VICVSCA

Kay v Dye & Ors [2000] VSCA 177

[2000] VSCA 177

Court of Appeal (Vic)|2000-09-28|Before: ORMISTON, BATT and CHERNOV, JJ.A.

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At a glance

AI case summary

Result

defendant. Application dismissed.

Key principles

Where an application for extension of time to appeal is sought, and the proposed appeal is so devoid of merit that it is bound to fail, the court may refuse the extension on the...
A court officer's decision to waive court fees based on a plaintiff's financial circumstances questionnaire does not constitute an undertaking by the court that any costs orders...
The power to impose terms on the re-instatement of proceedings under County Court Rule 1.14(1)(b) is discretionary and will not be disturbed on appeal absent arguable error in...
A judge's failure to comply with a 'procedure' that was not brought to his attention and which has no binding legal effect does not constitute an error of law.

Issues before the court

Whether the applicant required leave to appeal from an interlocutory order of the County Court
Whether the application for extension of time to apply for leave to appeal should be granted
Whether the primary judge erred in imposing terms on the re-instatement of proceedings

Plain English Summary

The Court of Appeal refused to give a self-represented litigant more time to appeal a County Court decision because the appeal had no chance of success. The applicant had been declared a vexatious litigant and wanted to appeal a judge's decision that allowed his case to continue only if he paid certain costs by a specific date. He argued that the judge shouldn't have required immediate payment because he had previously told court staff (when applying to waive court fees) that he would pay any costs in instalments once he found work. The Court of Appeal found that this fee waiver form was only for deciding whether he could avoid paying filing fees—it didn't prevent the court from ordering him to pay costs to the other side, and it didn't bind the other party. The primary judge had properly balanced the interests of both sides. Because the appeal was bound to fail, giving the applicant more time would be pointless, so the application was dismissed.

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Judgment (5 paragraphs)

[1]

The applicant contended that, since the court waived the payment of the fees that were otherwise payable by him in relation to the writ which he filed, it accepted his promise to pay any relevant costs when he resumed employment, by weekly instalments. He claimed that it followed that his Honour erred in imposing the requirement that he pay the costs in question as a condition of his appeal being re-instated. In my view, it is plain that his Honour made no error in ordering the applicant to pay the costs in question. First, the applicant did not bring to his Honour's attention the document in question or put the argument that he put before us in relation to it. In any event, the applicant's argument is misconceived. The questions that he was asked to answer were sought to elicit information that would enable the court officer to determine whether to exercise the discretion to waive the prescribed fee. It was plainly not an intimation by the court that no costs orders would be made against him otherwise than in conformity with the proposal contained in his relevant answer. More importantly, perhaps, the respondents were not parties to the questionnaire and were obviously not bound by it. Thus, this argument of the applicant must fail.

The applicant could not point to any other arguable error that his Honour made in exercising his discretion. Moreover, having considered his Honour's reasons, I am not able to discern any such error on his Honour's part. His Honour carefully analysed the case for the applicant and took into account that an injustice may be perpetrated on the applicant if he were unable to proceed with his action. His Honour also took account, properly, I think, of the fact that the applicant had failed to comply with various orders of the court and that there would be an injustice to the respondents if the applicant were to have his proceeding re-instated without complying with the orders previously made. His Honour obviously also had regard to the fact that the adjournments put the respondents to unnecessary expense and he accepted that the applicant had difficulty in obtaining a psychiatric report because of the costs involved.

Kay v Dye & Ors [2000] VSCA 177

At a glance

Result

Key principles

Issues before the court

Plain English Summary

Judgment (5 paragraphs)

Cited legislation

Parties

Cases Cited (1)

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