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Wong v Carter

Wong v Carter

Case [2000] VSCA 53 19 April 2000

Appeal

Civil Litigation & Procedure

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SUPREME COURT OF VICTORIA

COURT OF APPEAL Not Restricted

No. 6748 of 1997

CONSTANT TSAI SHI WONG

Appellant

C. CARTER, P. DUNCAN and B. QUIRK

Respondents

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JUDGES:	WINNEKE, P., TADGELL and CHERNOV, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	18 April 2000
DATE OF JUDGMENT:	19 April 2000
MEDIUM NEUTRAL CITATION:	[2000] VSCA 53

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Procedure – Appeal pursuant to s.109 of the Magistrates’ Court Act – Magistrate’s decision not involving questions of law but matters of practice and procedure – Obligations of Master under r.58.09(1).

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Ms. L. Lieder Q.C.	Maria Philips
For the Respondents	Mr. T. Casey Q.C. and Mr. M.A. Robins	Victorian Government Solicitor

WINNEKE, P.:

I will invite Chernov, J.A. to give the first judgment in this appeal.

CHERNOV, J.A.:

This is an appeal against the decision of Balmford, J. dismissing an appeal brought under s.109 of the Magistrates' Court Act 1989 from the final order of a Magistrate made on 30 June 1997 dismissing the appellant's claim for damages and other relief against the respondents. The dispute between the parties centred around the issue of whether the appellant was the owner of a motor vehicle registered CCK 046 during the period between 1987 and about mid-June 1994. Incredible though it may seem, the hearing of this issue took six sitting days in the Magistrates' Court and the appeal was heard on 29 and 30 July 1998.

The factual background to the dispute is this. Between 1987 and 14 June 1994 over 150 parking infringement notices were issued in respect of the vehicle addressed to John D. Young, none of which were paid, with the result that over the period penalties in respect of those infringements were registered under Schedule 7 of the Magistrates' Court Act. The penalties and costs totalled over $24,000. Warrants were issued to the Sheriff of the Supreme Court of Victoria in relation to the enforcement of all or most of the penalties. Each warrant was directed to John D. Young.

On 19 April 1995 the first respondent, an officer of the second respondent who was then the Sheriff, seized the vehicle in the execution of one of the warrants. The third respondent is the current holder of the office of Sheriff. On 2 May 1995 the Sheriff wrote to the appellant's then solicitors informing them (inter alia) that he seized the vehicle on the basis that John D. Young and the appellant were one and the same person.

Not long thereafter the vehicle was conditionally released into the custody of the appellant, but on 18 December 1995 the Victorian Government Solicitor wrote to the appellant's then solicitors informing them that, having carried out extensive investigations into the relationship between the appellant and John D. Young, the Sheriff had concluded that the appellant had at the relevant time used the alias John D. Young to evade enforcement proceedings. Consequently, it was said that on the expiration of 21 days from the date of…

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 Wong v Carter

Details

AGLC: Wong v Carter [2000] VSCA 53
Case: [2000] VSCA 53
Decision Date: 19 April 2000

CaseChat Overview and Summary

In the case of Wong v Carter, the parties involved are Wong, the appellant, and Carter, the respondent. The dispute arose from a decision made by a magistrate regarding a matter of practice and procedure under rule 58.09(1) of the Magistrates’ Court Act. The appellant sought to appeal the magistrate's decision, arguing that it involved questions of law rather than matters of practice and procedure. The appeal was heard in the Supreme Court of Victoria.

The primary legal issue before the court was whether the magistrate's decision, which was challenged by the appellant, constituted a question of law or a matter of practice and procedure. Specifically, the court needed to determine the obligations of a Master under rule 58.09(1) and whether these obligations were such that they could be subject to an appeal under section 109 of the Magistrates’ Court Act. The court also had to assess whether the magistrate's decision was in line with the procedural rules and whether there was any error in the application of those rules.

The court found that the obligations of a Master under rule 58.09(1) were indeed matters of practice and procedure rather than questions of law. The magistrate's decision did not involve any misinterpretation or misapplication of the law but rather dealt with the correct interpretation and application of procedural rules. Consequently, the court held that the appeal was not valid as the magistrate's decision did not involve questions of law. The appeal was dismissed, and the decision of the magistrate was upheld.

Orders