| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S ECI 2022 00889
BETWEEN:
| LUKE WARREN | Appellant |
| v | |
| EFFICIENT PURE PLUMBING PTY LTD (ACN 156 020 825) | Respondent |
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JUDGE: | Barrett AsJ |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 13 July 2022 and 30 August 2022 |
DATE OF RULING: | 7 October 2022 |
CASE MAY BE CITED AS: | Warren v Efficient Pure Plumbing Pty Ltd |
MEDIUM NEUTRAL CITATION: | [2022] VSC 594 |
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APPEAL FROM MAGISTRATES’ COURT — Magistrates’ Court Act 1989 (Vic) s 109 — Application for summary dismissal — Supreme Court (General Civil Procedure) Rules 2015 (Vic) r 58.10(9) — Whether the notice of appeal identifies sufficiently or at all a question of law — Whether the appellant has an arguable case — Whether there is a domestic building dispute — Domestic Building Contracts Act 1995 (Vic) s 57 — Whether the Magistrates’ Court proceeding ought to have been stayed due to a dispute resolution clause in the contract — Commercial Arbitration Act 2011 (Vic) s 8 — Whether there has been a miscarriage of justice — Gerlach v Clifton Bricks Pty Ltd (2002) 209 CLR 478 — Held that the appellant did not have an arguable case — Held that there was no miscarriage of justice — Appeal dismissed.
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APPEARANCES: | Counsel | Solicitors |
| The Appellant in person | ||
| For the Respondent | Mr J Gladwin, solicitor | Gladwin Legal |
TABLE OF CONTENTS
Summary.............................................................................................................................................. 1
Applications........................................................................................................................................ 1
Evidence............................................................................................................................................... 1
Background......................................................................................................................................... 2
Interlocutory hearing in the Magistrates’ Court....................................................................... 3
Final hearing in the Magistrates’ Court..................................................................................... 5
The appeal brought by Mr Warren................................................................................................. 6
Application for summary dismissal............................................................................................... 8
Summary dismissal principles.................................................................................................. 10
Does the Notice of Appeal identify questions of law arising from the final order?......... 11
DBCA question............................................................................................................................ 12
The dispute resolution clause question................................................................................... 16
First statement on the substance of the dispute............................................................ 19
Frivolous, vexatious or abuse of process................................................................................. 21
Conclusion......................................................................................................................................... 22
HIS HONOUR:
Summary
On 16 February 2022, an order was made in the Magistrates’ Court that the appellant (‘Mr Warren’) pay the respondent (‘EPP’) $3,880 plus interest and costs. Mr Warren has appealed that final order pursuant to s 109 of the Magistrates’ Court Act 1989 (Vic). EPP has applied for the summary dismissal of the appeal pursuant to r 58.10(9) of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) (‘Rules’) (‘application for summary dismissal’). The central question for the purposes of that application is whether Mr Warren has suffered a miscarriage of justice by reason of the refusal of Judicial Registrar Andrew (‘Registrar’) to stay the proceeding in the Magistrates’ Court so that it could be resolved by arbitration under the Commercial Arbitration Act 2011 (‘CAA’), or in the Victorian Civil and Administrative Tribunal (‘VCAT’).
For the following reasons, I find that the questions of law in the notice of appeal, even on their most charitable interpretation, are not arguable, and accordingly the appeal…
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- AGLC
- Warren v Efficient Pure Plumbing Pty Ltd [2022] VSC 594
- Case
- [2022] VSC 594
- Decision Date
CaseChat Overview and Summary
The central legal issues were whether Warren's notice of appeal identified a question of law, whether he had an arguable case, and whether the Magistrates’ Court should have stayed the proceedings in light of the contract's dispute resolution clause. Additionally, the court needed to determine if there was a miscarriage of justice warranting an appeal.
The court found that Warren's notice of appeal did not sufficiently identify a question of law, nor did it establish an arguable case. The court noted that the Domestic Building Contracts Act 1995 (Vic) did not prevent the operation of the dispute resolution clause in the contract. Furthermore, the court ruled that there was no miscarriage of justice, as the appeal did not present a substantial question of law or fact that could have affected the outcome of the Magistrates’ Court proceedings. Consequently, the appeal was dismissed, and the original decision of the Magistrates’ Court was upheld.
No further orders were made by the court.
Orders
Orders of the court
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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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