SUPREME COURT OF VICTORIA
COURT OF APPEAL
No S APCI 3767 of 2009
| WORLDWIDE ENTERPRISES PTY LTD (ACN 083 154 741) | Applicant |
| v | |
| DOV SILBERMAN | First Respondent |
| and | |
| SAM CHIZIK | Second Respondent |
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JUDGES: | WEINBERG and BONGIORNO JJA | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 12 February 2010 | |
DATE OF JUDGMENT: | 23 February 2010 | |
MEDIUM NEUTRAL CITATION: | [2010] VSCA 17 | |
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PRACTICE & PROCEDURE – Appeal from decision of VCAT to judge in Trial Division – Application pursuant to r 1.17(1) of Supreme Court (General Civil Procedure) Rules 2005 by lay director for leave to appear on behalf of applicant company – Application refused – Proceedings stayed pending appointment of solicitor – Company impecunious – Security for costs ordered – Appeal – Whether stay pursuant to r 1.17(1) final or interlocutory in character – Relationship of r 1.17(1) with ss 236 and 237 of Corporations Act 2001 (Cth) – Whether primary judge exercised discretion erroneously – Claim of bias on part of primary judge – Application for leave to appeal against costs order out of time – Application for leave to appeal against setting aside of subpoena as ‘fishing expedition’ out of time – All applications for leave to appeal dismissed.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr M Goodman was given limited leave to appear on behalf of the Applicant | |
| For the First Respondent | Ms R Annesley | Wisewoulds Lawyers |
| For the Second Respondent | Ms R Annesley | Herbert Geer |
WEINBERG JA:
The applicant, Worldwide Enterprises Pty Ltd, seeks leave to appeal from a judgment of J. Forrest J, delivered on 1 May 2009, in which his Honour, pursuant to r 1.17(1) of the Supreme Court (General Civil Procedure) Rules 2005 (‘the Rules’), stayed the applicant’s appeal from a decision at the Victorian Civil and Administrative Tribunal (‘VCAT’) until such time as it was represented by a solicitor. The applicant also seeks leave to appeal from his Honour’s order made that day that it give security for costs in the amount of $10,000.
In addition, the applicant seeks leave to appeal from an order setting aside a subpoena made by his Honour on 5 February 2009. Finally, it seeks leave to appeal, as well, from a costs order arising out of an adjournment of the proceeding made by Harper J on 6 October 2008. In each of the latter two cases, the applicant is well out of time.
This matter has had a long and somewhat tortured history. The applicant was involved in a County Court proceeding which settled, after a five day hearing, in 2006. Subsequently, the applicant and its solicitor (the first respondent), as well as the applicant and its barrister (the second respondent), had a falling out, and proceedings ensued in VCAT. These proceedings concerned the conduct of the County Court hearing, and the issue of outstanding fees.
Following an application by the respondents, VCAT determined that it had no jurisdiction over that part of the applicant’s claim that related to pecuniary losses. Accordingly, that aspect of the…
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- Case
- [2010] VSCA 17
- Decision Date
CaseChat Overview and Summary
The legal issues before the court included the characterisation of the stay under rule 1.17(1) of the Supreme Court (General Civil Procedure) Rules 2005 as final or interlocutory, the interplay between this rule and sections 236 and 237 of the Corporations Act 2001 (Cth), the correctness of the primary judge's exercise of discretion, and the validity of the claim of bias. The applicant also sought leave to appeal certain orders out of time, which was a procedural matter that needed to be addressed.
The court found that the stay was interlocutory in nature, not final, and thus appealable. It determined that the primary judge did not erroneously exercise his discretion and dismissed the claim of bias. The court held that the application for leave to appeal certain orders out of time was not successful, as it found that the applications were indeed out of time. Consequently, all applications for leave to appeal were dismissed.
The final orders of the court were that the appeal against the primary decision was dismissed, and all subsequent applications for leave to appeal were also dismissed. The stay of the proceedings pending the appointment of a solicitor remained in effect, and the order for security for costs stood as imposed by the primary judge.
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