Trkulja v Gibsons Solicitors Pty Ltd - [2011] VSC 585

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST

No. SCI 01402 2011

MILORAD TRKULJA	Applicant/Appellant/Plaintiff
v
GIBSONS SOLICITORS PTY LTD (ACN 101 209 401)	Respondent/Defendant

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JUDGE:	CAVANOUGH J
WHERE HELD:	Melbourne
DATE OF HEARING:	15 November 2011
DATE OF JUDGMENT:	15 November 2011. Reasons published 16 November 2011.
CASE MAY BE CITED AS:	Trkulja v Gibsons Solicitors Pty Ltd
MEDIUM NEUTRAL CITATION:	[2011] VSC 585

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ADMINISTRATIVE LAW – Magistrates’ Court – Claim for alleged debt for legal fees – Summary order made against defendant in his absence – Application for rehearing – Issues raised as to service of application for summary order - Magistrate refusing to hear and determine question whether summary order had been regularly obtained – Magistrate requiring defendant to demonstrate arguable defence – Error of law on face of record – Jurisdictional error – Denial of procedural fairness – Decision refusing application for rehearing quashed by consent.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	In person
For the Defendant	Kevin Dorey, solicitor	Gibsons solicitors

HIS HONOUR:

Final orders have been made by consent in this proceeding. The orders involved setting aside a magistrate’s decision and requiring the relevant matter to be re-heard and re-determined. The orders also involved some unusual procedural steps. So it is desirable to explain the circumstances briefly.[1]
[1]See Judicial Review and Appeals List Practice Note (No 4 of 2009) para 6.3.

The plaintiff was Mr Milorad Trkulja. He challenged, among other things, a decision and orders made by his Honour Magistrate Braun on 15 March 2011. Magistrate Braun had refused Mr Trkulja’s application (made under s 110 of the Magistrates’ Court Act 1989 and/or r 22.15 of the Magistrates’ Court General Civil Procedure Rules 2010) to set aside orders made by another magistrate against Mr Trkulja in his absence on 20 January 2011 upon an application for summary judgment for alleged outstanding legal fees brought by Gibsons Solicitors Pty Ltd (“Gibsons”).

Mr Trkulja was not legally represented in the Magistrates’ Court proceeding. Nor was he legally represented in this proceeding. His command of English, especially written English, is limited.

Mr Trkulja commenced this proceeding by filing a document entitled “Notice of Appeal”. The notice recited that the appeal was brought under s 109 of the Magistrates’ Court Act 1989. However, Magistrate Braun’s order refusing Mr Trkulja’s application for a re-hearing was an interlocutory order, not a final order.[2] For that reason it was not amenable to appeal under s 109, and any challenge to the order could only be brought by judicial review under Order 56 of the Supreme Court (General Civil Procedure) Rules 2005.[3]
[2]Guss v Johnstone, Supreme Court of Victoria, Beach J, 23 March 1994, unreported; Bahonko v Casey City Council [2008] VSC 571 (Williams J).
[3]See previous footnote.

When the matter came on before me for hearing, the parties consented to such orders as may be appropriate to convert this proceeding into an…

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.

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Details

Case: [2011] VSC 585
Decision Date: 15 November 2011. Reasons published 16 November 2011.

CaseChat Overview and Summary

The case of Trkulja v Gibsons Solicitors Pty Ltd involved a claim for an alleged debt for legal fees. The dispute originated in the Magistrates’ Court of Victoria, where a summary order for debt recovery was made against the defendant, Gibsons Solicitors Pty Ltd, in their absence. The plaintiff, Trkulja, subsequently sought a rehearing of the matter on the basis of alleged irregularities in the service of the application for the summary order. The primary issues before the court were whether the magistrate correctly exercised their discretion in refusing to hear and determine the question of whether the summary order had been regularly obtained, and whether the magistrate correctly required the defendant to demonstrate an arguable defence before considering the application.

The court found that the magistrate had erred in law. The magistrate's refusal to consider the question of whether the summary order had been regularly obtained was deemed to be a jurisdictional error, as it deprived the defendant of a fair opportunity to challenge the validity of the order. Furthermore, the court held that the magistrate's requirement for the defendant to demonstrate an arguable defence before proceeding with the application for rehearing constituted a denial of procedural fairness. These errors were significant enough to warrant the quashing of the decision refusing the application for rehearing. Ultimately, the decision was quashed by consent, indicating that both parties agreed that the original decision was flawed and should be set aside.

Orders