Ah Fook v Transport Accident Commission

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCI 2021 0127

TIMOTHY AH FOOK	Applicant
v
TRANSPORT ACCIDENT COMMISSION	Respondent

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JUDGES:	BEACH JA, KEOGH and J FORREST AJJA
WHERE HELD:	Melbourne
DATE OF HEARING:	9 September 2022
DATE OF JUDGMENT:	16 September 2022
MEDIUM NEUTRAL CITATION:	[2022] VSCA 199
JUDGMENT APPEALED FROM:	[2021] VCC 1518 (Judge Pillay)

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ACCIDENT COMPENSATION – Transport accident – Serious injury – Application for leave to commence common law proceeding – Impairment of function of neck and spine – Applicant’s evidence unreliable – Applicant not establishing that impairment consequences at least very considerable – Reasons – Adequacy of reasons – Judge’s reasons exemplary.

PRACTICE AND PROCEDURE – Adjournment – Applicant applied during trial to adjourn trial to obtain evidence from additional witnesses – Application refused by trial judge – Procedural fairness – No denial of procedural fairness by trial judge – Adjournment application hopeless – Judge correct to refuse adjournment.

Transport Accident Act 1986, s 93(4)(d).

Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175, Hunter v Transport Accident Commission [2005] VSCA 1 referred to.

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Counsel
Applicant:		Mr ADB Ingram KC with Dr JC Plunkett
Respondent		Ms M Britbart KC with Mr BW Jellis
Solicitors
Applicant:	Slater & Gordon
Respondent	HWL Ebsworth Lawyers

BEACH JA
KEOGH AJA
J FORREST AJA:

On 19 October 2016, the applicant was a backseat passenger in a motor vehicle when it was struck by another motor vehicle, causing the vehicle in which the applicant was seated to collide with a pole (‘the accident’). As a result of the accident, among other injuries, the applicant suffered a fracture at the C6 level of his cervical spine.
By an originating motion filed in the County Court on 3 February 2021, the applicant sought leave, pursuant to s 93(4)(d) of the Transport Accident Act 1986 (‘the Act’) to commence a proceeding claiming damages in respect of the injuries he received as a result of the accident. The applicant relied upon para (a) of the definition of ‘serious injury’ contained in s 93(17) of the Act — namely, ‘serious long-term impairment or loss of a body function’. The body function relied upon was the function of the neck and spine.
The trial of the s 93 application was heard in the County Court by Judge Pillay on 15, 16 and 17 September 2021. On the second day of the trial, counsel for the applicant applied for an adjournment for the purpose of calling evidence from additional witnesses. The judge heard the parties on the applicant’s application and, at the conclusion of argument, delivered a ruling (‘the Ruling’) refusing the adjournment application. As a result of the refusal of the adjournment application, the trial proceeded to a conclusion on the following day.
On 15 October 2021, the judge made an order dismissing the application for leave to commence a common law proceeding.[1] In dismissing the application, the judge accepted a submission made by the respondent that the applicant’s evidence at trial was unreliable and inconsistent, such that it could not be accepted unless it was corroborated from independent sources; and that once the applicant’s evidence was ‘isolated in this way’, the applicant’s impairment consequences could not be considered ‘more than significant or marked’.[2]
[1]Ah Fook v Transport Accident Commission [2021] VCC 1518 (‘Reasons’).
[2]Ibid [2], [9], [38] and [60]–[62]. See also Humphries v Poljak [1992] 2 VR 129, 140.
The applicant now seeks leave to appeal on the following proposed grounds:
1.The judge erred in law in failing to afford the applicant procedural fairness.
2.The judge erred in law in refusing to permit the applicant to call relevant evidence.
3.The reasons for [the Ruling and the ultimate decision] do not disclose an adequate process of reasoning to demonstrate why the applicant was not permitted to call relevant evidence.
As is plain from their terms, proposed grounds 1 and 2 relate to the refusal by the judge to grant the adjournment application made on the second day of the trial. While on one view, proposed ground 3 is similarly limited, from the applicant’s written case filed in this Court, it appears that proposed ground 3 encompasses complaints about the adequacy of the reasons for refusing the adjournment and a complaint about the judge’s assessment of the applicant’s credit in his ultimate reasons for refusing the application for leave to bring a common law proceeding.

Background facts

The applicant was born in June 1973. He was 43 at the time of the accident, and 48 at the time of trial. He was born and raised in Samoa, where he attended secondary school and subsequently worked in a bakery. He lived in New Zealand between 2002 and 2012 and, during this period, worked in a cardboard factory. He is married and has six children. In 2012, he migrated to Australia and began working as a labourer at Cedar Meats.
As we have already said, the applicant was involved in a transport accident on 19 October 2016. The accident occurred when the left side of the vehicle in which he was a rear seat passenger was struck by another vehicle, causing the applicant’s vehicle to spin round and impact a pole. Following the accident, the applicant was taken by ambulance to Sunshine Hospital where he was diagnosed with a fracture at the C6 level of his cervical spine and injuries to his cervical ligaments. He was treated with a hard cervical collar and remained in a neck brace for six months after his discharge from hospital.
On 20 October 2016, the day after the accident, the applicant underwent MRI scanning in which the left C6 superior facet process fracture previously described was difficult to visualise. Significant interspinous soft tissue oedema from C2 to C6 levels was thought in keeping with a moderate to severe grade interspinous ligament sprain or tear. There was moderate to marked right sided, and minor left sided, paraspinal intramuscular oedema which was thought likely to be traumatic in origin. An epidural haematoma posterior to the right C6 vertebral body was identified without significant cord compression and a small focal tear was identified.
The applicant attended a general practitioner, Dr Prabhu, and was referred to a physiotherapist, Darren Rose. After he commenced treatment, the applicant began to experience pain in his shoulders, worse on the left side, and pain in his lower back. A CT scan, taken in November 2016, was reported to show an ‘ununited superior left C6 facet articular process’. The applicant attended Mr Rose until around July 2017.
In September 2017, the applicant returned to Cedar Meats as a labourer, working full-time until 2018. In March 2018, he travelled to Samoa for his grandmother’s funeral.
In December 2018, the applicant underwent an ultrasound of his left shoulder which showed a full thickness tear of the supraspinatus tendon as a result of which he was referred to an orthopaedic surgeon, Mr Widjaja. Mr Widjaja recommended an MRI scan which was confirmatory of such a tear, and the applicant was referred for physiotherapy treatment which led to an improvement of his symptoms.

In March 2019, a further MRI scan of the cervical spine disclosed multilevel degenerative changes at C3-4, C4-5 and C5-6 levels, with minor neural compression of the exiting left C4 nerve root, compression of the C5 nerve roots, and possible compression of the left C6 nerve root.
In February 2020, the applicant left Cedar Meats and began full-time work as a machine operator at Bridgestone. In June 2021, he successfully sought to change jobs within Bridgestone to become a ‘skiver’. This involved similar duties. He continues to work full-time at Bridgestone. Both prior to commencing employment at Bridgestone, and prior to changing jobs to work as a skiver, the applicant was required to complete a health assessment at Sonic HealthPlus (‘Sonic’).
In July 2020, an MRI scan of the applicant’s cervical spine was reported as demonstrating disc bulging at the C4-5 and C6-7 levels, without significant neural compromise of the emerging cervical nerve roots or spinal cord.
In January 2021, the applicant commenced treatment at Point Cook Physiotherapy. A physiotherapist at that practice, Savita Basu, provided a report in which she said that a suspected diagnosis of cervical nerve root impingement with radiculopathy and central sensitization had been reported. In her report, Ms Basu also referred to what she described as the applicant’s ‘apparent apathy and disengagement in behaviour’ towards physiotherapy.

The proceeding at first instance

On the hearing of the application in the County Court, the applicant relied upon two affidavits sworn by him on 22 September 2020 and 18 August 2021. He also relied upon an affidavit sworn on 18 August 2021 by his wife, Angelique Ah Fook. Additionally, the parties tendered various documents, including medical reports, radiological reports and clinical notes. Amongst the documents tendered by the respondent were extracts from the applicant’s medical records held by Sonic in respect of examinations of the applicant on 30 January 2020 and 7 June 2021. The 7 June documents (each bearing a heading ‘Bridgestone’) included a completed ‘employment functional assessment’ and two forms headed ‘Form “A”’ and ‘Form “B”’ (which, for convenience, we will refer to as ‘Form A’ and ‘Form B’). Form A was a medical history questionnaire. It was signed by the applicant. According to its terms, it was signed in the presence of Dr Caaren Chin, whose signature appears at the foot of the form. Form B was a medical examination form completed by Dr Chin. The employment functional assessment was apparently completed by a Mr Bui.
The hearing took place audio-visually and commenced on the morning of 15 September 2021. The applicant’s evidence was given via an interpreter. He was the only witness to give viva voce evidence. In his examination-in-chief, the applicant adopted his affidavits. He was then cross-examined, and subsequently re-examined. In the course of his cross-examination, the applicant’s credit, and the reliability of his evidence, was put in issue.

Form A and Form B

Before proceeding further, it is necessary to say something about Form A and Form B. Neither of these documents were referred to in the applicant’s affidavits, but they assumed significance at trial. They related to the applicant’s medical examination at Sonic on 7 June 2021, which, as we have said, was arranged when the applicant sought to change jobs within Bridgestone.
As the judge recorded it, on 7 June 2021, the applicant’s first point of contact at Sonic was an employee, Tilka Hassing, who took basic observations of the applicant. There were a number of forms completed at that time. As we have already noted, Form A was a medical history questionnaire, and Form B recorded the results of the medical examination performed by Dr Chin on that day.[3]
[3]Reasons, [32].
Form A, signed by the applicant, contained a large number of yes/no questions. The applicant ticked ‘no’ to all of the questions, including ‘Do you suffer from any back, neck or spinal problems?’
Form B appears to set out Dr Chin’s findings on medical examination. She recorded that the applicant’s cervical and thoracolumbar spines were normal; there was no spinal scoliosis or spinal kyphosis; there was no detectable abnormality of the applicant’s shoulders, elbows, hips, knees, wrists, hands, ankles or feet; and that the applicant ‘comfortably exceeds the physical requirements of the proposed position and no significant risk factors are identified’.

The adjournment application

The adjournment application arose out of counsel for the respondent’s cross-examination of the applicant about Form A.
Shortly after the commencement of his cross-examination on the first day of the trial, the applicant was confronted by counsel for the respondent over his attendance at Sonic on 7 June 2021 and the results of the functional assessment as recorded by Mr Bui.
Then, just before lunch, counsel for the respondent moved to the contents of Form A and particularly the circumstances in which the document had been signed.
The applicant gave evidence that he filled out Form A, and it was witnessed by another person. When asked if he remembered who that person was, he said that he did but he did not know who it was. Immediately after giving this answer, the applicant said that he filled out the form with the assistance of his wife. There was then discussion between counsel and the judge, and lunch was taken.
After lunch, the cross-examiner returned to the topic, reminding the applicant that before lunch he said that he filled out Form A with the assistance of his wife. The applicant then gave evidence that he filled out the form by himself. A little later in his evidence, the applicant said he filled out the form by himself, but with the assistance of his wife in relation to one question. The cross-examination continued:
So is this what his Honour should understand, your wife assisted you with the question of, ‘Had you ever been a patient in the hospital?’ but as to everything else that’s in the form, you filled that out without the assistance of your wife?---Yes.
Still later in the cross-examination, the applicant said that he filled out Form A by himself, and without the assistance of his wife. When reminded of his evidence that his wife had helped him with the question, ‘Have you ever spent time in hospital as a patient?’, he said, ‘I never asked my wife’s assistance to help me with this form. I filled this form out by myself’. Shortly thereafter, the Court adjourned for a mid-afternoon break.
After the break, and before cross-examination was resumed, counsel for the applicant asked the judge for leave to issue subpoenas addressed to Dr Chin, a Dr Ramsurrun, and Sonic. When asked by his Honour whether he was seeking to adjourn the case, counsel said:
No, I’m going to seek to prove the circumstances in which the form [Form A] that the plaintiff had been extensively cross-examined upon was completed.
After further debate between the judge and counsel, counsel for the applicant asserted from the Bar table:
The clinical records indicate that the plaintiff’s [applicant’s] form was completed at that clinic but it may have been completed, not by Dr Chin but by Dr Ramsurrun. So the whole of the plaintiff’s evidence has been based on a misconception that he completed this form at a place other than where it was completed.
…
And I’d also like to affirmatively prove that the plaintiff did attend that clinic and that the forms were completed at that clinic to destroy the credit attack that’s been mounted on the plaintiff.
The matter was adjourned to the following day (the second day of the trial) to enable documents that had just come into the possession of the applicant’s counsel (and which he wished to use in re-examination of the applicant) to be shown to the respondent’s counsel.
At the commencement of the hearing on the second day the applicant’s counsel applied for an adjournment. In the course of his application, he said:
It’s becoming fairly evident but all of the evidence about this being completed with the wife and it being a kitchen table job, are really leading us up the garden path; it’s not what happened at all. It seems to us that before this case could proceed further, we need to obtain affidavits from the relevant personnel at the clinic, who saw the plaintiff [applicant], to tell us what they actually did when he was at the clinic. If the plaintiff was being asked questions that he didn’t understand, that’s going to be relevant. If there’s no interpreter present, that's going to be relevant as well.
Who saw the plaintiff and in what capacity is going to be relevant and it’s clear that those Forms A and B were completed at the same time and in the same clinic. So what we have had so far is largely irrelevant. It seems to me we can’t reach a logical conclusion in this case until we have that information.
In the course of his submissions on the second day of the trial, counsel for the applicant identified Dr Chin, Mr Bui and Ms Hassing as the witnesses he wished to subpoena.
The applicant’s counsel concluded his application for an adjournment by saying:
I think the case needs to be adjourned. We need to get probably affidavits from personnel at the clinic, and I’m not sure how quickly that can be done.
Counsel for the respondent opposed the adjournment, noting that Form A and Form B had been available to the parties from 21 July 2021. He submitted that the importance of Form A was ‘clear on its face’; and that if it was thought to be important that the circumstances in which Form A was completed needed to be investigated, that should have been done in the eight weeks (from 21 July 2021) that were available prior to trial.

The Ruling

At the conclusion of argument, the judge rejected the applicant’s adjournment application. In an ex tempore ruling, his Honour said:
This is an application by the plaintiff [applicant] to adjourn the trial so as to permit the plaintiff to obtain evidence from Dr Chin, Mr Bui and Ms Hassing. All three had some involvement with the plaintiff at or about 7 June 2021, during the time forms were filled out by the plaintiff for a job at Bridgestone. These forms were returned to the court under subpoena on 21 July 2021. The plaintiff was able to view them shortly thereafter and I have confirmed that they were viewed, relevantly, on 20 August and particularly by the plaintiff’s solicitor on 23 August.
A memorandum was prepared detailing examination of those forms and that memorandum and the documents were forwarded to counsel in time for conference on 26 August 2021. I note that at no time has the plaintiff sought evidence from any of those three witnesses.
The plaintiff himself filed a supplementary affidavit on 18 August 2021. This was after the documents were returned to the court but prior to the time that they were inspected by the plaintiff’s solicitor. It is not clear why, if it was thought so relevant now, that a further supplementary affidavit was not filed by the plaintiff setting out his knowledge as to the creation of those forms.
I note that in his affidavit filed 18 August 2021, the plaintiff made no mention of his involvement with the three witnesses or the circumstances of the completion of the Bridgestone forms. This is surprising because the Bridgestone forms go to the issue of the plaintiff’s impairment consequences. That is the central issue in dispute between the parties. Even a brief perusal of the forms shows that the forms are highly relevant to the issues in dispute in his serious injury application.
There was no doubt they would be cross-examined upon because they are in the defendant’s court book and the case had a narrow focus being, I repeat, the impairment consequences. On their face the forms appear to show that he had certain functional capacities which, once again, go to the central issues in dispute between the parties.
No application was made to vacate the trial date by senior counsel for the plaintiff at the start of this trial. It is only more than halfway through cross-examination that the application is made to adjourn the trial date to obtain the evidence from the three witnesses. In considering the application to adjourn, justice must be done to both parties. That principle is well-known from Aon Risk.
I consider there has been ample time to prepare the case. The issues are narrow in compass. The suggested evidence can also be obtained from the plaintiff in re-examination and the clinical notes and the forms are already in evidence. I note that it was in fact the plaintiff who volunteered the manner in which the forms were completed in cross-examination, it was not the defendant.
That is evidence in the keeping of the plaintiff’s camp at all times and, as I have said before, the plaintiff will be re-examined by very senior, experienced counsel. In addition, the plaintiff’s wife will also be called and in due course, re-examined. In this way the plaintiff will have ample material on which to base his arguments in rebuttal to the defendant’s submission.
I do not consider the plaintiff will be prejudiced, much less is the plaintiff unable to obtain a fair trial if an adjournment is not granted. I note that if the matter were to be adjourned, the matter would have to essentially recommence. It is a waste of two days, at least.
Balancing all the matters, I reject the plaintiff’s application.

The trial then proceeded with the resumption of the applicant’s cross-examination, which concluded on the second day.
In the course of the applicant’s re-examination on the following day (the third day of the hearing), he gave a fourth version of the circumstances in which Form A was filled out. He said that he had been given Form A when he attended Sonic on 7 June 2021, and that he filled it out by himself while he was sitting in the waiting room.
Addresses of counsel followed the end of the applicant’s evidence, and were completed on the 17 September 2021. The judge reserved his decision which, as we have said, he delivered on 15 October 2021.

Reasons for judgment

The judge identified the central issue between the parties as being whether or not the impairment consequences suffered by the applicant ‘rise to the level that warrants a finding of serious injury’.[4] The judge noted that it was not in dispute that the applicant bore the onus of proving on the balance of probabilities that the impairment consequences of the injury to his neck and spine, when judged by comparison with other cases in the range of possible impairments, could be fairly described at least as ‘very considerable’ and ‘more than significant or marked’.[5]
[4]Ibid [2].
[5]Ibid [4]. See also Humphries v Poljak [1992] 2 VR 129, 140.
The judge set out the applicant’s background, the circumstances of the accident, a description of the applicant’s medical treatment and relevant parts of the medical evidence.[6] In the course of doing so, he observed that it was accepted by the respondent that the applicant suffered from a ‘cervical impingement resulting in some radiculopathy symptoms into the left arm’.[7] A little later in his reasons, the judge noted that the respondent accepted that the applicant had suffered an injury to his neck that had led to some feelings of numbness and tingling in the left arm.[8]
[6]Reasons [10]–[35].
[7]Ibid [25].
[8]Ibid [35].
The judge commenced his analysis of whether the applicant’s impairment consequences were serious by looking at the applicant’s credit.[9] He said that, overall, he found the evidence of the applicant to be ‘unreliable, ambiguous and inconsistent’.[10] In relation to the unreliability of the applicant’s evidence, the judge referred to the four different versions which the applicant gave about the circumstances in which Form A was filled out.[11] As to other deficiencies in the applicant’s evidence, the judge, by way of example, referred to the applicant stating that he required prescription medication in order to go to Samoa; whereas, in contrast, the applicant’s treating doctor’s notes did not support that assertion.[12] The judge also described further examples of ambiguity and inconsistency in relation to the applicant’s evidence about the work he did at Cedar Meats after the accident, and the applicant’s subsequent duties at Bridgestone.[13]
[9]Ibid [36]–[47].
[10]Ibid [38].
[11]Ibid [39]–[42].
[12]Ibid [43].
[13]Ibid [44].
In relation to the applicant’s work capacity, the judge noted that in his first affidavit the applicant said that he had to move jobs from Cedar Meats to Bridgestone because of his injury. The judge said that this proposition ‘came under heavy attack’ by the respondent. The judge identified the first attack made by the respondent as relating to conflicting evidence the applicant gave during cross-examination about the work he did at Cedar Meats after the accident. Specifically, the judge observed that the applicant first gave evidence that he returned to his ‘normal full duties job’ after the accident; before later giving evidence that, on his return, he was given ‘very light and very easy’ work packing small mince parcels. The judge commented that, when asked why he moved to Bridgestone if his work was so light, the applicant gave a version different from that in his first affidavit, saying that he moved by reason of the increased pay and ability to support his family. The judge then noted that the applicant modified this version, by later saying that it was the cold conditions at Cedar Meats and the higher pay at Bridgestone that caused him to move. His Honour said that nowhere in the applicant’s affidavits did he depose to the ‘very light and very easy’ work of which he gave evidence in cross-examination.[14]
[14]Ibid [48].
The judge said that the applicant’s ‘changing evidence, and [this] very significant omissions from [his] affidavit raise[d] real doubts as to whether the statement in his affidavit, that he left Cedar Meats because it was too strenuous, [was] made out’.[15] The judge then referred to further doubts raised because of a second attack made by the respondent on the veracity of the applicant’s affidavit evidence which involved a comparison of that evidence and the notes and forms from Sonic. Having analysed the various discrepancies, the judge said that he could not accept the applicant’s evidence about his reason for leaving Cedar Meats.[16]
[15]Ibid [49].
[16]Ibid.
The judge then identified additional discrepancies between the applicant’s evidence about his medical treatment, and the extent of that treatment, and the evidence about those matters as disclosed in the medical records and reports which had been tendered. As a result of these discrepancies, the judge rejected the applicant’s evidence that he had not continued with physiotherapy because he did not have the requisite funds. The judge found that it was more likely that the applicant did not continue with physiotherapy because his condition was not as serious as he claimed in evidence.[17]
[17]Ibid [50].
Next the judge turned to the applicant’s evidence about pain, analysing it by reference to the work the applicant was able to perform and the relevant medical records and reports. The judge observed that the applicant was not able to answer why he was willing to take an immunisation injection, but not an injection to potentially alleviate his claimed ‘debilitating pain’. The judge said that this was a further area of inconsistency which did not give him confidence in accepting the applicant’s evidence. Ultimately, as a result of the inconsistencies referred to by the judge, his Honour rejected the applicant’s categorisation of his pain as ‘debilitating’.[18]
[18]Ibid [53].
Finally, the judge turned to the impairment consequences from which the applicant claimed to suffer. After again noting deficiencies in the applicant’s affidavits about these matters, the judge concluded:
Isolating the impairment consequences as a result of his neck injury, then, I find the following. He has pain, which requires the use of Panadol on a regular basis. He has a Deep Heat massage from his wife on a daily basis, and before going to work uses strapping about his neck and left shoulder. He struggles with driving for more than thirty minutes at a time and I find there are some limitations on his ability to do housework. He has decided not to pursue physiotherapy or the cortisone injections prescribed for the treatment of his neck and shoulder problems. He does get lumbar spinal pain on occasion. I find that his sleep is affected. I find some of his social sporting activities have also been affected. I find his neck and spinal injuries have left him stressed, worried and frustrated.
As to what he has retained. I find that he did not change work to Bridgestone because of his neck injury. I find that was a decision made to improve his earning capacity, given his family situation. I do find that he has retained the ability to work in a reasonably physical and demanding job, performing fulltime work with overtime. I consider this a good indication that he has maintained a very high level of physical function and is able to push, pull and lift without restriction. I find his pain is only modest. I find that he does not require physiotherapy for it, I find that he does not require prescription medication for it. I find that while he has had difficulty performing some household tasks, he remains able to do all of them. That is consistent with the fact that he does physically-demanding work in his job. Assessing the impairment consequences overall and synthesising the matters set out above, leads to my finding that while the impairment consequences could be said to be more than trivial, they could not be said to rise to the level to be considered ‘more than significant or marked’.[19]
[19]Ibid [60]–[61] (citation omitted).
Thus, the judge refused the applicant’s application to commence a proceeding claiming damages, and found for the respondent.[20]
[20]Ibid [62].

Proposed ground 1: was the applicant denied procedural fairness?

Applicant’s submissions

The applicant submitted that the purpose of his application to adjourn the trial was ‘to present evidence for the purpose of undermining, if not eliminating, the attack upon the applicant’s credit arising from the circumstances in which [Form A and Form B] were prepared’.
The applicant noted that, in dismissing his proceeding, the judge accepted the respondent’s submission that the applicant’s evidence was ‘unreliable and inconsistent, such that on the whole it could not be accepted, save where it was corroborated from independent sources’.[21] The applicant submitted that the ‘pivotal or central basis’ for the trial judge’s finding that his evidence was ‘unreliable, ambiguous and inconsistent’,[22] was ‘the completion of [Form A]’. The applicant contended that the evidence he gave, prior to the adjournment application:
was objectively demonstrably in error, that he had completed this form at home on the kitchen table with the benefit of translation from his wife, and later that he had completed the form at home without the benefit of translation assistance from his wife.
The applicant then asserted:
In fact, objectively assessed in the light of the whole of the evidence, particularly as adduced in re-examination, a compelling inference to be drawn was that both [Form A and Form B] were completed by the applicant at [Sonic] and witnessed by Dr Chin, … at that clinic.
[21]Ibid [2].
[22]Ibid [36]–[38].
The applicant submitted that he lacked fluency in the English language and had given evidence in cross-examination ‘which objectively was nonsense’ in consequence of which he applied to adjourn the trial and call witnesses from [Sonic] ‘relevant to the circumstances in which the applicant came to complete [Form A]’.
The applicant criticised the judge’s reliance upon Aon Risk Services Australia Ltd v Australian National University[23] as a basis for refusing the adjournment application. He submitted that Aon ‘did not stand for the proposition that a trial should not be adjourned for a short period, particularly in the case of an interlocutory application, in order to obtain sworn evidence from relevant witnesses upon a fundamental issue going to the credit of the applicant’. He also submitted that Aon was distinguishable from the present case, this Court having recognised the importance of the credibility of an applicant in cases of the present kind.[24]

Proposed ground 1: analysis

[23](2009) 239 CLR 175 (‘Aon’).

[24]See, eg, Mobilio v Balliotis [1998] 3 VR 833, 836.

The applicant’s submissions cannot be sustained. The judge’s decision to refuse the adjournment application was a decision to which the principles set out in House v The King[25] apply. In our view, far from his Honour making any error of the kind identified in House, the judge’s decision to refuse the adjournment was plainly correct, and did not involve any denial of procedural fairness to the applicant.
[25](1936) 55 CLR 499, 505 (‘House’).
Despite the reference in the applicant’s written submissions to the circumstances surrounding the completion of Form B (apparently, by Dr Chin) the real complaint, as counsel conceded in oral submissions, was in relation to the adducing of evidence relating to the completion of Form A. As we followed counsel’s submission such evidence would have been directed both to where the form was signed by the applicant and his apparent understanding of its contents.
For our part we find it impossible to understand how the calling of Dr Chin, Mr Bui and Ms Hassing would have undermined, much less eliminated, the attack upon the applicant’s credit in relation to his evidence concerning the circumstances in which he filled out Form A.
At the time the adjournment application was made, the applicant had given three versions of those circumstances: first, that he had taken the form home and filled it out with his wife; secondly, that he had completed the form by himself, with his wife only assisting him in relation to one question; and thirdly, that he had completed the form, without any assistance from his wife. Proving that Form A was in fact completed at Sonic would not have gone any way to undermining the attack on the reliability of the applicant’s evidence given before the adjournment application. All it would have done is highlight the fact that, by the conclusion of the trial, the applicant had given three different versions within a very short space of time, and a fourth version a day later — leading to the inevitable conclusion that the applicant’s evidence (at least on this topic) was utterly unreliable.
Moreover, there was no probative material before the judge that any of these witnesses had anything to say that would advance the applicant’s rebuttal of the attack on his credit or detract from the accuracy of the admissions contained in Form A (for example, no note of a conference with a witness; no affidavit supporting the application). Indeed – and conceding a considerable degree of speculation – even if the proposed witnesses had been called and had given evidence that the form was completed at the clinic, it would still have been open to the respondent to submit that the applicant’s evidence on the topic (if not more generally) was unreliable. Similarly, such evidence could not have undermined the judge’s well-reasoned conclusions that the applicant’s evidence on this topic, and on other critical issues, was unreliable.
Thus, the purpose which the adjournment was designed to achieve would not, on any view, have been realised.
Finally, we see no error in the judge’s reliance upon Aon. In so far as the applicant submitted in this Court that the adjournment would only have been for ‘a short period’, we note that in argument before the trial judge, the applicant’s counsel said, ‘We need to get probably (sic) affidavits from personnel at the clinic, and I’m not sure how quickly that can be done’.
In Aon, French CJ, in discussing the consideration relevant to an application to adjourn a trial, said as follows:
In the proper exercise of the primary judge's discretion, the applications for adjournment and amendment were not to be considered solely by reference to whether any prejudice to Aon could be compensated by costs. Both the primary judge and the Court of Appeal should have taken into account that, whatever costs are ordered, there is an irreparable element of unfair prejudice in unnecessarily delaying proceedings. Moreover, the time of the court is a publicly funded resource. Inefficiencies in the use of that resource, arising from the vacation or adjournment of trials, are to be taken into account. So too is the need to maintain public confidence in the judicial system. Given its nature, the circumstances in which it was sought, and the lack of a satisfactory explanation for seeking it, the amendment to ANU's statement of claim should not have been allowed. The discretion of the primary judge miscarried.[26]
[26]Aon (2009) 239 CLR 175, 182 [5].
A little later, his Honour referred to the High Court’s judgment in Sali v SPC Ltd,[27] and said:
[27](1993) 67 ALJR 841; 116 ALR 625.
Sali v SPC Ltd was concerned with a refusal by the Full Court of the Supreme Court of Victoria to grant an application for an adjournment of an appeal. By majority, this Court held that in the exercise of a discretion to refuse or grant an adjournment, the judge of a busy court was entitled to consider ‘the effect of an adjournment on court resources and the competing claims by litigants in other cases awaiting hearing in the court as well as the interests of the parties’. Brennan, Deane and McHugh JJ went on to say:
"What might be perceived as an injustice to a party when considered only in the context of an action between parties may not be so when considered in a context which includes the claims of other litigants and the public interest in achieving the most efficient use of court resources."
Toohey and Gaudron JJ dissented in the result but acknowledged by reference to GSA Industries, that:
"The contemporary approach to court administration has introduced another element into the equation or, more accurately, has put another consideration onto the scales. The view that the conduct of litigation is not merely a matter for the parties but is also one for the court and the need to avoid disruptions in the court's lists with consequent inconvenience to the court and prejudice to the interests of other litigants waiting to be heard are pressing concerns to which a court may have regard."
The observations made in the two joint judgments in Sali were linked to the particular knowledge that a judge or court, called upon to exercise a discretion to adjourn, would have of the state of that court's lists. However, the mischief engendered by unwarranted adjournments and consequent delays in the resolution of civil proceedings goes beyond their particular effects on the court in which those delays occur. In that connection, there have been a number of cases after Sali in which it has been accepted, in the context of Judicature Act Rules, that the public interest in the efficient use of court resources is a relevant consideration in the exercise of discretions to amend or adjourn.[28]
[28]Aon (2009) 239 CLR 175, 190–1 [26]–[27] (footnotes omitted).
Moreover, in the judgment of the plurality[29] the need for the provision of an adequate explanation by a party seeking the favourable exercise of a discretion was emphasised in the following terms:
The fact that an explanation had been offered for the delay in raising the defence was regarded as a relevant consideration in J L Holdings. Generally speaking, where a discretion is sought to be exercised in favour of one party, and to the disadvantage of another, an explanation will be called for. The importance attached by r 21 to the factor of delay will require that, in most cases where it is present, a party should explain it. Not only will they need to show that their application is brought in good faith, but they will also need to bring the circumstances giving rise to the amendment to the court's attention, so that they may be weighed against the effects of any delay and the objectives of the Rules. There can be no doubt that an explanation was required in this case.[30]
[29]Gummow, Hayne, Crennan, Kiefel and Bell JJ.
[30]Aon (2009) 239 CLR 175, 215 [103] (footnote omitted).
Contrary to the applicant’s submissions, each of these considerations was entirely relevant to the disposition of the application. The grounds for an adjournment were weak and there was no adequate explanation (indeed no explanation at all) for the failure to arrange either the attendance of the witnesses or the swearing of an appropriate affidavit. The matters referred to by his Honour went to the heart of the adjournment application.
Further, when one also considers the objectives contained in in the Civil Procedure Act 2010 and, in particular, those set out at ss 9(1)(c), (d), (f) and (g), it would have been surprising if, in the circumstances, his Honour had acceded to the adjournment application.
Thus, contrary to the applicant’s submissions, there was no denial of procedural fairness by the judge in refusing the applicant’s application for an adjournment.

Proposed ground 2: did the judge err in refusing to permit the applicant to call relevant evidence?

For the reasons just given, proposed ground 2 is also devoid of merit. No evidence given by the witnesses the applicant wished to call could have repaired the damage to the applicant’s credit caused by the different versions he gave about the circumstances in which Form A came to be completed.
Further, as we have already mentioned, the likely evidence of any of the proposed witnesses relevant to the completion of Form A was entirely speculative: whether any of the proposed witnesses would have had any recollection of the applicant’s attendance at Sonic on 7 June 2021 – so as to be able to give evidence that they did or did not provide any assistance to the applicant in completing Form A – is highly dubious. However, assuming in the applicant’s favour that one or some of the witnesses could have given evidence that none of the questions on Form A were explained to the applicant by anyone at the clinic, such evidence could only have had limited (if any) relevance to the central issues in dispute which were dependent upon the reliability of the applicant’s evidence on a range of topics.
Additionally, we are unable to see how the applicant’s position could be improved by proving that he completed Form A, without any assistance, at the clinic; as compared to completing it, without any assistance, at his home.

Proposed ground 3: adequacy of the judge’s reasons

In proposed ground 3, the applicant appears to complain about both the Ruling and the reasons. His complaints are:
•in refusing the adjournment, and in deciding the proceeding against the applicant, the judge did not ‘provide an intelligible explanation of the process of reasoning which has led … from the evidence to the findings and from the findings to the ultimate conclusion’; and
•in referring to Aon as a basis for refusing the adjournment, and in weighing up issues of prejudice, the judge failed to demonstrate an adequate path of reasoning where the evidence proposed to be adduced ‘went to the heart of an adverse finding as to the applicant’s credit, which impacted the outcome of the serious injury application to a high degree’.
In refusing the applicant’s application for an adjournment, the judge said that:
•Form A and Form B had been available for the applicant to inspect shortly after 21 July 2021 and they were viewed by the applicant’s solicitor on 23 July 2021;
•it was surprising that the applicant made no mention in his affidavit evidence of his involvement with the three witnesses he wished to call or the circumstances of the completion of the forms, given the centrality of the issue of the applicant’s impairment consequences;
•a brief perusal of the forms showed that they were highly relevant and, as they were in the respondent’s court book, there was no doubt that the applicant would be cross-examined on them;
•notwithstanding the above, no application was made at the start of the trial to vacate the trial date;
•it was only ‘more than half way through cross-examination that the application [was] made to adjourn the trial date to obtain the evidence from the three witnesses’;
•in considering the application to adjourn, ‘justice must be done to both parties’;
•there had been ample time to prepare the case, the issues were narrow in compass, and the suggested evidence could be obtained from the applicant in re-examination and the clinical notes and the forms that were already in evidence;
•the applicant would not be prejudiced if the adjournment was not granted; and
•if the matter were to be adjourned, ‘the matter would have to essentially recommence’ — wasting ‘two days, at least’.
These considerations provided his Honour with an ample basis for refusing the adjournment application. The applicant may disagree with the judge’s reasons for refusing the adjournment. He may wish to cavil with aspects of that reasoning. There is, however, nothing inadequate in his Honour’s reasons. To the contrary, the judge’s reasons are a model of detail and clarity.
Similarly, the judge’s reasons for refusing the applicant leave to commence a common law proceeding disclosed a clear path of reasoning. The applicant’s success or otherwise at trial depended upon his evidence being accepted. The judge identified multiple aspects of the applicant’s evidence which he could not accept, concluding that he was unable to accept those parts of the applicant’s evidence which were not corroborated from independent sources. In the course of identifying the evidence the judge did not accept, his Honour gave detailed reasons for rejecting that evidence. Having determined what evidence could be accepted, the judge then identified, in appropriate detail, the applicant’s impairment consequences, before ultimately concluding that, while they were more than trivial, they did not satisfy the ‘at least very considerable’ test.
In dismissing the applicant’s proceeding, the judge dealt with the substantial points which had been raised by the parties; made findings on material questions of fact; referred to the evidence upon which those findings were based; and provided an intelligible explanation of the process of reasoning that led him from the evidence to the findings and from the findings to the ultimate conclusion. He was required to do no more.[31]
[31]See Hunter v Transport Accident Commission [2005] VSCA 1, [21].
As is the case with His Honour’s ruling on the adjournment application, the applicant may cavil with the judge’s reasoning process and his Honour’s failure to accept the applicant’s case and/or submissions, but that is not a basis for contending that the detailed and clear reasons given by the judge were inadequate. Contrary to the applicant’s submissions, the judge’s reasons for refusing the applicant leave to commence a proceeding for damages are, with respect, of a high standard and leave the reader in no doubt why the applicant failed at trial.

Conclusion

The applicant’s proposed appeal has no prospect of success. Accordingly, the application for leave to appeal must be refused.
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[2022] VSCA 199

16 September 2022