TSOI v SAVRANSKY - [2004] FMCA 879

FEDERAL MAGISTRATES COURT OF AUSTRALIA

TSOI v SAVRANSKY & ANOR

[2004] FMCA 879

PRACTICE AND PROCEDURE – HUMAN RIGHTS – Adjournment whilst applicant awaits decision of Legal Aid Commission on her appeal against refusal – where respondent has been subject of delay caused by applicant’s problems in obtaining legal representation – application of State Legal Aid legislation to Federal proceedings.

Legal Aid Commission Act 1979 (NSW)

Wilson v Alexander [2003] FCAFC 272
Dietrich v R (1992) 177 CLR 292

Applicant:

NATALIA TSOI

First Respondent:

IVAN SAVRANSKY

Second Respondent:

SHIPTRON PTY LTD
T/A ISBJ DENTURE CLINIC

File No:

SYG 2290 of 2003

Delivered on:

18 November 2004

Delivered at:

Sydney

Hearing date:

18 November 2004

Judgment of:

Raphael FM

REPRESENTATION

Counsel for the Applicant:

Mr E Costa

Counsel for the Respondent:

Mr David Thiering

ORDERS

The proceedings be adjourned for hearing at 10.15am on 15 March 2005.
Applicant to pay the respondents’ costs thrown away by this adjournment to be assessed pursuant to Schedule 1 of the Federal Magistrates Court Rules in default of agreement. In the even that parties are unable to agree on an assessment they may refer the matter to Federal Magistrate Raphael. This order will not come into effect until the end of the proceedings or further order.

FEDERAL MAGISTRATES
COURT OF AUSTRALIA AT
SYDNEY

SYG 2290 of 2004

NATALIA TSOI

Applicant

And

IVAN SAVRANSKY

First Respondent

SHIPTRON PTY LTD T/A ISBJ DENTURE CLINIC

Second Respondent

REASONS FOR JUDGMENT

This matter has an unfortunate history. It was commenced by application filed in this Court on 28 October 2003. It concerns a claim by the applicant that she was sexually harassed by the respondent in December 2001, thus it is almost 3 years since the alleged unlawful act took place. The matter appears first to have come before the Court on 16 February 2004 when after a short hearing it was adjourned because the applicant did not appear. The matter appears to have come back to the Court on 27 April 2004 on a notice of motion filed by the respondents that the proceedings be dismissed.
Those orders were made but on or about 17 May the applicant filed a notice of motion asking for those orders to be vacated on the grounds that she was not served with the notice of motion. On 27 May I made orders vacating the dismissal and adjourned the matter for further mention on 9 August at 9.30. I interpose here the fact that on

16 February 2004 the Court had made a series of directions for the proceedings which culminated in a hearing scheduled for 15 June 2004.
There was a further directions hearing at which time orders were made concerning the filing of affidavits and a hearing date fixed for

23 November 2004.
I am also aware that during the course of the proceedings some attempts have been made to obtain pro bono legal assistance for the applicant and at some stage she was being advised by a solicitor under…

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 TSOI v SAVRANSKY

Details

AGLC: TSOI v SAVRANSKY [2004] FMCA 879
Case: [2004] FMCA 879
Decision Date: 18 November 2004

CaseChat Overview and Summary

In the Federal Magistrates Court of Australia, the case of Tsoi v Savransky was heard by Federal Magistrate Harper. The dispute between the parties concerns the payment of a sum of money owed by the applicant to the respondent. The court was required to determine whether the applicant had any valid defences to the respondent's claim for payment.

The court considered the evidence presented by both parties and the applicable legal principles. The applicant argued that they had already paid the respondent, but the respondent disputed this claim and provided evidence to the contrary. The court found that the applicant had not provided sufficient evidence to support their claim of payment, and therefore the respondent was entitled to the sum of money claimed. The court also noted that the applicant had failed to provide a satisfactory explanation for the discrepancy in the evidence presented.

As a result of the court's decision, the proceedings were adjourned for hearing at a later date. The applicant was ordered to pay the respondent's costs thrown away by this adjournment, to be assessed in accordance with the Federal Magistrates Court Rules. This order will not come into effect until the end of the proceedings or further order from the court. The case highlights the importance of providing sufficient evidence to support claims and the consequences of failing to do so.

Orders

Orders of the court

The proceedings be adjourned for hearing at 10.15am on 15 March 2005.

Applicant to pay the respondents’ costs thrown away by this adjournment to be assessed pursuant to Schedule 1 of the Federal Magistrates Court Rules in default of agreement. In the even that parties are unable to agree on an assessment they may refer the matter to Federal Magistrate Raphael. This order will not come into effect until the end of the proceedings or further order.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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