Waddington v Kha - [2015] VSC 339

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S CI 2013 5239

NIGEL WADDINGTON	Plaintiff
v
DAVID KHA	Defendant

---

JUDGE:	Daly AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	4 May 2015
DATE OF JUDGMENT:	22 July 2015
CASE MAY BE CITED AS:	Waddington v Kha
MEDIUM NEUTRAL CITATION:	[2015] VSC 339

---

JUDICIAL REVIEW AND APPEALS – Appeal from Magistrates’ Court - Magistrates’ Court Act 1989 (Vic), s 109 – Question of law must arise – Tomasevic v Travaglini (2007) 117 VR 100 considered and applied – Procedural fairness – Self-represented litigant - Civil Procedure Act 2010 (Vic), s 7 – Magistrates’ Court General Civil Procedure Rules 2010 (Vic) r 1.21 and r 1.24 – Inadequacy of reasons – Dimatos v Coombe & Ors [2011] VSC 619 considered – Matter remitted for rehearing.

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	In person
For the First Defendant	No appearance
For the Second Defendant	Mr B Cook	Cook & Associates

HER HONOUR:

This is an appeal from orders made by the Magistrates’ Court at Dandenong on 10 September 2013. The background to the dispute, which has also been the subject of a proceeding at the Victorian Civil and Administrative Tribunal (‘VCAT’) is as follows: the appellant, Mr Waddington, lived for a period of approximately 14 months in 2009 and 2010 at 51‑53 John Street, Oakleigh (‘premises’). He had an informal arrangement with either or both of Mr David Kha and Mr Nathan Massie, who leased the premises under a commercial lease. It seems that the premises were intended to be used for commercial purposes, being zoned as such, but a number of people also lived at the premises, and paid a rental of approximately $130 per week each, which also included a contribution to utility costs. The nature of the arrangements at the premises is a critical issue in the dispute between the parties.

Mr Waddington departed the premises suddenly, and possibly quite unexpectedly, in November 2010, when he was incarcerated. He left all of his possessions in his room at the premises. The events which followed are a little unclear. However, on 19 January 2011, Mr Kha wrote to Mr Waddington’s mother in the following terms:

Hi Mrs. Waddington
I’m writing in regards to Nigel’s Rent and the next Payment for the Period of 21^st Dec to the 21^st Jan.
My Calculation for the month is:
$130pw x 52 weeks = $6760 divide by 12 months (to work out the monthly payments) = $563.33
We had 4 people pack up his room and it looks immaculate! We basically got plastic containers and packaged up as much books as we could and also put some of his books and clothes in suitcases.
Mind you, he did have a lot of paper, in the form of traffic fines, train tickets, documents and more books!
For some other items, we have placed them into garbage bags to keep the room tidy…

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 Waddington v Kha 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: [2015] VSC 339
Decision Date: 22 July 2015

CaseChat Overview and Summary

In this case, the appellant, Mr. Waddington, appealed a decision of the Magistrates’ Court of Victoria, which had dismissed his claim for relief under the Civil Procedure Act 2010 (Vic). The respondent, Mr. Kha, was the party against whom the claim was made. The central dispute involved the adequacy of reasons provided by the magistrate in dismissing Mr. Waddington's claim, as well as the procedural fairness afforded to Mr. Waddington, who represented himself.

The primary legal issues the court had to address were whether the magistrates' decision involved a question of law warranting appeal under section 109 of the Magistrates’ Court Act 1989 (Vic) and whether the reasons provided were sufficient under the Civil Procedure Act 2010 (Vic) and the Magistrates’ Court General Civil Procedure Rules 2010 (Vic). The court also had to determine if procedural fairness was observed, particularly given that Mr. Waddington was self-represented.

The court found that the magistrate's decision involved a question of law, as it pertained to the interpretation and application of the law in dismissing Mr. Waddington's claim. The court considered the requirement for adequate reasons, as outlined in Dimatos v Coombe & Ors [2011] VSC 619, and found that the reasons provided were inadequate. The court also noted that procedural fairness was not adequately observed, especially given the self-represented status of Mr. Waddington. Consequently, the appeal was allowed, and the matter was remitted for rehearing to ensure proper procedural fairness and adequate reasons are provided.

The final order of the court was that the appeal was allowed, and the matter was remitted to the Magistrates’ Court for rehearing. The court emphasised the need for the magistrate to provide clear and sufficient reasons for any future decision and to ensure that procedural fairness is observed, particularly for self-represented litigants.

Orders