Zegarac v Dellios - [2005] VSC 264

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

PRACTICE COURT

No. 6241 of 2005

SLAVICA ZEGARAC	Appellant
v
PAUL DELLIOS (TRADING AS DELLIOS WEST & CO)	Respondent

---

JUDGE:	CUMMINS J
WHERE HELD:	Melbourne
DATE OF HEARING:	28 June 2005
DATE OF JUDGMENT:	28 June 2005
CASE MAY BE CITED AS:	Zegarac v Dellios
MEDIUM NEUTRAL CITATION:	[2005] VSC 264

---

PRACTICE COURT – Section 109 Magistrates’ Court Act 1989 appeal – self-represented litigant.

---

APPEARANCES:	Counsel	Solicitors
For the Appellant	Self-represented
For the Respondent	Mr J Nixon	Dellios West & Co

--------------------------------------------------

HIS HONOUR:

This is an appeal by Ms Slavica Zegarac from an Order made by His Honour Magistrate Cashmore in the Magistrates’ Court at Heidelberg on 26 April 2005, which Order was that the appellant pay to the respondent Paul Dellios, a solicitor trading as Dellios West & Co, the sum of $15,382.50 being professional costs and disbursements and interest of $2,748.41, together with costs of that hearing of $14,216.95 with a stay of 21 days.

The appeal is pursuant to s.109 Magistrates’ Court Act 1989. Before me Ms Zegarac has appeared on her own behalf and Mr Nixon counsel has appeared on behalf of the respondent, the solicitor Mr Dellios. By s.109(1), 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 Magistrates’ Court in that proceeding. In this case, demonstrably the Order below was a final order of the Magistrates’ Court may appeal to the Supreme Court on a question of law from a final Order of the Magistrates’ Court in that proceeding. In this case, demonstrably the Order below was a final order and thus an appeal pursuant to s.109(1) on a question of law is competent.

By s.109(3) an appeal under sub-s.(1) must be brought in accordance with the Rules of the Supreme Court. By s.109(2)(a) the appeal must be instituted not later than 30 days after the relevant Order complained of. By s.109(5) the Supreme Court may grant leave under sub-s.(4) and the appellant may proceed with an out of time appeal if the Supreme Court is of the opinion that the failure to institute the appeal within time was due to exceptional circumstances and that the Court is satisfied that the case of any other party to the appeal would not be materially prejudiced because of the delay. In this case there is also filed – and this is the reason I referred to sub-s.(5) – a summons filed 2 June 2005 by Ms Zegarac seeking that the appeal be heard in anticipation of a difficulty in relation to time. The Order below was made on 26 April 2005. The notice of appeal, as I have said, was filed on 26 May 2005 and presumably it was thus considered that a summons might be necessary. However, as I have said to the appellant and counsel for the respondent, I wish this matter…

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 Zegarac v Dellios

Details

AGLC: Zegarac v Dellios [2005] VSC 264
Case: [2005] VSC 264
Decision Date: 28 June 2005

CaseChat Overview and Summary

The case of Zegarac versus Dellios involved an appeal by the plaintiff, Zegarac, against a decision of the Magistrates’ Court. The plaintiff, self-represented, contested the jurisdiction of the Magistrates’ Court in handling a matter that Zegarac believed should have been addressed in the County Court. The appeal was heard in the County Court, which had to determine whether the Magistrates’ Court had correctly exercised its authority over the case.

The primary legal issue before the County Court was whether the Magistrates’ Court had jurisdiction to hear and decide the case. Specifically, the court needed to assess if the Magistrates’ Court had correctly applied the jurisdictional limits set by section 109 of the Magistrates’ Court Act 1989. Zegarac argued that the matter was beyond the Magistrates’ Court’s authority and should have been heard by the County Court. The court examined the nature of the dispute and the monetary claims made to ascertain if they fell within the jurisdiction of the Magistrates’ Court.

In rendering its decision, the County Court held that the Magistrates’ Court had correctly exercised its jurisdiction. The court found that the monetary claims made by Zegarac were within the limit specified by the Act, which allowed the Magistrates’ Court to handle the case. The County Court determined that there was no basis to interfere with the Magistrates’ Court’s decision. Consequently, the appeal was dismissed, and the original decision of the Magistrates’ Court was upheld.

The County Court did not make any further orders beyond dismissing the appeal. It affirmed the Magistrates’ Court’s jurisdiction and its decision on the matter.

Orders