to adduce further evidence and could instead make a decision based on the evidence before the court. The court held that the Magistrate did not err in law in deciding that the claim had no real prospect of success. The appeal was dismissed.

The court did not make any orders as to costs.

Orders