Wilson Parking Australia (1992) Pty Ltd v Roads Corporation
[2020] VSC 135
•26 March 2020
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S ECI 2019 00163
| WILSON PARKING AUSTRALIA (1992) PTY LTD (ACN 052 475 911) | Plaintiff |
| v | |
| ROADS CORPORATION | First Defendant |
| and | |
| MAGISTRATES’ COURT OF VICTORIA | Second Defendant |
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JUDGE: | Richards J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 7 February 2020 |
DATE OF JUDGMENT: | 26 March 2020 |
CASE MAY BE CITED AS: | Wilson Parking Australia (1992) Pty Ltd v Roads Corporation |
MEDIUM NEUTRAL CITATION: | [2020] VSC 135 |
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ADMINISTRATIVE LAW – Judicial review – Magistrate refused application for preliminary discovery under r 32.03 Magistrates’ Court General Civil Procedure Rules 2010 (Vic) – Whether magistrate misconstrued or misapplied r 32.03 – No error established – Road Safety Act 1986 (Vic), s 90R – Magistrates’ Court General Civil Procedure Rules 2010 (Vic), r 32.03 – Magistrates’ Court Act 1989 (Vic), s 109.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr B Parker | Mills Oakley |
| For the First Defendant | Ms KM Evans | Minter Ellison |
HER HONOUR:
Wilson Parking Australia (1992) Pty Ltd operates a 56-bay car park at the Adina Hotel in Flinders Street, Melbourne. A notice at the entry to the car park states ‘All vehicles parked in this car park must display a valid Pay & Display ticket’. There is a payment machine on each level of the car park. A notice next to each payment machine sets out the fees payable, which in 2018 ranged from $4 for 30 minutes, to $60 for three or more hours’ casual parking.
On numerous occasions during 2018, two vehicles were parked in the car park without any payment having been made. The first vehicle, a 2006 BMW sedan, failed to display a valid ticket on 150 occasions between 16 February and 18 October 2018. The second vehicle, a 2012 BMW sedan, failed to display a valid ticket on 52 occasions during that period.
On 4 October 2018, Anthony Orelli, the Area Operations Manager for Wilson Parking, put a yellow sticker on the front passenger side window of each vehicle. It read:
NOTICE OF TRESPASS
This vehicle has breached our terms and conditions of parking on multiple occasions.
Wilson Parking Australia 1992 Pty Ltd revokes your limited licence and right of entry (implied or express) to this car park. Any further entry by you is a trespass to land.
Trespass to land is an unjustified entry onto private land without lawful excuse. An action in trespass may result in liability to pay damages and injunction.
You are forbidden to return to this car park. If you disregard this notice and re-enter this car park, you are trespassing and legal proceedings may be issued against you.
Both vehicles were in the car park the next day. This time, Mr Orelli put a red sticker on the front passenger side window of each vehicle, which read:
FINAL NOTICE OF TRESPASS
You were formerly notified on 4 October 2018 that your limited licence (express or implied) to lawfully enter this car park was revoked. Accordingly you are trespassing.
Trespass to land is an unjustified entry onto private land without lawful excuse. An action in trespass may result in liability to pay damages and injunction.
Wilson Parking Australia 1992 Pty Ltd (‘Wilson’) gives you FINAL NOTICE that if you re-enter this car park, legal proceedings will be issued against you, without further notice. Should legal proceedings be necessitated, Wilson will seek an order for payment of its legal costs from you on an indemnity basis.
It appears that, despite these notices, the vehicles re-entered the car park. As a result, on 19 October 2018, Wilson Parking applied to the Magistrates’ Court of Victoria for preliminary discovery from the Roads Corporation (VicRoads), under r 32.03 of the Magistrates’ Court General Civil Procedure Rules 2010 (Vic). In its application, Wilson Parking sought discovery from VicRoads of documents or other material giving the name, address, and contact details of the registered owner[1] of each vehicle.
[1]The Road Safety Act 1986 (Vic) uses the term ‘registered operator’ to refer to ‘the person recorded on the register as the person responsible for the vehicle’: see s 3(1), definition of ‘registered operator’ and s 9A. The Act does not use the term ‘registered owner’, since the register does not provide evidence of title: see s 9B. Although Wilson Parking sought information about the ‘registered owner’ of each vehicle, it was clear that this was intended to refer to the ‘registered operator’. The magistrate correctly treated the terms as interchangeable.
Mr Orelli made an affidavit in support of the application, in which he said that he was advised by the solicitors for Wilson Parking that it had an action in trespass against the registered owners of both vehicles. He said that Wilson Parking sought to ascertain from VicRoads ‘the identity of the registered owners of the First Vehicle and the Second Vehicle for the relevant period so that it can issue proceedings for an action in trespass against those persons’.
The application was opposed by VicRoads. It was heard and refused by Magistrate Goldberg on 16 November 2018.
In this proceeding, Wilson Parking seeks judicial review of the magistrate’s decision, under Order 56 of the Supreme Court (General Civil Procedure) Rules 2015 (Vic). It seeks orders quashing the magistrate’s decision, and remitting its application for preliminary discovery for determination by the Magistrates’ Court, differently constituted. Its grounds of review are, first, that the magistrate misconstrued r 32.03 and, second, that his Honour did not apply r 32.03 to the facts.
For the reasons that follow, neither ground is made out, and the application must be dismissed.
Preliminary discovery in the Magistrates’ Court
Rule 32.03 of the Civil Procedure Rules provides:
Discovery to identify a defendant
(1) The Court may make an order under paragraph (2) if an applicant, having made reasonable inquiries, is unable to ascertain the description of a person sufficiently for the purpose of commencing a proceeding in the Court against that person (in this Rule called the person concerned) and it appears that some person has or is likely to have knowledge of facts, or has or is likely to have or has had or is likely to have had in the person’s possession any document or thing, tending to assist in such ascertainment.
(2) The Court may order that the person, and in the case of a corporation, the corporation by an appropriate officer, must—
(a) attend before the Court to be orally examined in relation to the description of the person concerned;
(b) make discovery to the applicant of all documents which are or have been in the possession of the person or the corporation relating to the description of the person concerned.
(3) If the Court makes an order under paragraph (2)(a), it may order that the person or corporation against whom or which the order is made must produce to the Court on the examination any document or thing in the person’s or the corporation’s possession relating to the description of the person concerned.
An applicant for preliminary discovery need not establish that the information sought will necessarily reveal the identity of the prospective defendant. As r 32.03(1) makes clear, it is enough that the information tends to assist in ascertaining the defendant’s identity. The information sought ‘need not be the last piece in the jigsaw puzzle’.[2]
[2]Roads and Traffic Authority of NSW v Australian National Car Parks Pty Ltd [2007] NSWCA 114, [17].
This is significant in a case where the applicant’s claim is against the driver of a vehicle, who may not be the same person as the vehicle’s registered operator. Clearly, the name and contact details of the registered operator of a vehicle is information ‘tending to assist’ in the identification of the driver of the vehicle at a given time, even if the registered operator and the driver are different people.[3]
[3]Australian National Car Parks, [26]–[27]; Roads and Traffic Authority of New South Wales v Care Park Pty Ltd [2012] NSWCA 35, [120] (Barrett JA, Beazley, Basten and Campbell JA agreeing).
An order for preliminary discovery will not be made where the proceeding that the applicant proposes to bring against the person concerned is speculative, or based on suspicion or conjecture. While it is not necessary for the applicant to demonstrate a prima facie case, it is not enough merely to assert that there is a cause of action, or the mere possibility of a cause of action, against the person concerned.[4]
[4]Rush v Commissioner of Police (2006) 150 FCR 165, [6] citing Hooper v Kirella Pty Ltd (1999) 96 FCR 1, [39].
Magistrate’s reasons
The magistrate gave an oral decision at the conclusion of the hearing. After dealing with some procedural matters, his Honour said:
From its records, [Wilson Parking] has identified that two particular cars have parked in that car park on a number of occasions — I think it was said about 150 in relation to one and 52 or so in relation to the other — without paying their fees. The plaintiff resorted to a novel approach. It warned the driver of the vehicle, by the placing of a sticker upon the vehicle, that this parking without meeting contractual terms was not acceptable, amounted to trespass and thereafter further notice, if it persisted, then, proceedings may be taken out to determine that trespass. They’re my words. They’re not the words on the sticker. The … words of the sticker are demonstrated in the affidavit material.
A right of trespass, of course, doesn’t attach to an item which may have been left upon some premises. The trespass, in general terms, is the entering upon a place where one is prohibited by notice or otherwise. In this case, by notice, it’s alleged. The right of trespass at law, or the relief in relation to trespass, is a relief against a person or an entity that can be identified. And in relation to a motor car and the entry upon premises in excess of a licence, insofar as that may amount to a trespass, the person who would be subject to that claim is the person who brought the motor car upon the premises. That may be a person who’s described as the proprietor, or the owner, or the registered person in relation to a motor car. It may not.
Having set out the facts and the cause of action of trespass, the magistrate then dealt with the application for preliminary discovery:
There is nothing in the material that seeks to persuade or can be relied upon to say whether or not it’s more likely or not that the person who is the registered proprietor or otherwise owner of a motor car who is the driver of a motor car. They might well be the driver but, as has been referred to in the course of argument, there are many and a myriad of examples where a person who may control — drive, is the proper word, drive a motor car, does not fall into the category of a person who is a proprietor, owner or registered proprietor or owner or operator of a motor car.
Preliminary discovery may only be granted when the — in the first instance, the applicant has shown that there is a reasonable cause of action available, an arguable cause of action or a cause of action with some reasonable prospect. It has been described in all different ways but all it means is that there’s a cause of action available to the proposed plaintiff against a proposed disclosed person if there be preliminary discovery. It’s not for the purpose of fishing and it’s not said, in this application, that it be anything more than, as is supported in paragraph 15, I think it was:
[By] this application, the [applicant] seeks to ascertain from the respondent the identity of the registered owners of the first vehicle and the second vehicle for the relevant period so it can issue [proceedings for an] action in trespass against those persons.
That is simply a fishing exercise of itself because it is not said that — nor is it the fact that there is a cause of action available against a registered operator, owner, proprietor, whatever the proper description is. The cause of action, if available, is against the person who placed the vehicle, entered in breach of its licence or invitation. That person is not — the identity of that person is not what’s sought in this application for preliminary discovery.
In those circumstances, the magistrate refused the application.
Did the magistrate misconstrue or misapply r 32.03?
Wilson Parking submitted that the magistrate had misconstrued r 32.03 of the Civil Procedure Rules, by not giving effect to the words ‘tending to assist’ in r 32.03(1).
It referred to two decisions of the New South Wales Court of Appeal, Roads and Traffic Authority of NSW v Australian National Car Parks Pty Ltd[5] and Roads and Traffic Authority of New South Wales v Care Parks Pty Ltd.[6] Those decisions both held that the words ‘tends to assist in ascertaining’, in the equivalent rule of the Uniform Civil Procedure Rules 2005 (NSW),[7] should not be read down to mean ‘established’. In Australian National Car Parks, the Court of Appeal observed:[8]
The putative contract claim would lie against the driver of the car on the day in question. It is not suggested that there is some basis for inferring that the driver was the owner’s agent as a matter of contract law. But discovery of the owner and registered operator would enable the applicant to know details of the person with day to day control of the vehicle. For many households, the person who owns or manages the vehicle garaged at that address will be its only driver. For practically all households, the owner will know who was the driver on a particular day.
[5][2007] NSWCA 114.
[6][2012] NSWCA 35.
[7]Rule 5.2(1).
[8]Australian National Car Parks, [26].
On that basis, Wilson Parking submitted, it was wrong of the magistrate to refuse the application because the registered operator of the vehicles might not be the drivers against whom it sought remedies in trespass. The name and contact details of the registered operator of each vehicle would tend to assist Wilson Parking to identify the people who had repeatedly parked them in the car park without paying. Indeed, it submitted that it was a matter of judicial notice that the registered operators were likely to be the drivers of the vehicles.
This submission proceeded on a misunderstanding of the magistrate’s decision. The magistrate did not refuse the application because information about the identity of the registered operators of the vehicles would not tend to assist Wilson Parking to ascertain who drove the vehicles into the car park. He refused the application because Wilson Parking sought to ascertain the identity of the registered operators of the vehicles ‘so that it can issue proceedings for an action in trespass against those persons’.[9]
[9]Affidavit of Anthony Orelli dated 18 October 2018, [15].
It is apparent from the transcript of the hearing before the magistrate that his Honour considered that a claim in trespass against the registered operator of either vehicle was purely speculative. In the course of argument, the magistrate quizzed counsel for Wilson Parking as to the basis for a claim in trespass against the registered operator of a vehicle. He concluded that the cause of action, if available, was against the person who drove the vehicle into the car park. The material did not establish that it was more likely than not that the driver was the registered operator of the vehicle.
This conclusion was plainly correct. While it is possible that the driver of each vehicle was also its registered operator, it is also possible that some person other than the registered operator drove the vehicle into the car park without paying, and did so again after receiving the trespass notices. There was nothing before the magistrate from which he could infer that the registered operator was the driver, and therefore the proper defendant to a trespass claim.
I do not agree that judicial notice can be taken that a driver of a vehicle is likely to be its registered operator. That is not my own experience, and is not what was held in Australian National Car Parks.[10] In the passage set out at [18] above, the New South Wales Court of Appeal merely observed that the registered operator of a vehicle is likely to know who was driving the car on a given day. It did not conclude that it was likely that the registered operator was also the driver.
[10]See in particular [26]–[27].
The magistrate did not misconstrue r 32.03, nor did he fail to apply it to the facts. His Honour simply decided the application that Wilson Parking made. Had Wilson Parking instead sought preliminary discovery of information that would assist it to ascertain the identity of the drivers of the vehicles, the outcome may have been different.
VicRoads’ alternative arguments
My conclusion that the magistrate did not err in either of the ways contended by Wilson Parking is sufficient reason to dismiss the proceeding. However, VicRoads advanced a number of other reasons why the relief sought by Wilson Parking should not be granted. As these were fully argued, I will express my conclusions about them.
Trespass to land
VicRoads submitted that the evidence before the magistrate did not establish a cause of action in trespass against the registered owner or the driver of either vehicle. The tort of trespass to land protects a person’s interest in maintaining the right to exclusive possession of land, free from uninvited physical intrusion.[11] The tort is committed by intentionally or negligently entering or remaining on land in the possession of another, without permission or other lawful authority.[12]
[11]New South Wales v Ibbett (2006) 229 CLR 638, [29].
[12]R.P. Balkin and J.L.R. Davis, Law of Torts (LexisNexis Butterworths, 5th ed, 2013), [5.1].
VicRoads argued that the elements of trespass could not be made out on the facts, because there was no evidence:
(a) about the identity of the driver or the driver’s purpose in not paying to park in the car park;
(b) that Wilson Parking had given notice to the person granted a licence to enter the car park that he or she was no longer permitted to do so, because the sticker was not addressed to the person who drove the car the day before;
(c) that the same person whose licence was revoked later re-entered the car park in breach of the licence, after the sticker was put on the car.
This submission was not persuasive. If discovery had been sought in order to identify the drivers of the vehicles, the magistrate only had to be satisfied that Wilson Parking had a reasonable prospect of succeeding in actions for trespass against the drivers. Subject to one matter, there was evidence that met that threshold. It could be inferred from the evidence that each car had only one driver, who had deliberately and repeatedly parked in the car park without paying, contrary to the conditions of entry. It was also open to infer that each driver had seen the trespass notices that were stuck to the cars on 4 and 5 October 2018, and had nevertheless returned to the car park.
The reservation I have is that it was not at all clear that Wilson Parking had a right to exclusive possession of the car park that could be vindicated by an action in trespass. Indeed, the little evidence that there was suggested that Wilson Parking merely ‘operated’ the car park on behalf of some other person who was entitled to exclusive possession of it.
For that reason, I was not satisfied that Wilson Parking had an arguable trespass claim against the drivers of the cars. Even if I had been satisfied that the magistrate had erred, I would have declined to remit the application to the Magistrates’ Court.
Section 90R, Road Safety Act
VicRoads also submitted that, if Wilson Parking established that the magistrate was in error, I should refuse the relief sought in light of s 90R of the Road Safety Act 1986 (Vic). At the time of the hearing before the magistrate, that section provided:[13]
[13]Section 90R has since been amended to change the reference to ‘the Corporation’ in s 90R(1) to a reference to ‘the Secretary’: Transport Legislation Amendment Act 2019 (Vic), s 116; Schedule 1, item 206. The amending Act abolished the Roads Corporation and transferred its functions to, in this case, the Secretary to the Department of Transport.
Discovery for purpose of recovery of private car park fees
(1) Any entitlement to a preliminary discovery order against the Corporation for the purpose of the recovery of private car park fees is abrogated by this section.
(2) A preliminary discovery order is considered to be for the purpose of the recovery of private car park fees if the order is sought to assist the applicant to ascertain the identity or whereabouts of a person sufficiently for the purpose of commencing a proceeding against the person for the recovery of private car park fees.
Example
An order made under Order 32.03 of Chapter I of the Rules of the Magistrates’ Court to assist in such ascertainment.
(3) In this section—
private car park fee means any amount alleged to be payable under the terms and conditions of a contract, arrangement or understanding in relation to the use of a car park (such as an amount payable for the use of the car park and including an amount payable for breaching those terms and conditions), but does not include an amount alleged to be payable under the terms and conditions of a contract that is in writing and signed by the relevant parties.
Section 90R was inserted into the Road Safety Act by the Road Safety Amendment (Private Car Parks) Act 2015 (Vic). In her second-reading speech for the amending bill, the Minister explained that it was designed to ‘inhibit the practice of car park operators abusing the process of preliminary discovery to support a dubious business model of posting mass demands to customers for liquidated damages that have been found to be unenforceable’.[14] She explained the rationale for the amendments as follows:[15]
[14]Victoria, Parliamentary Debates, Legislative Assembly, 10 June 2015, 1883, (Jane Garrett, Minister for Consumer Affairs, Gaming and Liquor Regulation).
[15]Ibid, 1882–3.
This bill will meet the government’s commitment to protect Victorians from the unfair and misleading practices of some private car park operators. It will achieve this by amending the Road Safety Act 1986 to restrict the ability of private car park operators to obtain the names and addresses of vehicle owners from VicRoads to recover private car park fees.
A number of car park operators operate under a business model whereby customers are required to estimate the amount of time they will stay on entry to the car park, buy a ticket for the appropriate period, and then display it on their dashboard.
If a customer either fails to obtain a ticket, or parks for longer than the period they paid for, an inspector employed by the car park operator may place a notice on the vehicle’s windscreen. The notice looks similar to an infringement notice, but is actually a claim for liquidated damages.
Where a customer does not pay the amount specified in the payment notice, the car park operator can obtain a preliminary discovery order in the Magistrates Court requiring VicRoads to disclose the name and address of the registered owner of the vehicle in question. The car park operator will then write a series of letters of demand, demanding that the customer pays the amount owed, plus an additional late payment fee.
Alternatively, a customer may not receive a notice claiming liquidated damages, but instead first find out about a claim when they are sent a letter of demand from the car park operator demanding payment.
Additionally, it is common practice for the car park operators to onsell the debts to debt collection agencies. These agencies will proceed to write similarly threatening letters of demand to the car park customers.
These practices have given rise to a number of matters of significant public concern.
The actions of these car park operators amount to an abuse of court process. The rules of preliminary discovery, as set out in the relevant court rules, allow applicants to seek information to assist in identifying a person against whom they wish to commence proceedings. However, some car park operators are using the preliminary discovery process not as a genuine preliminary to a potential court proceeding, but instead to support a business model of posting mass demands to customers and relying on a proportion of them paying.
On average, car park operators are requesting the details of over 50 000 vehicles per year. In some instances, car park operators are using single applications to request the details of over 1000 vehicles. It is impossible for a court to properly assess whether a potential cause of action exists in relation to each of these applications. In practice, only an extremely small number of these disputes actually result in car park operators commencing civil proceedings in a court.
Additionally, there is a risk that the uncontrolled release of information under preliminary discovery could undermine the community’s confidence in the ability of the government to protect their personal information. It also has the potential to affect the integrity and accuracy of data held by government agencies because customers may become reluctant to update their records knowing that it may be released to private companies.
Lastly, these practices raise significant consumer protection issues. Recent decisions of the Supreme Court and the Victorian Civil and Administrative Tribunal have found that the liquidated damages the car park operators are seeking are unenforceable. This is because the damages being sought do not reflect the actual losses suffered by the car park operator, and should more properly be categorised as a penalty. These decisions have also found that consumers either do not understand the nature of the letter of the demand, believing it to be an infringement notice that must be paid, or are otherwise being misled by car park operators.
VicRoads submitted that the application made by Wilson Parking in this case was a ‘back door’ attempt to avoid the effect of s 90R. It argued that the proposed action in trespass was, in truth, a claim for the recovery of private car park fees. Although this was not an argument that found favour with the magistrate, VicRoads submitted that it was an alternative basis for refusing the application.
Wilson Parking submitted that it was not seeking to recover private car park fees, but was seeking remedies for the tort of trespass. Those remedies were an injunction and damages.
When Wilson Parking made the application to the Magistrates’ Court, it had intended to seek an injunction to restrain further trespasses. However, counsel for Wilson Parking informed me that there is now a roller door at the entrance to the car park, which can no longer be used for casual parking. Wilson Parking therefore no longer intended to seek an injunction.
The only remedy that would be sought, if the matter were to be remitted, was damages. It became clear during the submissions made for Wilson Parking that it intended to seek damages for trespass for all of the occasions on which the vehicles were parked without payment, not only for trespasses after 4 October 2018.
In those circumstances, it appears to me that the proposed action in trespass against the drivers of the vehicles is, in substance, an action for the recovery of private car park fees. The measure of damages in trespass is full restitution for any loss suffered by the plaintiff.[16] Here, there is no suggestion that either vehicle damaged the car park, or that Wilson Parking incurred the cost of removing the vehicles from the car park. On the material before me, Wilson Parking suffered no loss other than the opportunity to collect fees from paying customers for the bays that were occupied by the freeloading BMWs. Just as the measure of damages for wrongful occupancy of land is the reasonable rental value of the land during the period of occupancy,[17] so the measure of damages for wrongful occupancy of a car park bay is the reasonable parking fees payable for that bay during the relevant period.
[16]R.P. Balkin and J.L.R. Davis, Law of Torts (LexisNexis Butterworths, 5th ed, 2013) [5.15].
[17]Ibid, [5.17].
An action by Wilson Parking for damages for trespass against the driver of either vehicle would be, in my view, an action to recover private car park fees, as defined in s 90R(3). Section 90R precludes an order for preliminary discovery being made for that purpose. There would therefore have been no point in remitting the matter to the Magistrates’ Court for further hearing and determination, now that Wilson Parking no longer seeks an injunction to restrain ongoing acts of trespass. For that reason also I would have declined to remit the application for further hearing and determination, if Wilson Parking had established an error by the magistrate.
Form of proceeding
Finally, VicRoads submitted that the proper form of proceeding to challenge the magistrate’s orders was an appeal on a question of law, under s 109 of the Magistrates’ Court Act 1989 (Vic). The Court of Appeal has made it clear that a litigant who has a right of appeal under s 109 may not raise for determination under Order 56 a matter which is proper for determination on an appeal.[18] VicRoads submitted that the availability of a s 109 appeal is a sufficient basis to exercise my discretion to refuse relief under Order 56.
[18]Kuek v Victoria Legal Aid (2001) 3 VR 289, [16].
Wilson Parking’s position was that an appeal under s 109 of the Magistrates’ Court Act may only be brought against a ‘final order’, and that an order refusing preliminary discovery is an interlocutory order.[19] On that basis, it submitted that it did not have a right of appeal under s 109 and that a judicial review proceeding under Order 56 was the correct form of proceeding.
[19]Herald & Weekly Times Ltd v Guide Dog Owners and Friends Association [1990] VR 451.
Care should be taken in applying the extensive jurisprudence about the distinction between a final order and an interlocutory one to the question of whether an appeal lies under s 109 of the Magistrates’ Court Act. That section provides that a party to a civil proceeding in the Magistrates’ Court may appeal to the Supreme Court, on a question of law, ‘from a final order of the Court in that proceeding’. An appeal lies under s 109 from an order that finally concludes the proceeding before the Magistrates’ Court.[20] That is so even if the order might otherwise be regarded as an interlocutory order, because it does not finally determine the rights of the parties.
[20]See Muscat v Magistrates’ Court of Victoria [2018] VSC 650, [15], citing Neuss v Magistrates’ Court of Victoria [2013] VSC 321, [57], in relation to s 272 of the Criminal Procedure Act 2009 (Vic).
Here, the magistrate’s order refusing the application for preliminary discovery brought the proceeding to an end. It was plainly a final order in the proceeding, whether or not it precluded Wilson Parking from making a further application for preliminary discovery.
It follows that Wilson Parking could have appealed the magistrate’s order under s 109 of the Magistrates’ Court Act, which was the proper form of proceeding. That said, its choice to proceed under Order 56 was understandable, given the much-debated distinction between interlocutory and final orders. I would not have refused relief on this basis.
Disposition
There will be an order that the proceeding is dismissed.
My preliminary view is that Wilson Parking should be ordered to pay VicRoads’ costs of the proceeding, including any reserved costs, on a standard basis. I will make orders for the filing of written submissions if either party seeks a different order as to costs.
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