Eimany v Ruyton Girls' School [2022] VSC 420

ADMINISTRATIVE LAW - Supreme Court (General Civil Procedure) Rules 2015 (Vic), rr 58.08, 58.09 and 58.10(9) - Application for summary dismissal of appellant's application to Supreme Court for appeal of orders made by the Magistrates' Court - Whether the notice of appeal identifies sufficiently or at all a question of law - Whether the appellant has an arguable case - Procedural fairness - Abuse of process - Adequacy of reasons - Transport Accident Commission v Kamel [2011] VSCA 110.

1 This decision concerns an application by the Appellant, initiated by notice of appeal dated 31 August 2021 ('Notice of Appeal'), for leave to appeal two orders of the Magistrates' Court of Victoria ('Magistrates' Court'). The circumstances in which this came to be treated as an application for leave to appeal will be explained shortly. This decision also involves an application by the Respondent, Ruyton Girls' School, for summary dismissal of the Appellant's appeal pursuant to r 58.10(9) of the Supreme Court (General Civil Procedure) Rules 2015 (Vic) ('Rules'), made by way of summons dated 23 November 2021.

2 The applications were heard together on 6 May 2022. For the purposes of the applications, the Appellant relies on the affidavits of Dr Arash (Tom) Eimany sworn 4 October 2021 ('First Eimany Affidavit'), 30 November 2021 ('Second Eimany Affidavit'), 14 February 2022 ('Third Eimany Affidavit') and 25 March 2022 ('Fourth Eimany Affidavit'), as well as the exhibits to those affidavits.[1] The Appellant also relies on his written outline of submissions filed 25 April 2022.

3 The Respondent relies on the affidavit of Michael Sandor sworn 23 November 2021 ('Sandor Affidavit') and the exhibits thereto, in addition to its two written outline of submissions dated 25 February 2022 and 7 April 2022 respectively. The parties also supplemented their outlines of submissions with oral submissions at the hearing on 6 May 2022.

4 I have taken all of the parties' written materials and oral submissions into account in the course of preparing these reasons, whether the matters raised therein are specifically referred to in these reasons or not.

5 As the Appellant is a self-represented litigant, I have been mindful of adhering to the principles that apply in circumstances where parties are self-represented, as recently summarised by Derham AsJ in Daher v Bell.[2]

6 For the reasons that follow, I have concluded that the Appellant's application for leave should be refused and the appeal dismissed.

7 This appeal was brought pursuant to s 109 of the Magistrates' Court Act 1989 (Vic) ('Magistrates' Court Act'). Section 109(1) provides that a party to a civil proceeding in the Magistrates' Court may appeal, on a question of law, a final order of the Magistrates' Court in a proceeding to the Supreme Court of Victoria. An appeal brought in accordance with s 109(1) must be instituted no later than 30 days after the date on which the order complained of was made.[3] Any such appeal must also be brought in accordance with the rules of the Supreme Court.[4]

8 Sections 109(4) and 109(5) address the circumstances whereupon an appeal is brought outside the stipulated 30 day timeframe, stating:

(4) An appeal instituted after the end of the period referred to in subsection (2)(a) is deemed to be an application for leave to appeal under subsection (1).

(5) The Supreme Court may grant leave under subsection (4) and the appellant may proceed with the appeal if the Supreme Court -

(a) is of the opinion that the failure to institute the appeal within the period referred to in subsection (2)(a) was due to exceptional circumstances; and

(b) is satisfied that the case of any other party to the appeal would not be materially prejudiced because of the delay.

9 The Rules also provide that where an appeal is instituted more than 30 days after the day on which the order under appeal was made, the appeal is taken to be an application for leave to appeal.[5]

10 In Mako'ochieng v Kirk,[6] McDonald J synthesised the principles applicable to applications for leave to appeal:[7]

In order to be granted leave to appeal, the applicant must establish that his failure to file an appeal within the prescribed 30 day period was due to exceptional circumstances. However, even where exceptional circumstances are established the Court has an unfettered residual discretion as to whether leave to appeal should be granted.

The principles governing the exceptional circumstances threshold under s 109(5) of the Act are well-established:

(a) The granting of an extension of time is not automatic. Upon the expiry of the time for the lodgement of the appeal, a respondent has a vested right to retain the judgment unless the application is granted;

(b) The onus lies on the applicant to satisfy the test of exceptional circumstances;

(c) Although 'exceptional' is defined as meaning 'unusual, special, out of the ordinary course' in the Oxford English Dictionary, in the context of the Act, the circumstances must be such that they can be said to 'rarely occur' and 'perhaps be outside reasonable anticipation or expectation';

(d) The inquiry is confined to the circumstances relevant to the applicant's failure to appeal within time (ie 30 days) and whether they may be characterised as exceptional;

(e) As part of that inquiry, a court will examine the conduct of the applicant (and his or her agents) in the prosecution of the appeal and the explanation for failing to lodge the notice within time;

(f) The inquiry in determining whether exceptional circumstances exist as required by s 109(5) is not a consideration of all matters germane to the appeal;

(g) That which must be established is that the failure to institute the appeal within the statutory period was due to exceptional circumstances;

(h) The exceptional circumstances must relate solely to the explanation for the delay;

(i) By use of the expression 'exceptional circumstances', the legislature intended to place a considerable bar in the way of an applicant before leave will be granted. The bar is a 'significant hurdle', which requires a 'persuasive explanation', to be demonstrated by 'clear and cogent proofs'.

11 Section 110 of the Magistrates' Court Act allows a person against whom a final order is made in a civil proceeding to seek a re-hearing. Relevantly, that provision states:

(1) If a final order is made by the Court in a civil proceeding against a person who did not appear in the proceeding, that person may, subject to and in accordance with the Rules, apply to the Court for an order that the order be set aside and that the proceeding be re-heard.

(2) On an application under this section, the Court may set aside the order subject to any terms and conditions that it thinks just and re-hear the proceeding.

(5) If an applicant under this section fails to appear at the time fixed for the hearing of the application and the application is struck out, the applicant can re-apply only if the applicant first obtains the leave of the Court.

12 The question of whether or not an order made pursuant to a re-hearing application is a 'final order' within the meaning of ss 109 and 110 of the Magistrates' Court Act was considered by Batt J in Kinex Exploration Pty Ltd v Tasco Pty Ltd,[8] a case involving an appeal brought against an order of the Magistrates' Court where the applicant's application for a re-hearing under s 110 was dismissed. In Kinex, Batt J observed:[9]

The expression 'final order' is not defined in the Act, but it is clear both from the context and the authority of decisions of Fullagar J [in Bullmore and Bullmore v Zurich Australian Life Insurance Ltd], Gobbo J [in Kennedy v Victorian Rigging Pty Ltd] and Beach J [in Guss v Johnstone] ... that it is used as an antonym of the expression 'interlocutory order'.

13 Further, after referring to the decisions of Licul v Corney[10] and Carr v Finance Corp of Australia Ltd (No.1),[11] his Honour said:[12]

The rationale of those decisions is that the test applicable in Australia for determining whether a judgment is final or not is 'whether the judgment or order appealed from, as made, finally determines the rights of the parties'.

14 His Honour also relied on Hall v Nominal Defendant[13] as authority for the proposition that:[14]

[An] order refusing to set aside a default judgment does not as a matter of law finally dispose of the rights of the parties, for it is open to the disappointed defendant to apply again to have the judgment set aside ...

15 His Honour's reasoning has since been adopted in numerous decisions.[15] As explained by Derham AsJ in Gill v Gill:[16]

Thus, in s 110 the expression "a person who did not appear in the proceeding", as Justice Batt (as he then was) observed in Kinex Exploration Pty Ltd v Tasco Pty Ltd, is apt to apply to two kinds of final orders. First, orders made without any hearing on the merits in default of filing a Notice of Defence and, secondly, orders after a hearing on the merits where the party did not appear at the hearing. ...

In Kinex Batt J construed s 110 consistently with the approach adopted in decisions concerning applications in superior courts to set aside judgments as enabling a plurality of applications for the setting aside of orders. This involves the same approach by the Court as that adopted by the High Court in Carr v Finance Corporation of Australia Ltd (No.1), where Mason J (as he then was) considered that there was a generally accepted principle that the refusal of an application to set aside a default judgment is not a bar to the making of a fresh application. This had the consequence that a decision under s 110 to refuse to set aside an order was not a final order for the purposes of s 109 of the Magistrates' Court Act.

16 In terms of the Respondent's application for summary dismissal of the appeal, r 58.10(9) of the Rules sets out the bases on which the Court may summarily dismiss an appeal:

(9) The Court may dismiss the appeal if satisfied that -

(a) the notice of appeal does not identify sufficiently or at all a question of law on which the appeal may be brought;

(b) the appellant does not have an arguable case on appeal or to refuse leave would impose no substantial injustice; or

(c) the appeal is frivolous, vexatious or otherwise an abuse of the process of the Court.

17 As Lansdowne AsJ observed in Harris v Kennedy,[17] the Court should be mindful to adopt a cautious approach when considering an application brought under the Rules to summarily dismiss an appeal from the Magistrates' Court. The approach should be consistent with the Court of Appeal's approach in Lysaght Building Solutions Pty Ltd v Blanalko Pty Ltd[18] (which concerned an application for summary dismissal brought under s 63 of the Civil Procedure Act 2010 (Vic)). While her Honour made this observation in the context of an application made under the predecessor to r 58.10(9),[19] it applies with equal force to the current incarnation of the rule.

18 By its complaint and statement of claim dated 31 August 2020, the Respondent commenced a proceeding in the Magistrates' Court against the Appellant ('Magistrates' Court Proceeding'). The claim was brought in respect of outstanding school fees alleged to be owed by the Appellant, totalling a debt of $31,474.53 plus interest.[20]

19 The Appellant filed his notice of defence dated 24 September 2020, in which the Appellant, at paragraph 1, pleaded that he was 'in agreeance to pay half his children's school fees'. The Appellant also asserted, amongst other things, that the Respondent had failed to provide him with information concerning payments made to the Respondent by his former spouse.[21]

20 The proceeding was listed for a pre-hearing conference on 17 March 2021, with notification of the pre-hearing conference circulated to the parties by email on 9 March 2021. The parties were advised that in the event the parties did not settle the proceeding or agree to an adjournment, then the proceeding will proceed by telephone.[22]

21 On 23 March 2021, the Magistrates' Court's Registry circulated to the parties a 'notice of hearing' which, amongst other things, notified the parties that the Respondent's claim was listed for hearing on 9 June 2021 at 9:30am.[23] An email containing the teleconferencing details through which the parties could access the hearing was provided to the parties on 13 May 2021.[24]

The hearing before Magistrate Hoare on 9 June 2021

22 The hearing occurred on 9 June 2021, but the Appellant failed to appear. In response to the Appellant's non-appearance, a court officer sent an email at 10:26am to the Appellant, copying in the Respondent's then-counsel, advising that the proceeding had been assigned to a courtroom at the Magistrates' Court. This email also provided the Appellant with teleconferencing details and informed him that the hearing was to re-commence at 10:30am.[25]

23 The Appellant again failed to appear at the rescheduled hearing and, consequently, the hearing proceeded in his absence. After hearing evidence from an employee of the Respondent regarding the debt owed, Magistrate Hoare, in reasons delivered ex tempore, found that:[26]

(a) the Appellant was aware of the hearing but nevertheless chose not to appear;

(b) the Appellant was aware of, and accepted liability for, the whole of the debt claimed by the Respondent (as conceded by paragraph 1 of his Notice of Defence);

(c) the Appellant raised numerous matters in his notice of defence which were not germane to the claim made by the Respondent in the proceeding;

(d) on the evidence before her, including the documents tendered into evidence and the evidence given by the Respondent's witness, the Magistrate was satisfied that the totality of the debt claimed by the Respondent was owed by the Appellant. Judgment was given for the Respondent; and

(e) costs were to be awarded against the Appellant.

24 Following the ruling, the Respondent's then-counsel proceeded to take the Magistrate through the costs accrued by the Respondent in the course of the Magistrates' Court Proceeding.

25 Magistrate Hoare then made orders in favour of the Respondent ('9 June Orders'). The 9 June Orders state:[27]

DEFENCE TO CLAIM

Claim order:

TOM EIMANY to pay RUYTON GIRLS SCHOOL

Claim $ 31474.53 and Interest $ 2497.65 Costs $ 9878.30 Stay 1 MONTH

The application for a re-hearing before Magistrate Foster on 3 August 2021

26 On 2 July 2021, the Appellant filed a re-hearing application in the Magistrates' Court, together with an affidavit in support sworn on the same date.

27 In his application, the Appellant set out the following reasons for his failure to attend the hearing before Magistrate Hoare:[28]

Webex meeting invite link was dead. Had network problems and was 20-30 minutes late in logging in. ? storms ?overwhelming of networks [sic] due to 4th lockdown.

Please provide another hearing in 8 weeks or more on a Thursday to allow me to apply for leave to counterclaim against the plaintiff for breach of contract ...

28 The Appellant's re-hearing application was heard by Magistrate Foster on 3 August 2021.

29 At the commencement of the hearing, the Respondent's then-counsel explained that the debt related to school fees and proceeded to take the Magistrate through the background to the proceeding. The Magistrate then asked the parties about the circumstances surrounding the Appellant's failure to attend the hearing before Magistrate Foster on 9 June 2021, before moving on to assess the merits of the Appellant's defence to the claim brought against him.[29]

30 When the Magistrate suggested to the Appellant that the material demonstrated that he was in agreement to pay half of his children's school fees, the Appellant asserted that he had been saddled with the majority of the fees.[30] The Appellant also made a number of other scandalous allegations, many of which have been a recurring theme in this proceeding and to which I will return when analysing the Appellant's grounds of appeal, to the extent it is necessary to do so.

31 The Respondent's then-counsel contended that any debt owed and payment made by the Appellant's former spouse was irrelevant to the Appellant's debt. The Respondent's then-counsel proceeded to take the Magistrate through a spreadsheet tendered by the Respondent which set out, in what appears to be an itemised format, the debt owed by the Appellant. When asked about the amounts contained in the spreadsheet, the Appellant complained that the Respondent has hitherto refused to provide certain receipts, contended that there had been a breach of procedure, and asserted that it was incumbent on the Respondent to provide him with evidence of his former spouse's payments as a prerequisite to the Appellant satisfying the debt owed.[31] Many of these arguments made by the Appellant are reiterated in his material filed in this proceeding, which I will return to later in these reasons.

32 In reasons delivered ex tempore, the Magistrate concluded that he had 'real doubts' regarding the Appellant's failure to connect to the hearing before Magistrate Hoare on 9 June 2021. Crucially, the Magistrate also found that the Appellant was unable to establish a defence on the merits. In arriving at this conclusion, the Magistrate also dismissed the arguments raised by the Appellant regarding his former spouse's share of the school fees, noting that the records showed that the Appellant's former spouse had paid the relevant instalments.[32]

33 As such, Magistrate Foster made orders refusing to set aside the 9 June Orders ('3 August Orders').[33]

34 This proceeding has taken on a complex and protracted life of its own. The Appellant's Notice of Appeal is far-reaching, containing three primary purported questions of law on which the Appellant seeks to challenge the decisions made by Magistrates Hoare and Foster in the Magistrates' Court Proceeding. Each of those purported questions of law has a corresponding ground of appeal.

35 Since the filing of that document, the Appellant has made various attempts to articulate his grounds of appeal in this proceeding, which attempts can be summarised as follows:

(a) On 30 November 2021, the Appellant served on the Respondent a further document headed 'Proposed Amended Notice' ('First Proposed Amended Notice').[34]

(b) On 14 February 2022, the Appellant served on the Respondent a document headed 'Summons' which sought, amongst other things, leave to amend the Notice of Appeal to 'simplify appeal points', as well as a document headed 'Notice of Appeal (Amended)' ('Second Proposed Amended Notice').[35] The Second Proposed Amended Notice restates many of the asserted questions of law and grounds of appeal contained in the Notice of Appeal.

(c) The Appellant filed a summons dated 23 February 2022 ('23 February Summons'). This summons contains 29 paragraphs and is exceedingly broad in scope.

(d) Exhibited to the Fourth Eimany Affidavit is a document titled 'Application for Leave to Appeal (Amended)' dated 25 March 2022 ('Third Proposed Amended Notice'), which is said to 'to reflect content of information obtained from Magistrate [sic] Court file'.[36] This document repeats many of the ostensible questions on law on which the appeal is brought, and incorporates a fourth category of question of law. It also articulates an application for leave to appeal the Magistrates' Court orders.

36 The Respondent's application for summary dismissal of this proceeding was first listed before me on 25 February 2022. Pursuant to an application by the Appellant at the hearing, I granted the parties leave to inspect and copy the contents of the court file of the Magistrates' Court Proceeding, which had previously been produced to the Prothonotary. At the hearing I also made directions for the filing of materials, and otherwise adjourned to 6 May 2022 the Respondent's application for summary dismissal, which was to be heard together with the Appellant's application for leave to bring this appeal.

37 Although the hearing was listed to proceed on the morning of 6 May 2022, it was postponed to the afternoon due to the business of the Court that morning. Prior to the commencement of the hearing, the Appellant sent two emails to my Chambers, received at 12:00pm and 1:51pm respectively. Both emails attached differing sets of proposed orders which the Appellant sought at the hearing. The second email also attached an unsolicited document, titled 'family law enquiry', the provision of which was not explained by the Appellant. On a cursory review of that document, it appears to be utterly irrelevant to the issues raised by the present proceeding and I have not had any regard to it in the course of preparing these reasons.

38 Both sets of orders proposed by the Appellant sought an order that 'Leave [be] granted to the Appellant to obtain an appropriate case of Judicial Review under O.56 of the Rules' pursuant to the following paragraph in Kinex:[37]

In the High Court and in the Full Court of this court the rigour of the rule [that an order refusing to set aside a default judgment is not a final order] may be mitigated by the favourable exercise of the court's power to grant special leave to appeal or leave to appeal, as the case may be. That mitigating power does not exist in respect of appeals from interlocutory orders of the Magistrates' Court of Victoria, but the rigour of the rule can be circumvented by the obtaining in an appropriate case of judicial review under O.56 of the Rules.

39 Rather unconventionally, the proposed orders sought leave to bring an application for judicial review in this Court which had not been made. After this was pointed out by the Respondent's counsel at the hearing, the Appellant advised that he wished to convert the present appeal into one for judicial review under Order 56 of the Rules.[38] In effect, he was seeking to transform the proceeding from an appeal under s 109 of the Magistrates' Court Act to a judicial review application under Order 56. In support of this oral application, the Appellant relied on rr 2.02 and 2.04. These rules confer on the Court the power to dispense with certain procedural requirements prescribed by the Rules and, according to the Appellant, cast 'a very wide net'.[39] The Appellant further contended that r 56.02 contains a time limit of 60 days for the commencement of any proceeding under Order 56, which, according to the Appellant, would obviate the need for him to first obtain an extension of time, since this proceeding had been commenced within 60 days of the 3 August Orders.[40]

40 Having regard to the parties' oral submissions on the desirability of transforming the present appeal to one commenced under Order 56, I stood the matter down for a short period of time. Upon resumption of the hearing, I informed the parties that it would be highly unusual to convert this appeal in the manner proposed by the Appellant and that, as such, I was unwilling to amend the present appeal from an Order 58 proceeding to one under Order 56. In arriving at this view I had regard to a number of factors, including, but not limited to, the fact that Order 56 proceedings are different in both form and substance from those commenced under s 109 of the Magistrates' Court Act.[41]

41 Upon informing the parties of my decision, I asked the Appellant if he wished to continue with his application for leave to bring this appeal and, as a corollary, the Respondent's application for summary dismissal of this proceeding. At the request of the Appellant, I again stood the matter down for a short period in order grant him additional time to weigh up whether or not he wished to press his appeal. Following the resumption of the hearing the Appellant stated that he wanted to proceed with his application under Order 58. However, the Appellant stated that his application for leave would be narrowed down to two points. While I will distinguish and address in greater detail below the two grounds of argument relied on by the Appellant, given he is a self-represented litigant and because it was not entirely clear whether he wished to completely abandon the remaining grounds raised by his Notices of Appeal, I will - as a matter of fairness to the Appellant - proceed to address all of the matters raised in the Notice of Appeal.

42 As the Appellant has conflated the purpose of affidavits and submissions, the submissions in this section are extracted from both his affidavit material and written submissions.

43 In light of the Appellant's indication that he wished to narrow his bases for leave to appeal to two grounds, I will summarise the arguments relied on by the Appellant at the hearing in the first instance. I will then deal with the matters raised in his written material to the extent it does not overlap with the submissions made at the hearing, contains arguments that are intelligible and not scurrilous, and bears some connection to the issues in this proceeding. While most of the Appellant's submissions lack coherence and are difficult to decipher, out of fairness to the Appellant I have attempted to summarise his submissions as clearly as possible.

44 The first argument relied on by the Appellant at the hearing is based on Magistrate Foster's alleged statement, made at the hearing on 3 August 2021, that there was 'false logic' underpinning the Respondent's contention that the Appellant is liable for the school fees. This argument is also echoed in the Appellant's written submissions. The Magistrate's alleged finding, the Appellant submits, was made despite his Honour not having received the Appellant's affidavit and before the Appellant had made submissions. The Appellant submits that this finding should have been open to Magistrate Hoare also. The Appellant also submits that this argument provides an adequate basis for the Appellant to be granted an extension of time to pursue his appeal.

45 The second argument made by the Appellant before me, as best I can gather, is that s 24 of the Federal Court of Australia Act 1976 (Cth) ('FCA Act') enables the Appellant to lodge an appeal outside the 30‑day time limit prescribed by s 109(2)(a) of the Magistrates' Court Act, such that leave is not required. More specifically, the Appellant submits that because this proceeding involves an appeal from a judgment relating to contempt of court (which, I immediately note, is not the case), he does not require leave to bring this appeal by virtue of s 24(1C)(b) of the FCA Act.

46 The Appellant also submits that the FCA Act trumps the position in Kinex, and the common law more broadly, that a re-hearing application is interlocutory in nature. The Appellant submits that this is so due to the operation of s 109 of the Australian Constitution. The Appellant submits further that even if s 24 of the FCA Act does not apply to this appeal, it provides 'overwhelming persuasive authority' for the proposition that leave is not require in the context of this appeal.

47 I will now move on to the submissions made by the Appellant in his written materials, which, as I noted above, he has made in both his written outline of submissions and affidavit material. I will summarise to the extent necessary and appropriate, in accordance with my remarks at paragraph 42 above.

48 Regarding his application for leave to bring the appeal, the Appellant submits that the effect of r 46.08(3) of the Magistrates' Court General Civil Procedure Rules 2020 ('Magistrates' Court Rules') is that leave is only required in respect of further applications for re-hearing. The Appellant further submits that given only interlocutory decisions require leave to appeal, the hearing before Magistrate Foster on 3 August 2021 was not interlocutory in nature. This position is also said to be supported by operation of s 110(5) of the Magistrates' Court Act. Read together, the Appellant submits that it is clearly the intention of the legislature that a re-hearing be appealable under Order 58 of the Rules. To the extent that leave is required, the Appellant submits that the principles in Mako'ochieng were only brought to his attention for the first time in the Respondent's second written outline of submissions dated 7 April 2022.

49 The Appellant submits that insofar as the Respondent's application for dismissal seeks to dismiss the appeal pursuant to rr 58.08 and 58.09 of the Rules, the Respondent has failed to specify the precise sub-rule with which he has not complied. The Appellant submits that this has precluded him from responding adequately, and otherwise constitutes a denial of procedural fairness. An analogous submission is made in respect of the Respondent's claim that his appeal is not competent. The Appellant complains that, taken as a whole, the Respondent has attempted to deny him procedural fairness and to take the Appellant by surprise.

50 The Appellant submits that the Respondent's dismissal application and the concomitant grounds relied on in support of that application are without merit and must fail. The Appellant further submits that, contrary to the submissions made by the Respondent, his appeal points are concise and unambiguous.

51 The Appellant submits that the reasons given by Magistrate Foster in respect of his Honour's findings at the hearing on 3 August 2021 were inadequate. The Appellant also says that Magistrate Foster failed to give reasons as to why he retracted his supposed opinion that the Respondent's submission contained 'false logic' and why the Respondent's evidence was accepted in favour of that filed by the Appellant.

52 Insofar as the Appellant seeks to appeal the 9 June Orders, the Respondent submits that he is out of time by reason that the appeal was commenced more than 30 days after the day on which those orders were made. For this reason, the Respondent submits, the appeal must be taken as an application for leave to appeal pursuant to s 109(4) of the Magistrates' Court Act and r 58.11 of the Rules.

53 In terms of the applicable principles in respect of applications for leave to appeal, the Respondent relies on those summarised by McDonald J in Mako'ochieng. The Respondent submits that, despite having been directed to the relevant principles in Mako'ochieng at the hearing on 25 February 2022 and in its written outline of submissions dated 25 February 2022, the material filed by the Appellant fail to address the criteria identified at paragraph 10 above.

54 The Respondent submits that the technical issues complained of by the Appellant on the day of the hearing before Magistrate Hoare on 9 June 2021 do not bear on the Appellant's application for leave in this proceeding. The Respondent submits that the Appellant has not made out any exceptional circumstances and, consequently, his application for leave must fail.

55 The Respondent also submits that to the extent the Appellant seeks to appeal the 3 August Orders, the appeal is incompetent by operation of s 109(1) of the Magistrates' Court Act. The Respondent contends that this is so because s 109(1) only permits appeals 'on a question of law, from a final order of the Court in that proceeding'. In this regard, the Respondent submits that the 3 August Orders, being orders obtained on application for a re-hearing pursuant to s 110, are interlocutory in nature. Batt J's decision in Kinex is cited as support for this proposition.

56 The Respondent submits that the Appellant's Notice of Appeal fails to comply with rr 58.08 and 58.09 because the notice fails to state the questions of law upon which the appeal is brought.

57 This is said to be so for a number of reasons. It is said that the reference to 'the learned judge' used in all three questions contained in the Notice of Appeal is problematic, because it is unclear whether the Appellant seeks to challenge the 9 June Orders or the 3 August Orders.

58 The Respondent submits that, to the extent that questions 1 and 2 of the Notice of Appeal apply to the 9 June Orders, the Appellant has failed to identify questions of law with any level of precision. The Respondent also submits that the Appellant has failed to identify the evidence on which the Appellant claims that relevant considerations were excluded by Magistrate Hoare in the Magistrates' Court Proceeding. The Respondent elaborated on this submission at the hearing by observing that Magistrate Hoare, in granting judgment in its favour at the hearing on 9 June 2021, made orders on the basis of the material before her, which, it is said, is what magistrates routinely do.

59 As to the application for a re-hearing before Magistrate Foster on 3 August 2021, the Respondent submits that to succeed on his application the Appellant was required to provide a reason for his failure to appear on 9 June 2021 and demonstrate a defence on the merits. The Respondent submits that that the test was correctly applied by the Magistrate, and that Magistrate Foster provided the Respondent every opportunity to present his case and gave very clear reasons as to why he formed the view that there was no arguable case, which was a finding that was open to the Magistrate.

60 The Respondent contends that the vague references to emotional harm, breach of duty, and misleading conduct in question 1 of the Notice of Appeal are not developed in a way that can be said to have any bearing on the case brought against the Appellant in the Magistrates' Court Proceeding. The Respondent further submits that the procedural fairness grounds raised in question 1(e) of the Notice of Appeal are lacking in substance and fail to put forward an arguable case for appeal.

61 The Respondent submits that the terms 'contract' and 'consent orders' in question 2(a) of the Notice of Appeal have not been defined by the Appellant, nor are they readily identifiable, and the assertion of a forged signature being fixed upon the contract is one that is made without any, or any obvious or discernible, basis in fact. The Respondent further submits that questions 2(b) and (c) raise a number of scandalous allegations of collusion, abuse, and criminal conduct for which no evidentiary basis is proffered.

62 The Respondent submits that, should the Court be able to discern a question of law from question 1, these question have no reasonable prospect of succeeding on appeal and, accordingly, ought to be dismissed. The Respondent submits that this is because questions 1(a)-(d) of the First Notice of Appeal fail to address the consequences that flow from acceptance of each and every allegation raised by the Appellant that was said to have been ignored by the Magistrates' Court, being the allegations pertaining to emotional harm, breach of duty and misleading conduct. Further, the Respondent says that the Appellant has failed to establish any nexus between those allegations and the correctness of the findings in the Magistrates' Court Proceeding.

63 Concerning ground 1(e) of the First Notice of Appeal, the Respondent says that this ground must fail by reason that the Appellant failed to take any step to notify the Magistrates' Court's Registry regarding any issue impacting his participation in the hearing, produce any evidence at the re-hearing application on 3 August 2021 in respect of the asserted technical issues, or satisfy the Magistrates' Court on 3 August 2021 that he had an arguable defence on the merits.

64 While the Respondent concedes that question 3 of the First Notice of Appeal identifies a question of law, it submits that the transcript of the hearing before Magistrate Foster on 3 August 2021 makes clear that there is no arguable case on appeal arises from these grounds.

65 The Respondent further submits that to refuse the Appellant leave to appeal would impose no substantial injustice, as dismissing the appeal will not have any bearing on whether or not the unpaid school fees are payable by the Appellant (who has already admitted that he owed the fees).

66 The Respondent submits that, further or alternatively to the grounds under r 58.10(9)(a) and (b) of the Rules, the appeal is frivolous, vexatious, and an abuse of the Court's processes and ought to be dismissed under r 58.10(9)(c). This is because, having regard to the claim brought by the Respondent in the Magistrates' Court Proceeding, the Appellant has consistently failed to raise any allegation, fact, or legal principle that has any prospect of changing the admitted liability to the Respondent.

67 The Respondent also says that the Appellant is concerned only with efforts to compel this Court to facilitate a public vilification of the Respondent and its legal representatives, and harass his former spouse. The Respondent also submits that the Appellant makes scandalous assertions regarding the Respondent's principal's conduct absent any evidence and a proper basis, and without any connection to the just adjudication of the matters relevant to the Magistrates' Court Proceeding. During oral submissions, counsel for the Respondent stated that the document titled 'family law enquiry' provided to the Court prior to the hearing only serves to underscore the point that the Appellant's appeal has nothing to do with the Magistrates' Court Proceeding. The Respondent submits that this proceeding is not a vehicle or a forum for aggrieved persons in Family Court proceedings to ventilate matters relevant to those proceedings.

Appellant's application for leave to bring the appeal

Appeal against the decision of Magistrate Hoare on 9 June 2021

68 As I mentioned earlier, the Appellant's appeal against the 9 June Orders and 3 August Orders was brought on 31 August 2021. This means that if the Appellant wishes to appeal the decision of Magistrate Hoare made on 9 June 2021, his appeal is deemed to be an application for leave to appeal by virtue of the fact it was filed outside the 30 day time limit.[42] In these circumstances, the Appellant may be granted leave to proceed with his appeal in this Court if he is able to demonstrate that his failure to bring the appeal against the 9 June Orders was due to exceptional circumstances.

69 This being so, the Appellant has failed to demonstrate any exceptional circumstances which may explain his delay in filing the Notice of Appeal, nor has he addressed any of the criteria outlined in Mako'ochieng. Rather than address this criteria, the Appellant devoted substantial time and energy to arguing the toss with respect to whether or not leave is required to challenge the 9 June Orders. The Appellant's written material contains numerous scandalous assertions which allege, absent any evidence or discernible basis in fact, that the Respondent has deliberately sought to deny him an opportunity to adequately respond to the grounds raised in support of the dismissal application, deprive the Appellant of procedural fairness, and take him by surprise. On the contrary, in an effort to afford procedural fairness to the Appellant and ensure that he address the relevant criteria, at the hearing on 25 February 2022 the Appellant was specifically directed to the principles set out in Mako'ochieng. The Appellant was also put on notice of this criteria as early as 25 February 2022, upon receipt of Respondent's written outline of submissions. Suffice to say, the Appellant did not avail himself of the opportunity to explain the delay.

70 As stated earlier, at the hearing the Appellant indicated that he sought to rely on two grounds in support of his application for leave to appeal the 9 June Orders. I consider that the first of these grounds, being that Magistrate Foster's purported statement that the liability of the Appellant for the school fees pursued by the Respondent in the Magistrates' Court Proceeding is underpinned by 'false logic', is hopelessly misguided. I do not necessarily accept that the statement made by the Magistrate can be characterised in the manner asserted by the Appellant. In any case, the statement has absolutely no bearing on the circumstances concerning the Appellant's failure to lodge an appeal of the 9 June Orders within the specified timeframe.

71 As I understand it, the statement relied on by the Appellant occurred in the context of an exchange between the Respondent's former counsel and the Magistrate at the hearing on 3 August 2021. The relevant excerpt of the transcript is as follows:[43]

MR BENKEL: There's no evidence of that. He says he was then late logging in so he was actually able to get on. What was most surprising is Mr Eimany has been corresponding with my instructors for well over 7 to 8 months of this proceeding and on the day there is no contact with my instructors. There was no email or phone call to the office. No contact to the court. My instructor became aware of this issue 12 days later and my submission your honour would be that this is really suggestive of someone who knows they are liable, just wants to delay payment and frustrate the plaintiff. There is no evidence of Mr Eimany taking any action whatsoever on the day to try and notify the court or the other side being my instructor. The second part your honour is that we submit is no defence on merit, given that there is admission he is liable for 50% of the fees. There is no contest or dispute - - -

HIS HONOUR: - - - That's a fake argument. Thats [sic] a fake argument. There is no [inaudible] or merit in causal principals [sic] across [inaudible].

MR BENKEL: Correct your Honour - - -

HIS HONOUR: - - - Yes thank you, Mr Eimany can you hear and see me there?

72 The excerpt of the transcript suggests that the Appellant has fundamentally misapprehended the comments made by the Magistrate. I do not consider that the 'fake argument' comment (which the Appellant has erroneously quoted as 'fake logic') was directed to the Appellant's liability. The highest this comment can be put in the Appellant's favour is that the Magistrate did not accept the Respondent's then‑counsel's argument that the Appellant's failure to attend the hearing on 9 June 2021 was behaviour that can be seen to be consistent with his liability for the debt. This, of course, is an entirely different question than whether the Appellant could be said to have a defence on the merits such that a re-hearing would be warranted. Self‑evidently, if the Magistrate took the view that the Appellant had a defence on the merits, then he would have made a finding to this effect. However, this is not how things panned out. For reasons that are patently clear, the Appellant's first ground fails to explain why his appeal was filed outside the relevant timeframe, let alone point to any exceptional circumstances regarding the delay.

73 The second ground relied on by the Appellant at the hearing before me was that the effect of the FCA Act means that the time limit prescribed by the Magistrates' Court Act for appeals under s 109 does not apply. I accept the Respondent's submissions that the Appellant's argument is misguided. The FCA Act clearly applies to proceedings commenced in the Federal Court of Australia ('FCA'), or appeals to that court, and has no application to this proceeding whatsoever. Section 24 of the FCA Act clearly governs the FCA's appellate jurisdiction, which is made plain by any ordinary reading of s 24(1). That provision also confers on the FCA the jurisdiction to hear and determine, inter alia, 'appeals from judgments of the Court constituted by a single Judge exercising the original jurisdiction of the Court'.[44] Relevantly, the FCA's jurisdiction as delineated by s 24 does not extend to appeals from the Magistrates' Court. Further, s 24(1A) clarifies that, absent leave, s 24 applies only to appeals from judgments referred to in s 24(1) which, again, does not encompass appeals from the Magistrates' Court.

74 The Appellant's argument regarding the application of s 24(1C)(b) of the FCA is similarly bereft of merit. That section provides that leave to appeal under s 24(1A) is not required for an appeal of a judgment referred to in s 24(1), that is, an interlocutory judgment in proceedings relating to contempt of court. The Appellant says that the Magistrates' Court Proceeding can be considered to involve contempt of court due to the existence of what he says are 'fraudulent documents', which, he claims, were submitted by the Respondent as evidence in the Magistrates' Court Proceeding. Simply put, the basis of this argument, which constitutes one of several recurring themes throughout the Appellant's material, appears to be that his signature was forged on the agreement entered into between the Respondent and the Appellant for the payment of the Appellant's daughters' school fees.[45] Putting aside the fact that the FCA Act has absolutely no application to this proceeding, it cannot be said that this proceeding in any way relates to contempt of court. The Appellant's complaints regarding the veracity of evidence filed in the Magistrates' Court Proceeding, to the extent those complaints have any foundation in fact or evidence (which, in my view, they do not), do not change this. Most fundamentally, these arguments do not address the criteria referred to in Mako'ochieng, and fail to advance the Appellant's application for leave. Therefore, this ground is rejected.

75 For completeness, I note that when I asked the Appellant in the hearing what he had to say in relation to the criteria relevant to his application for leave to appeal, the Appellant submitted that he did not receive the emails sent by the Registry of the Magistrates' Court. This, it was argued, is indicative of network issues suffered by the Appellant on the date of the hearing on 9 June 2021. Although the Appellant did not elaborate on this statement any further, I take this submission to refer to the email containing the teleconferencing details sent on 13 May 2021, and the correspondence sent by the Magistrates' Court's Registry to the Appellant on 9 June 2021. While it is unclear whether the Appellant received the notice of hearing circulated by the Magistrates' Court Registry on 23 March 2021, which also contained the teleconferencing details, this is of no moment. This is because the relevant inquiry for the purposes of the Appellant's application for leave to appeal is directed to the Appellant's delay in filing the Notice of Appeal in this Court, not the circumstances that are said to have prevented him from accessing the hearing on 9 June 2021.

76 The Appellant then proceeded to submit that he has uncovered new evidence after 3 August 2021 which is said to support the conclusion that network issues affected his ability to participate in the hearing on 9 June 2021. The Appellant failed to elaborate on this further. In any case, any such material, if it can be said to exist, will have no bearing on the present application for leave to appeal the 9 June Orders for the reasons outlined in the preceding paragraph. Therefore, the Appellant has failed to address the circumstances which led to him filing the Notice of Appeal out of time.

77 Similarly, the Appellant's written material fails to address any of the principles relevant to an application for leave to appeal. If the references in the Appellant's outline of submissions to the 'unprecedented storms' that were said to be under way and to have prevented the Appellant from attending the hearing on 9 June 2021 are intended to demonstrate exceptional circumstances, this submission is misguided for the same reasons that plagued the submissions made by the Appellant before me.

78 As the Appellant's written material is otherwise silent on the circumstances that led to his bringing this appeal out of time, it follows that the Appellant has not made out any exceptional circumstance. The Appellant's application for leave to appeal the 9 June Orders must fail. Even if I was persuaded that the Appellant has established exceptional circumstances, I have an unfettered discretion to refuse leave to appeal.[46] One basis for refusing leave in those circumstances would be that the appeal has no merit, or there are no reasonably arguable grounds. It is convenient to address this aspect later in these reasons.

Appeal against the decision of Magistrate Foster on 3 August 2021

79 To the extent the Appellant wishes to appeal the 3 August Orders, which appeal was made within the 30 day timeframe, he is precluded from doing so.

80 I accept the Respondent's submission that the 3 August Orders, being orders made pursuant to an application for re-hearing, are interlocutory in nature and therefore not final orders within the meaning of s 109. The starting point is s 109 of the Magistrates' Court Act, which permits a party to bring an appeal to this Court only in respect of a 'final order' made in the Magistrates' Court. As I have previously mentioned, after the Appellant failed to attend the hearing on 9 June 2021 he made an application for re-hearing under s 110, and the 3 August Orders were made by Magistrate Foster pursuant to that application for a re-hearing. Batt J's decision in Kinex provides clear authority for the proposition that an order made pursuant to s 110 is not a final order within the meaning of s 109. Therefore, to the extent the Appellant seeks to challenge the 3 August Orders, his appeal is not competent.

81 Dealing briefly with the Appellant's submissions regarding the application of Kinex, the FCA Act cannot be said to have any bearing on the application of the principles in that case to this proceeding, let alone 'trump' them. Axiomatically, the Constitution is not relevant in this regard.

82 Further, the Appellant's argument that the effect of r 46.08(3) of the Magistrates' Court Rules is that the hearing before Magistrate Foster on 3 August 2021 was not interlocutory in nature is plainly wrong. Rule 46.08(3) provides that in circumstances where an application is struck out because the applicant failed to appear at the time fixed for hearing of the application, a further application for re-hearing is taken to be an application for leave to re-apply under s 110(5) of the Magistrates' Court Act. That rule is entirely separate from s 109(4) of the Magistrates Court Act.

83 As the 3 August Orders are not final orders, the Appellant's appeal insofar as it concerns them is incompetent.

84 The Respondent seeks the summary dismissal of the appeal pursuant to r 58.10(9) of the Rules. I have already found that the Appellant's application for leave should be dismissed due to there being no exceptional circumstances explaining the delay in bringing the appeal. However, I will also consider whether the appeal has any merit or the Appellant has an arguable case, and it is convenient to do so through the prism of the Respondent's application. While it is not strictly necessary for me to consider the Respondent's application, I will do so for this reason and for the sake of completeness.

85 The first matter I will address is that of whether the Appellant, in his Notice of Appeal, has identified a question of law on which the appeal may be brought and, if so, whether the question of law, and therefore the appeal, is reasonably arguable.

86 Under the heading 'Questions of Law' in the Notice of Appeal, the first question posed by the Appellant states:

1. Whether the learned judge ignored relevant consideration of:

1. School's conduct had caused emotional harm to the Appellant's children and damages to the Appellant.
2. School had breached their duty of care and contractual agreement by refusing to answer questions about the Appellant's daughter.
3. School tried to mislead the Appellant by quoting a non-existent legislation.
4. School had made misleading statements in their affidavit of documents.
5. Appellant had been denied procedural fairness in the original hearing by;
   1. School had refused to produce documents as per the subpoena issued to them without giving a valid reason.
   2. ANZ bank had misled the court that they had no records to produce after the receipt of a subpoena for the school's bank records.
   3. The Registrar had proceeded to arrange the final hearing in breach of Order 42A.09 of Magistrates' Court General Civil Procedure Rules 2020 without telling the Appellant why.
   4. The Appellant was sent the link to the hearing just 4 minutes prior to the hearing whilst waiting for the time and place of the hearing for the objection to the subpoena.
   5. The Appellant was unable to connect to the hearing due to network problems presumably due to unprecedented storms.

87 The Appellant has failed to clarify whether this purported question of law relates to the hearing on 9 June 2021 or the hearing on 3 August 2021. However, due to the matters raised by the Appellant in this question of law it is open to assume that question 1 is directed to the hearing on 9 June 2021. As such, this is the basis on which I will proceed.

88 The first question of law raised by the Appellant loosely refers to two recognised errors: firstly, whether the Magistrate ignored relevant considerations and, in turn, the correctness of the Magistrate's decision on 9 June 2021 (questions 1(a) to (d)); and secondly, whether the Appellant has been denied procedural fairness (question 1(e)). Given these two purported grounds of appeal raise very different matters and principles, I will deal with them independently of each other.

89 As to questions 1(a) to (d), I consider that these grounds fail to raise, with any degree of specificity, the relevant considerations which the Appellant claims were wrongly excluded. Most importantly, these grounds fail to identify a question of law.

90 I accept the Respondent's submission that the Appellant has failed to identify the evidence said to be wrongly excluded, and the bearing that this evidence would have had on the outcome of the hearing on 9 June 2021. The Appellant's references to 'emotional harm', 'breach of duty', and 'misleading conduct' do not have any discernible relationship with the case pleaded by the Respondent in the Magistrates' Court Proceeding. That proceeding involves a claim by the Respondent for school fees owed by the Appellant, liability for which he has conceded. Indeed, paragraph 1 of the Appellant's defence concedes that he agreed to pay half of his children's school fees.[47] The matters raised by the Appellant do not bear any relationship to the matters which the Magistrate was required to have regard in determining the Appellant's liability and the quantum of the debt owed by him once liability was established. Rather, the Appellant failed to attend the hearing, and judgment was given in his absence. For these reasons, questions 1(a) to (d) of the Notice of Appeal do not set out, with the requisite level of specificity or brevity, any question of law on which he seeks to bring the appeal.

91 Even if the Appellant has managed to articulate a question of law in questions 1(a) to (d), which I do not accept to be the case, the Appellant does not have an arguable case on appeal. This is so because the matters raised by the Appellant at questions 1(a) and (b) do not have any relationship with the issues that were determined in the Magistrates' Court Proceeding. More specifically, whether or not the Respondent breached any duty of care owed in respect of the Appellant's daughters has absolutely nothing to do with the Magistrates' Court Proceeding (which allegation has been made in a very general way and absent any basis in fact or law). Further, that the Appellant demanded proof of payment in respect of the other half of the school fees paid by his former spouse and did not receive it does nothing to advance his case in the Magistrates' Court Proceeding. Nor do these matters provide a legal basis upon which he may appeal the decision of Magistrate Hoare and the 9 June Orders.

92 Analogous considerations apply to purported questions of law 1(c) and (d). With respect to the allegation that the Respondent misled the Appellant by 'quoting ... non‑existent legislation', this appears to be a reference to correspondence sent to the Appellant by the Respondent's solicitors, in which the Appellant was told, among other things, that information pertaining to the Appellant's former spouse's share of the school fees could not be provided to him due to the operation of 'privacy laws'.[48] The term was again employed by the Respondent's solicitors in a subsequent letter to the Appellant dated 14 July 2020.[49] From what I can gather, the crux of the Appellant's argument is that the term was used by the Respondent's solicitors to befuddle and deceive him. If this is so, I simply do not accept this argument. Most significantly, however, I fail to see how the use of the term 'privacy laws' relates to the matters pleaded in the Magistrates' Court Proceeding. The fact of the matter is that the Appellant's liability to pay the fees is not contingent, or in any way conditional, upon whether or not his former spouse has or has not paid her share of the fees. In fact, the evidence is that the Appellant and his former spouse were each invoiced separately for their individual shares of the school fees. At the very least, the invoices issued to the Appellant for his share of the school fees were before the Magistrate on 9 June 2021.[50]

93 The assertion at question 1(d) is further elaborated on in the Appellant's associated grounds of appeal, where it is stated that the affidavit of documents filed by the Respondent in the Magistrates' Court Proceeding did not disclose the Respondent's bank statements. This ground appears to be directed to whether the Appellant's former spouse paid her half share of the school fees. For the reasons outlined in the preceding paragraph, the Appellant's indebtedness to the Respondent is not subject to, or conditional on, any payments made by his former spouse. Rather, the material filed by the Appellant in both this proceeding and the Magistrates' Court Proceeding shows that the Respondent provided him with fee statements on or around 5 February 2020, 1 June 2020 and 10 August 2020.[51] The fee statements provide an itemised break down of the debt owed by the Appellant. That the Respondent did not furnish any bank statements to the Appellant in its affidavit of documents is neither here nor there: the bank statements are not relevant to the claim pressed in the Magistrates' Court Proceeding for the sole reason that they could not possibility show payment of moneys by the Appellant in circumstances where the Appellant had yet to pay the fees owed to the Respondent.

94 In these circumstances, the purported questions of law and grounds of appeal raised by the Appellant at questions 1(a) to (d) are rejected.

95 As to the second asserted question of law raised by the Appellant at question 1(e), in this question the Appellant claims that he was denied procedural fairness in a number of respects. As a denial of procedural fairness is a recognised question of law, I will immediately turn to the question of whether the matters raised by the Appellant in this question are reasonably arguable.

96 In short, I accept the Respondent's submissions that this aspect of the Notice of Appeal suffers from the same deficiencies as those identified in questions 1(a) to (d). In respect of question 1(e)(i), there is no evidence before this Court regarding the Respondent's failure to comply with a subpoena issued by the Appellant in the Magistrates' Court Proceeding. The subpoena issued by the Appellant is not in evidence. Further, the Respondent has failed to articulate the relevance of the subpoena and its connection to the debt owed by the Respondent. Having regard to the arguments made and the material filed by the Appellant hitherto, I can only assume that, in seeking additional documents from the Respondent, the Appellant sought to obtain confirmation of payments made by his former spouse. No‑one addressed me on the question of whether a subpoena addressed to a party to the proceeding was valid, however, for the same reasons, I do not need to take this any further.

97 Similarly, the purported questions of law contained in the Notice of Appeal at questions 1(e)(ii) and (iii) are misconceived. The Appellant has not provided any evidence to corroborate his claim that the Court was misled, nor has he managed to explain how and why the bank's alleged failure to comply with the subpoena relates to the issues in the Magistrates' Court Proceeding. As demonstrated by the documents filed by the Appellant himself, the bank advised the Magistrates' Court that it did not have any documents to produce in response to the subpoena.[52] This ground appears to be directed to the Appellant's relentless pursuit to ascertain whether or not his former spouse paid her share of the school fees, and suffers from similar deficiencies to those previously outlined.

98 The Appellant also asserts, in question 1(e)(iii), that the hearing before Magistrate Hoare on 9 June 2021 occurred in breach of r 42A.09 of the Magistrates' Court Rules. The Appellant asserts that the usual procedure for objections to subpoena was not followed in the Magistrates' Court Proceeding, as the matter progressed to a final hearing on 9 June 2021 without first determining any objections to the subpoenas served by the Appellant. Rule 42A.09, among other things, sets out the proceeding that is to occur in the Magistrates' Court following an objection to a subpoena by an addressee. While it is not clear to which subpoena the Appellant is referring, there is a paucity of material before the Court as to why the subpoena issued to the Respondent was not heard by the Court. This much is demonstrated by the following excerpt of the transcript of hearing on 9 June 2021 on the question of costs:[53]

COUNSEL: ... The [Respondent] was forced to object to the subpoena. There is grounds of relevance that there was confidential information that was irrelevant. It was arguably vexatious. That was prepared by myself was filed with the court. I don't believe the court ever listed the objection application. The objection was filed but there was no hearing date and the [Appellant] I suppose did not take it any further. ... I know there was no determination by the court on that issue but given the irrelevant nature of it, and arguably vexatious nature of it, I submit that, I request that that would also be included in costs if your Honour so decides.

99 From this excerpt, the procedural issues to do with the subpoena and the objections are not particularly clear. However, this goes nowhere. Whatever the case, it cannot be said that this ill-formed alleged breach of procedure is an arguable ground of appeal.

100 The final matters raised by the Appellant at questions 1(e)(iv) and (v) of the Notice of Appeal concern the circumstances surrounding the Appellant's failure to attend the hearing before Magistrate Hoare on 9 June 2021. I accept the submissions made by the Respondent that the Appellant failed to take any meaningful steps to notify the court of any issue relating to or affecting his ability to participate in the hearing. I also consider that the Appellant's assertion that he only received the teleconferencing details minutes before the hearing is directly contradicted by the evidence. As outlined in paragraph 21 above, the court provided the parties (including the Appellant) a notice of hearing advising that the Respondent's claim was listed for hearing on 9 June 2021, with the teleconferencing link later provided to the parties on 13 May 2021, well prior to the hea[54]ng itself.54 However, the Appellant appears to be referring to the email sent to him at 10:26am on 9 June 2021. This email was sent to him only after he failed to attend the hearing and had failed to inform the court of any circumstances that were impeding his ability to access [55]e hearing.55 A bare reference to 'unprecedented storms' made at the re-hearing application, and persisted with in this proceeding, is in no way sufficient in circumstances where the court found that the Appellant was aware of the hearing on 9 June 2021. Therefore, this aspect of the Appellant's appeal is also without merit.

101 As to the Appellant's complaint that he suffered procedural unfairness on the basis that he was unable to connect to the hearing due to network problems caused by 'unprecedented storms', I do not consider that this ground is reasonably arguable. The Appellant had every opportunity to provide evidence in support of his being impeded from joining the hearing on 9 June 2021 at the re-hearing before Magistrate Foster on 8 August 2021, but failed to do so. Instead, Magistrate Foster, after hearing from the Appellant, did not accept this and found that the Appellant lacked an arguable defence on the merits.

102 The purported question of law raised by the Appellant at question 1(e) does nothing to assist the case of the Appellant, whose case is not arguable on appeal.

1. Whether the learned judge acted upon the wrong principle that:
   1. A valid contract existed between the Appellant and the school due to consent orders between the Appellant and his ex.
   2. Failing to apply Jones v Dunkel inference to points 1 (b)-(e)(i) above.
   3. The school had the right to apply discounts to the other half of the fees and force the Appellant to pay the full amount of his half of the fees.

104 These questions suffer many of the same deficiencies as those already identified. These purported questions of law fail to identify and articulate the erroneous principle(s) that the Appellant claims the Magistrate applied at the hearing on 9 June 2021. It is also not entirely clear whether this question relates to the 9 June 2021 hearing or the 3 August 2021 hearing, or both. The Appellant's reference to a 'valid contract', which the Appellant identifies in his associated grounds of appeal as a document titled 'Acceptance of Offer', does not constitute a question of law which can successfully mount an appeal. Equally, the Appellant's assertion that the school applied discounts to the Appellant's former spouse's share of the fees does not constitute a question of law.

105 While failing to make an inference pursuant to Jones v Dunkel may constitute a question of law, it was not explained how this even arises in the context of the hearing on 9 June 2021. Such a proposition in the circumstances of this case is simply nonsensical.

106 Notwithstanding that the Appellant has otherwise failed to identify a question of law, the questions posed by the Appellant are not reasonably arguable. As best I can comprehend, question 2(a) concerns an allegation that his signature on the Acceptance of Offer was forged. This issue is a recurring theme throughout the Appellant's written material and was raised by him at the hearing before Magistrate Foster and again before me. Despite the gravity of the allegation made by the Appellant, he has failed to provide sufficient evidence to support his assertion that his signature was forged. The Appellant has filed two documents which appear to bear his signature, being the Acceptance of Offer and various documents filed in a proceeding before the Family Court of Australia, including an unsealed copy of consent orders agreed between the Appellant and his former spouse in that proceeding. Amongst other things, the orders authorised the Appellant's former spouse to execute, on behalf of the Appellant, all documentation to confirm the enrolment and attendance of their children at the Respondent school. The orders also expressly state that this authorisation is conferred 'without the need for the Father's signature', and that, until further order, the daughters are to remain enrolled at the Respondent school.[56] Put simply, the evidence relied on by the Appellant fails to support the serious allegations made by him, and even so these issues are completely irrelevant to the appeal brought by the Appellant. The Appellant's submissions in this regard were barely comprehensible. If he was challenging that there was an agreement or contract between he and the Respondent for the payment of his share of the school fees on the basis that his signature was forged, no such agreement or contract was pleaded by the Respondent in its statement of claim or by the Appellant in his defence. He makes no allegation of forgery whatsoever in his defence.[57] As I have been at pains to stress, the Magistrates' Court Proceeding concerned a claim for a debt owed by the Appellant, the liability for which had been conceded in the Appellant's defence.

107 Questions 2(b) and (c) of the purported questions of law are also not reasonably arguable. The Appellant's reliance on the rule in Jones v Dunkel is misconceived, as the rule does not operate in the manner contended for by the Appellant. Crucially, the matters in respect of which the Appellant seeks the Court to draw an inference are entirely irrelevant to the Appellant's liability to the Respondent. The allegations made by the Appellant in his associated grounds of appeal made in support of these questions are scandalous in nature and do not warrant repetition. However, it is sufficient to note that there is no nexus between these grounds and the decision that is the subject of the Appellant's appeal. Whether or not there was a discount applied by the Respondent in respect of the Appellant's former spouse's share of the fees is of no moment given this issue has no relationship with the Appellant's liability to the Respondent.

108 It follows that the questions contained in question 2 fail to identify a question of law and are not reasonably arguable.

109 Question 3 of the Notice of Appeal sets out the following purported question of law:

3. The learned judge gave inadequate reasons for:

a. Why the Appellant had no chance of success

b. Points 2 (a)-(c) above.

110 As opposed to the previous questions posed by the Appellant in his Notice of Appeal, the third purported question of law appears to solely concern the decision of Magistrate Foster on 3 August 2021. As the Respondent concedes in its written outline of submissions that the adequacy of reasons is a recognised question of law, I deal with the question of whether an arguable case arises in respect of either of the grounds raised by the Appellant.

111 In Transport Accident Commission v Kamel,[58] Kyrou AJA (with whom Warren CJ and Ashley JA agreed) summarised the principles for determining the adequacy of reasons as follows:[59]

judicial reasons for decision must sufficiently explain the basis for any findings that are made in reaching that decision. It has been said that the reasons must disclose 'the route that led to the answer', 'how or why the conclusion was reached', 'the process of reasoning' or 'the path of reasoning'.

112 In this case, the Magistrate's obligation was to explain his reasoning process.[60] While those reasons need not be elaborate or voluminous, it was necessary for the Magistrate to articulate the essential ground or grounds upon which the decision rests.[61]

113 As the transcript of hearing makes abundantly clear, Magistrate Foster made a concerted effort, and afforded the Appellant every opportunity, to establish whether or not the Appellant had a 'defence on the merits'.[62] Upon hearing from the Respondent's then-counsel, the Magistrate observed that the court documents (including the Appellant's defence) indicated that the Appellant had agreed to pay his share of the fees. This position was acknowledged by the Appellant, who then expressed concern that he had been saddled with the 'lion's share of the fees'. The Appellant then proceeded to make several of the submissions that he has aired in this proceeding, following which the Magistrate said to the Appellant:[63]

I'll give you one final chance. You need to establish a defence on the merits. Your defence at the moment says you're entitled to pay or required to pay only a half share of those fees. ... In my view there is merit in what [the Respondent's then-counsel] says is that there is no relevance in relation to what your ex-wife has actually paid. The real issue has been billed to those fees [sic]. ... So I will give you one final chance as to what your defence on the merits is to this case.

114 In response, the Appellant made several complaints about the Respondent's conduct, but failed to avail himself of the opportunity afforded to him by Magistrate Foster, who then proceeded to deliver reasons for refusing the application. At the outset of his reasons the Magistrate expressed some scepticism as to the merit of the Appellant's reasons for failing to appear at the hearing on 9 June 2021. The Magistrate then, quite appropriately, proceeded to address the question of whether or not the Appellant had established a 'defence on the merits' (not, as the Appellant seems to suggest, whether the Appellant had 'no chance of success'). In doing so, the Magistrate proceeded on the correct footing.[64]

115 The Magistrate then referred to a spreadsheet tendered by the Respondent which the Magistrate considered to show, in 'some precise detail', the fees charged to and owed by the Appellant. The Magistrate went on to observe:[65]

it is abundantly clear on that business record that the ex-wife has been paying that off and that Mr Eimany has not paid any amounts towards those fees and no doubt that's the cause for the $400 late fee.

116 The Magistrate considered the evidence and, in turn, refused to grant the Appellant's application for a re-hearing. This decision was made on the following bases:

The circumstances where Mr Eimany has already admitted in the defence that he is liable to pay 50% of the share, it's not relevant in my view for Mr Eimany to be searching for materials, evidence in payments being made by his ex-wife's receipts and all that in my view. Even if it wasn't good [sic], the ex's records show the wife paying those 50% off in installments [sic]. For those reasons I will refuse leave required for rehearing and the application is otherwise refused.

117 Having regard to the transcript of hearing, I am satisfied that the Magistrate's reasons were more than sufficient to explain his process of reasoning. While the Magistrate's reasons are not especially voluminous, they are not required to be. Rather, the Magistrate applied the correct test and explained, in the clearest possible terms, why he had reached the conclusion that the Appellant did not have a defence on the merits. The Magistrate articulated the evidentiary basis for his reasons, namely the spreadsheet, and addressed the Appellant's main arguments which he did not find convincing. The fact that the Appellant is not satisfied with or refuses to accept the Magistrate's reasons does not mean that the Magistrate's reasons are inadequate. Thus the learned Magistrate applied the correct test, his findings were reasonably open to him, and his reasons for his decision are adequate. For this reason, the question of law and accompanying ground of appeal at question 3(a) are not arguable on appeal, and for this reason are to be rejected.

118 The question raised at 3(b) of the Notice of Appeal can be immediately disposed of without further comment for the reasons identified in relation to the second purported question of law at paragraphs 106 to 107 above.

119 For completeness, I consider no injustice would occasion if the appeal were to be dismissed. The claim made in the Magistrates' Court Proceeding was in respect of school fees owed by the Appellant, who had accepted liability for those fees. By dismissing the appeal, nothing will change and the Appellant will remain indebted to the Respondent. For this reason, the appeal is to be dismissed.

120 As discussed earlier, the Appellant provided to the Court further iterations of his Notice of Appeal on 30 November 2021, 14 February 2022 and 25 March 2022. As the Third Proposed Amended Notice was the final copy provided to the Court, it will be taken to supersede the preceding versions of the notices of appeal.

121 I will briefly deal with the Third Proposed Amended Notice, which I consider to be plagued by the same deficiencies as the original Notice of Appeal. The document repeats a number of the existing grounds, the substance of which has already been dealt with in these reasons, and introduces three new purported questions of law:

4. Whether the Appellant had been denied procedural fairness by:

a. Making a determination without reading Appellant's affidavit

1. Large parts of Magistrates' Court file and audio recording have gone missing and the Appellant would have been unable to prepare for his application for re-hearing.
2. Magistrate Foster did not receive Appellant's affidavit via email even by the end of the hearing whilst he was able to receive the Respondent's email and attachments, lending more weight to network problems at Magistrates' Court.

122 In this ground the Appellant has, at least arguably, raised a question of law. However, I do not consider these grounds to be arguable on appeal. Grounds 4(a) and (c) are devoid of merit. While the Appellant has failed to specify both the hearing and the affidavit to which he refers in (a), the transcript of the hearing on 3 August 2021 contains discussion regarding the whereabouts of materials provided to the court by the Appellant. The transcript also makes plain that Magistrate Foster had received and considered the Appellant's affidavit filed in support of his application for a re‑hearing. This much is demonstrated by the following extract of the transcript towards the beginning of the hearing:[66]

HIS HONOUR: - - - the [Appellant's] affidavit in support, the affidavit in support goes to the reason why he couldn't appear on 2 July. You've received that?

COUNSEL: I have - - -

HIS HONOUR: - - - He's saying I was there and the reason for not hearing he still needs to show a valid basis, a basis upon which he'll be summarily setting aside the judgement.

COUNSEL: Well that's right your Honour. It seems to be default of a non appearance. Mr Eimany knew about the hearing date, that's clear. He alleges some network problems which was in mind I'd be on [inaudible] in court - - -

HIS HONOUR: - - - yes.

123 The Appellant then referred to a subsequent affidavit, sent to the court on the morning of the hearing, which neither the Magistrate nor the Respondent's counsel had seen. The Magistrate asked the Appellant to explain the nature of the additional affidavit, whose response contained spurious allegations of collusion between the Respondent and his former spouse. Shortly after this, the Magistrate confirmed that his associate had received a copy of the affidavit. The transcript does not disclose whether or not the further affidavit was read by the Magistrate. Nonetheless, even if the Magistrate failed to peruse the affidavit, the transcript makes it clear that the Appellant was afforded an opportunity to describe the contents of the affidavit and make submissions in respect of its contents. Further, the Appellant cannot expect to provide to the court an affidavit on the morning of the hearing only to subsequently complain of, and seek to leverage as a ground of appeal, the Magistrate's failure to read the affidavit. In circumstances where, at the very least, the Magistrate had read the Appellant's affidavit in support and gave the Appellant an opportunity to describe the contents of his subsequent affidavit, it cannot be said that the Appellant's ground of appeal is arguable on appeal.

124 The same outcome befalls the purported question of law at 4(b) of the Third Proposed Amended Notice. The Appellant has failed to convey how his inability to review the entirety of the transcript has denied him procedural fairness. While the transcript of hearing does appear to have failed to capture an undefined portion of the hearing, the Appellant's contention that this omission has hampered his ability to prepare for his re-hearing application is unexplained and without merit. Principally, this is because the Appellant was required at the hearing on 3 August 2021 to demonstrate that he had a defence on the merits, which he was ultimately unable to do. That requirement is not contingent upon what had happened at the earlier hearing.

125 Therefore, the additional grounds raised by the Appellant fail to cure the deficiencies with the original Notice of Appeal and are to be rejected. The Appellant has failed to demonstrate that he has an arguable case on appeal, and for this reason the Appellant's appeal is untenable.

126 Further, I consider that this proceeding constitutes an abuse of process, such that it ought to be dismissed under r 58.10(9)(c) of the Rules. The nature of certain aspects of the relief sought by the Appellant, particularly in the 23 February Summons, the matters and allegations that he has ventilated throughout the course of this proceeding, and, relatedly, the material that he has filed clearly demonstrate that this proceeding has been used for reasons that are unrelated to the Appellant's liability to pay the school fees. I consider that the Appellant has attempted to use this proceeding as a vehicle through which to air his personal grievances and animosities. I do not propose to spell out the precise manner or all of the allegations aired by the Appellant, as to do so would simply further the Appellant's impermissible and collateral purpose. However, certain examples are apposite and illustrative in this regard.

127 To take one example, by the 23 February Summons the Appellant has asked the Court to make the following orders:

1. Leave be granted to audiovisually record the proceeding on 25 February 2022, to submit to Victoria Police, AFP, media, Ruyton Board member and parents, and Victorian Legal Services Board and Commissioner ...
2. Admit into evidence Appellant's Family Court affidavit dated 6 July 2017 ...
3. Admit as fact that [the Respondent's solicitor] has refused to give reasons for refusing to disclose receipts of payment made to the school by the Appellant's former partner.

128 The 23 February Summons seeks that various findings of a criminal nature be made against the Respondent, who the Appellant asserts has concealed documents which the Appellant apparently believes will demonstrate that his former spouse contributed a lower portion of the school fees. The Appellant also seeks orders for certain persons to be referred to the law enforcement and regulatory bodies for what he says are crimes committed by them. Putting aside the fact that these matters have nothing to do with the Appellant's liability to pay the fees, the relief sought by the Appellant in the 23 February Summons reinforces the position that this proceeding has been used to harass and vilify the Respondent and the Appellant's former spouse.

129 The Appellant's attempt to utilise this proceeding to pursue his own agenda is also evidenced by the material that he has filed in this proceeding. By way of example, the contents of, and material annexed to, the First Eimany Affidavit make certain allegations relating to the outcome of a proceeding in the Family Court of Australia, in which the Appellant claims that he was 'pressured to sign' consent orders.[67] The Appellant's affidavit also contains various other allegations concerning the Respondent's conduct vis-à-vis the Appellant's daughters,[68] which need not be repeated here. Importantly, much of the material filed by the Appellant is completely irrelevant to the issues raised by this proceeding, a point that was only reinforced by the Appellant's provision to the Court and the Respondent of the 'family law enquiry' document shortly prior to the commencement of the hearing of these applications.

130 The Appellant has continually made scandalous allegations about the Respondent's officers, both in his written material and at the hearing on 6 May 2022.[69] Again, while those allegations need not be repeated here, I consider that they have been made in the absence of any proper basis and amount to little more than attempted character assassinations. Relatedly, the Appellant's material is replete with allegations of forgery, fraud and conspiracy, which allegations have been made without any evidentiary basis.

131 I also accept the Respondent's submission that the Appellant has consistently failed to raise any allegation, fact, or legal principle that has any prospect of changing the Appellant's liability to the Respondent. Rather, the Appellant has continually pursued vexatious arguments which appear to have no basis or evidence.

132 Having regard to these matters, it is apparent that the Appellant, while clearly aggrieved by the outcome in the Magistrates' Court Proceeding, has pursued this appeal for the ulterior motive of publicly vilifying the Respondent and his former spouse. As such, the appeal is frivolous, vexatious or otherwise an abuse of the process and should be dismissed.

133 For these reasons, the Appellant's application for leave to bring the appeal is dismissed, and the Respondent's application for summary dismissal is granted.

134 I will hear further from the parties on the question of the form of orders and as to costs. To this end, the proceeding will be listed for the making of final orders on 19 August 2022. The parties are encouraged to agree to orders to give effect to this ruling, including as to costs, and any proposed orders may be provided to my Chambers prior to the date of the hearing.

[1] An earlier, unsworn iteration of the Appellant's affidavit dated 25 March 2022 was filed on the same date. Save that the unsworn copy of the affidavit does not contain exhibits, it is virtually identical to the sworn version referred to in this paragraph.

[2] [2020] VSC 346, [8]-[9]. His Honour's decision was later upheld by the Court of Appeal in Daher v Bell [2021] VSCA 192 (Kyrou, Kaye and Kennedy JJA).

[3] Magistrates' Court Act, s 109(2)(a).

[4] Magistrates' Court Act, s 109(3).

[6] [2017] VSC 459 ('Mako'ochieng').

[7] Ibid, [8]-[9] (citations omitted). See also Coulston v State Coroner of Victoria [2018] VSC 103, [35]-[37] (Garde J).

[8] [1995] VicRp 58; [1995] 2 VR 318 ('Kinex').

[10] [1976] HCA 6; (1976) 180 CLR 213.

[11] [1981] HCA 20; (1981) 147 CLR 246.

[13] [1966] HCA 36; (1966) 117 CLR 423.

[15] DPP v Sabransky [2002] VSC 143, [28]-[31] (Kellam J); PB & EL Wright Pty Ltd v Craig Martin Pty Ltd [2002] VSC 304, [19]-[20] (McDonald J).

[16] [2014] VSC 250, [79]-[80] (citations omitted).

[17] [2015] VSC 1.

[18] [2013] VSCA 158; (2013) 42 VR 27.

[19] See also Romas v Green [2015] VSC 95, [28].

[20] Exhibit ATE-11 to First Eimany Affidavit, 167.

[22] Exhibit MS-1 to Sandor Affidavit, 6.

[23] Exhibit MS-2 to Sandor Affidavit, 8.

[24] Exhibit MS-3 to Sandor Affidavit,10.

[25] Exhibit MS-4 to Sandor Affidavit, 12.

[26] Transcript of Proceedings (Melbourne Magistrates' Court, L 12073268, 9 June 2021), Exhibit ATE-2 to Fourth Eimany Affidavit, 11-12.

[27] Exhibit MS-5 to Sandor Affidavit, 14.

[28] Exhibit MS-6 to Sandor Affidavit, 16.

[29] Transcript of Proceedings, Ruyton v Eimany (Melbourne Magistrates' Court, L 12073268, Magistrate Foster, 3 August 2021), Exhibit ATE-2 to Fourth Eimany Affidavit, 17-19 ('3 August Transcript').

[33] Exhibit MS-7 to Sandor Affidavit, 19.

[34] Respondent's written outline of submissions dated 7 April 2022, [3.1(b)].

[35] Respondent's written outline of submissions dated 7 April 2022, [3.1(c)].

[36] Fourth Eimany Affidavit, [9]; Exhibit ATE-4 to Fourth Eimany Affidavit, 80.

[38] Transcript of Proceedings, Eimany v Ruyton Girls' School (Supreme Court of Victoria, Matthews AsJ, 6 May 2022), T7.2-26 ('6 May Transcript').

[41] For example, an appeal under Order 56 is required to be made by way of Originating Motion, as opposed to a Notice of Appeal (which is so for the present case).

[42] Rules, r 58.11; Magistrates' Court Act, s 109(4).

[43] 3 August Transcript, 17‑18 (emphasis added).

[44] FCA Act, s 24(1)(a). 'Court' is defined in s 4 to mean 'the Federal Court of Australia established by this Act'.

[45] Exhibit ATE-1 to the First Eimany Affidavit.

[47] Exhibit ATE-11 to First Eimany Affidavit, 172.

[48] Exhibit ATE-1 to First Eimany Affidavit, 26.

[52] First Eimany Affidavit, [16]; Exhibit ATE-12 to First Eimany Affidavit, 187.

[53] Exhibit ATE-1 to Third Eimany Affidavit, 12-13.

[54] Sandor Affidavit, [8]-[9]; Exhibit MS-3 to Sandor Affidavit.

[56] Exhibit ATE-4 to the First Eimany Affidavit, 123-125.

[57] Exhibit ATE-11 to the First Eimany Affidavit.

[58] [2011] VSCA 110 ('Kamel').

[60] Esposito v Victorian Legal Services Board [2021] VSC 834, [44] (Gorton J).

[61] Baranadurage v Waverley Forklifts Pty Ltd (2013) 65 MVR 368, [24] (Beach JA, with whom Osborn JA agreed).

[62] For example, see Kostokanellis v Allen [1974] VicRp 71; [1974] VR 596 ('Kostokanellis').

[64] The test in Kostokanellis was recently applied by Irving AsJ in Kovacic v A&S Powersellers Pty Ltd [2022] VSC 77, [84]-[85].

[68] See, eg, First Eimany Affidavit, [10].

[69] See, eg, 6 May Transcript, T42.17-18.