Tomasevic v Toll Holdings Ltd - [2011] VSC 231

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S CI 2011 00973

B E T W E E N

ALEN TOMASEVIC	Appellant
– and –
TOLL HOLDINGS LTD and others	Respondent

---

JUDGE:	MUKHTAR AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	27 May 2011
DATE OF JUDGMENT:	27 May 2011 (reasons published on 1 June 2011)
CASE MAY BE CITED AS:	Tomasevic v Toll Holdings Ltd and ors
MEDIUM NEUTRAL CITATION:	[2011] VSC 231

---

APPEAL ― Natural justice ― Right to seek legal representation ― Litigant in person ― Motor car damage claim ―Arbitration type proceedings in Magistrates’ Court ― Informal procedure ― Small claim ― Magistrate’s insistence that case proceed ― No denial of natural justice ― Appeal dismissed

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	In person	-
For the Defendants	Mr N Kenyon	Harwood Andrews Lawyers

HIS HONOUR:

The appellant, a litigant in person, has filed a notice of appeal against a final order given against him by the Magistrates’ Court at Moorabbin (constituted by Mr R Crisp) on 2 February 2011. This was, to use a widely accepted description in the legal profession, a “crash and bash” case on a relatively small legal scale. The respondent’s truck collided with the rear of the appellant’s stationery car. The impact was fortunately not severe. The appellant’s was for damage to his car (a “write off”) was $6000. The notice of defence, which went beyond the typical mere denials, said “the collision occurred when the vehicle driven by the plaintiff changed lanes in front of the vehicle driven by the defendant and came to a stop leaving insufficient room for the [respondent’s vehicle] to avoid a collision…” . And that is precisely what the Magistrate found. His Honour dismissed the appellant’s claim, and made an order on the counterclaim for $5972 with interest of $252 and costs of $2347. The appellant can only appeal on a question of law. Doing the best I can to comprehend the grounds of appeal, it seems based on a broad complaint about a denial of natural justice although it also drifts into the merits of the decision.

On 27 May 2011 I dismissed the appeal under rule 58.10(8) on two grounds. First, the notice of appeal did not expose sufficiently or at all a question of law. Secondly and in any case, there was no arguable case to be put on the appeal. Indeed, in my view it was bound to fail; and if it matters I would have come to the same decision as the Magistrate. I now publish my reasons for that decision. But before exposing the elements of the case, there are three contextual matters that should be exposed at the outset.

First, under section 102 of the Magistrates’ Court Act, if, as here, the complaint seeks monetary relief under $10 000 the case is referred to and decided by arbitration. Under section 103(2), the Court is not…

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 Tomasevic v Toll Holdings Ltd 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: [2011] VSC 231
Decision Date: 27 May 2011 (reasons published on 1 June 2011)

CaseChat Overview and Summary

Tomasevic was the plaintiff in a small claims action brought in the Magistrates’ Court of Victoria, seeking damages for damage to a motor vehicle. The defendant, Toll Holdings Ltd, argued that the claim should be dismissed. The case was heard in an arbitration type proceeding before a magistrate, who insisted that the matter proceed despite Tomasevic's lack of legal representation. The plaintiff appealed to the Court of Appeal, arguing that the magistrate's insistence that the matter proceed without a lawyer breached the rules of natural justice. The appeal raised the question of whether the magistrate's insistence on proceeding without a lawyer, despite the plaintiff's request to be allowed to seek legal representation, amounted to a breach of natural justice.

The court considered whether the magistrate's conduct breached the rules of natural justice by insisting that the matter proceed without a lawyer, despite the plaintiff's request to seek legal representation. The court held that there was no breach of natural justice in this case, as the informal nature of the proceedings did not require strict adherence to procedural rules. The court further held that the magistrate's conduct was not influenced by any bias or prejudice, and that the plaintiff had not been denied a fair hearing. The appeal was dismissed, and the decision of the Magistrates’ Court was upheld.

The Court of Appeal held that the magistrate's insistence on proceeding without a lawyer did not breach the rules of natural justice, as the informal nature of the proceedings did not require strict adherence to procedural rules. The court found that the plaintiff had not been denied a fair hearing, and that the magistrate's conduct was not influenced by any bias or prejudice. The appeal was dismissed, and the decision of the Magistrates’ Court was upheld. The court did not make any orders regarding costs.

Orders