White v Ropata - [2017] VSC 518

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S CI 2016 4886

GREGORY WHITE	Plaintiff
v
STEWART ROPATA	First Defendant
THE MAGISTRATES’ COURT OF VICTORIA	Second Defendant

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JUDGE:	LANSDOWNE AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	21 August 2017
DATE OF JUDGMENT:	4 September 2017
CASE MAY BE CITED AS:	White v Ropata & anor
MEDIUM NEUTRAL CITATION:	[2017] VSC 518 First Revision: 4 September 2017

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JUDICIAL REVIEW – Magistrates’ Court order made by a judicial registrar - some grounds for judicial review summarily dismissed – Trial on remaining grounds – Allegations of fraud not made out – No error in Judicial Registrar not adverting in his reasons to a matter not put by the plaintiff to the defendant in cross examination – Error of law on the face of the record by Judicial Registrar in making a finding in his reasons for which there was no evidence.

JUDICIAL REVIEW – Consideration of discretionary refusal of judicial review – Whether a more favourable outcome on rehearing reasonably possible – Failure to utilise other mechanisms for review and appeal – Magistrates’ Court Notice of Arbitration said arbitration would be conducted by a magistrate – Notice of Order Made ambiguous as to whether the arbitration was conducted by a magistrate or a judicial registrar – Plaintiff did not know that the arbitration had been conducted by a judicial registrar until after this proceeding commenced – Failure to seek review of the judicial registrar’s order by a magistrate not a reason to refuse judicial review – Plaintiff unrepresented and no evidence of any prejudice to the defendants by reason of plaintiff pursuing judicial review rather than appeal on a question of law – Facts in Kuek v Victoria Legal Aid and anor 3 VR 289 distinguished – Approach in Hoe v Manningham City Council [2013] VSC 195 applied – Judicial review granted – Magistrates’ Court Act 1989 (Vic) s 16K – Magistrates’ Court (Judicial Registrars) Rules 2015 (Vic), r 16.

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APPEARANCES:	Counsel	Solicitors
The Plaintiff appeared in person
For the First Defendant	Mr D J Staindl	Ligeti Partners
No appearance for the Second Defendant

TABLE OF CONTENTS

Introduction and summary............................................................................................................... 1

Nature of judicial review.................................................................................................................. 2

Grounds in this case.......................................................................................................................... 3

The proceeding before the Judicial Registrar............................................................................... 7

The pleadings................................................................................................................................ 7
Referral to arbitration by a judicial registrar............................................................................ 8
The arbitration............................................................................................................................. 10

Order and reasons of the Judicial Registrar................................................................................ 15

Ground 11: allegation of fraud...................................................................................................... 16

The allegations............................................................................................................................ 16
Discussion.................................................................................................................................... 18

Grounds 6 and 8: sign at the entrance of the service road........................................................ 19

Ground 11: statement that parties agreed that ‘no left turn’ sign could not be seen........... 22

Discretionary grounds for the refusal of relief........................................................................... 22

No more favourable outcome will be achieved..................................................................... 22
Alternative avenues for redress................................................................................................ 24
Review by a magistrate.................................................................................................... 24
Appeal on a question of law............................................................................................ 27

Conclusion and orders.................................................................................................................... 31

HER HONOUR:

Introduction and summary

The plaintiff seeks judicial review of the decision…

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 White v Ropata

Details

AGLC: White v Ropata [2017] VSC 518
Case: [2017] VSC 518
Decision Date: 4 September 2017

CaseChat Overview and Summary

In the matter of White v Ropata, the plaintiff, Mr White, sought judicial review of a decision made by a judicial registrar in the Magistrates’ Court of Victoria. The dispute arose from an order made by the judicial registrar concerning a notice of arbitration, which had been filed by Mr White. Mr Ropata, the defendant, contested the order, leading to a judicial review application.

The legal issues before the court included whether there were grounds for judicial review of the judicial registrar's order and whether it was appropriate to grant a discretionary refusal of judicial review. The court also considered whether it was reasonably possible that a more favourable outcome would result from a rehearing and whether the plaintiff's unrepresented status and failure to utilise other mechanisms for review and appeal were relevant factors. Additionally, the court examined whether there was an error of law on the face of the record in the judicial registrar's reasons for making a finding for which there was no evidence.

The court found that some of the grounds for judicial review were summarily dismissed. However, the allegations of fraud were not substantiated. The court held that there was no error in the judicial registrar not addressing a matter that was not raised by the plaintiff during cross-examination. Nonetheless, the court identified an error of law on the face of the record, as the judicial registrar made a finding in his reasons for which there was no evidence. The court also considered the discretionary refusal of judicial review, noting that the plaintiff was unrepresented, and there was no evidence of any prejudice to the defendants by reason of the plaintiff pursuing judicial review rather than an appeal on a question of law. The approach in Hoe v Manningham City Council was applied, and judicial review was granted.

The court ordered that the application for judicial review be allowed, and the decision of the judicial registrar be quashed. The matter was remitted to the Magistrates’ Court for rehearing before a different judicial registrar. The court emphasised that the plaintiff's unrepresented status and failure to seek review of the judicial registrar’s order by a magistrate were not reasons to refuse judicial review. The court distinguished the facts in Kuek v Victoria Legal Aid and applied the principles outlined in Hoe v Manningham City Council to reach its decision.

Orders