Aquilina v Transport Accident Commission

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S CI 2014 02614

VICTOR AQUILINA	Plaintiff
v
TRANSPORT ACCIDENT COMMISSION	Defendant

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JUDGE:	Zammit J
WHERE HELD:	Melbourne
DATE OF HEARING:	10 March 2015
DATE OF JUDGMENT:	1 April 2015
CASE MAY BE CITED AS:	Aquilina v Transport Accident Commission
MEDIUM NEUTRAL CITATION:	[2015] VSC 117

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ADMINISTRATIVE LAW – Application for leave to appeal from the Victorian Civil and Administrative Tribunal – Questions of law – Review of the Transport Accident Commission’s decision to cease compensation payments – Was the Tribunal’s decision open on the evidence before it – Procedural fairness – Christian Youth Camps Ltd v Cobaw Community Health Services Ltd [2014] VSCA 75 – Transport Accident Act 1986 ss 35 and 74 – Victorian Civil and Administrative Tribunal Act 1997 s 148 – Appeal dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr R Gorton QC Mr J Valiotis	Arnold Thomas & Becker
For the Respondent	Mr P Solomon QC Mr C Young	Transport Accident Commission

HER HONOUR:

Introduction

This is an application for leave to appeal and, if leave is granted, an appeal from the Order of Senior Member Proctor of the Victorian Civil and Administrative Tribunal (‘the Tribunal’) made 30 April 2014 under s 148 of the Victorian Civil and Administrative Tribunal Act 1997 (‘the VCAT Act’).

The proceeding concerns a decision of the Tribunal made under s 74 of the Transport Accident Act 1986 (‘the TA Act’) to affirm the decision of the Transport Accident Commission (‘the TAC’) to cease payments to the applicant, Victor Aquilina (‘the applicant’).

For the reasons that follow, even though I would grant leave to appeal, I do not consider that the Tribunal made errors of law in relation to the submitted questions of law, and the proceeding is dismissed.

Background

On 21 September 2007, the applicant drove his wife to the local shops in St Albans in his 1977 Ford panel van. He parked the van, and returned to it later. At approximately 7:30pm, he got into the van and it burst into flames causing him to suffer burns (incident). What triggered the explosion is a matter of contention.

The fire brigade attended the scene, and put out the fire. No one saw the incident happen apart from the applicant, and no one else was injured.

In October 2007, the applicant filed a claim with the TAC, seeking compensation for the medical expenses associated with the burns suffered. Section 35 of the TA Act provides a right to claim compensation:

Persons entitled to compensation
(1)A person who is injured as a result of a transport accident is entitled to compensation in accordance with this Act…

Section 3 of the TA Act defines ‘transport accident’ as ‘an incident directly caused by the driving of a motor car or motor vehicle’.

Section 3(3)(c) of the TA Act provides:

a reference to an injury or death in or as a result of or resulting from a transport accident, or to a person who is injured or dies in or as a result of a transport accident, is a reference to an injury or death directly caused by the driving of a motor vehicle…

In April 2010, the TAC accepted the applicant’s claim and later paid for his medical treatment.

In October 2013, the TAC determined that the applicant was not entitled to payments in respect of the accident, and gave him notice that no further payments would be made. In making this determination it relied on new evidence, namely a statement of Alex Conway, an investigator with the Melbourne Fire Brigade, dated 19 August 2013, and an email from Detective Senior Constable Josh Coy of Victoria Police dated 30 July 2013.

The TAC considered that the additional information indicated that the incident was not directly caused by the driving of a motor vehicle and, accordingly, that the applicant was not entitled to the TAC compensation.

The TAC’s power to cease payments is contained in s 74 of the TA Act:

Cessation or review of liability to pay compensation in certain circumstances
(1)If the Commission becomes aware that it is making payments of compensation in respect of a transport accident to a person who is not and never has been entitled to payments in respect of that accident, the Commission must give notice to the person to that effect and cease the payments.

On 10 October 2013, the applicant filed an application for review in the Tribunal, seeking review of the TAC’s decision to cease payments. The application was heard on 27 and 28 March 2014.

The dispute concerned whether the applicant was injured in compensable circumstances. He submitted that his van exploded following the turning of the key in the ignition of his vehicle. The applicant further submitted that as he was a driver of a motor vehicle as defined under the TA Act, he was entitled to the payment of reasonable medical and like expenses.

The TAC submitted that the applicant was injured as a result of a deliberately lit fire or, in the alternative, circumstances not entitling the applicant to compensation.

In its reasons for decision,[1] the Tribunal identified the following issues for determination:

(a)Whether it is arguable on the evidence, the applicant was not driving his van at the time he was burnt (if not, his application fails); and
(b)If it is arguable on the evidence, that the applicant was driving, whether I should find:
i. he was injured by an explosion following him inserting the ignition key in his van; or
ii. he was not injured by such an explosion.[2]

[1]Aquilina v TAC [2014] VCAT 498 (30 April 2014) (Reasons).

[2]Reasons, [7].

On 30 April 2014, the Tribunal affirmed the decision of the TAC to cease payments to the applicant.

By originating motion filed 28 May 2014, the applicant seeks to appeal the decision of the Tribunal to this Court.

Proposed grounds of appeal

The applicant’s proposed notice of appeal dated 28 May 2014, identifies several grounds of appeal and questions of law. On the morning of the appeal it was not entirely clear which findings the applicant took issue with. The grounds of appeal do not clearly link to the questions of law. It is convenient, given the oral submissions, to focus on the questions of law.

The applicant’s grounds of appeal, as set out in the proposed notice of appeal, are as follows:

A.The learned Senior Member erred in refusing the application for review on the basis that the fire did not start as stated by the Appellant.
B.Having accepted that the Appellant was driving his van in accordance with the Transport Accident Act 1986 (‘The Act’) when he was injured the learned Senior Member erred in his conclusion that the Appellant was not ever entitled to payments in respect of the accident.
C.The learned Senior Member erred in failing to review and set aside the Respondent’s decision that the Appellant was not injured in compensable circumstances, and to then remit the matter to the Respondent for further consideration and assessment.
D.The decision of the learned Senior Member to affirm the Respondent’s decision was plainly wrong;
E.The learned Senior Member erred by failing to provide an adequate path of reasoning as to why the Appellant was not entitled to compensation having found that he was driving his motor vehicle when it caught on fire and he was burnt and injured.
F.The learned Senior Member erred by admitting the evidence of witness Mr Alex Conway when the evidence could not be supported other than by Mr Conway’s memory and external photographs of the vehicle taken by the property damage insurer.[3]

[3]Proposed Notice of Appeal (28 May 2014) p 2–3.

At trial, the applicant sought leave to amend its first question of law, and this was consented to by the TAC. This change is reflected below:

A.Whether, on the ~~facts~~ evidence as found by the Tribunal, it can be properly decided that the Appellant’s injuries:
(i)were not as a result of a transport accident for the purposes of s 35 of the Transport Accident Act 1986 (‘the Act’);
(ii)were not directly caused by the driving of a motor vehicle as required by s 3 and s 3(3)(c) of the Act.
(iii)entitled the Appellant to payment of compensation, with the Tribunal erring in its application of s 74(1) of the Act by affirming the Respondent’s decision to cease liability to pay compensation.

B.The Tribunal erred in law if it concluded that the Appellant’s injury could be the result of a transport accident as defined, only if his use of the ignition key caused an explosion.
C.The Appellant was denied procedural fairness on the following grounds:
·The evidence of Mr Alex Conway should not have been admitted as Expert Evidence in accordance with the VCAT Practice Note PNVCAT2 (effective 1 October 2014);
·In the alternative, if the evidence of Mr Alex Conway was admitted, little to no weight should have been accorded to his evidence;
·Given the effluxion of time, the acceptance of his property damage claim by the motor vehicle insurer, the destruction of his motor vehicle and sale to scrap metal and the subsequent acceptance of his compensation claim by the Transport Accident Commission, the Appellant could not reasonably foresee or anticipate that he would require an expert opinion in order to assist with his application.

The applicant seeks orders that:

(a) the Order of the Tribunal be set aside;

(b) the application for review be granted; and

(c) the TAC pay the applicant’s costs of the Tribunal hearing, and this application.

Principles relevant to leave to appeal from the Tribunal

The approach to the question of whether leave to appeal should be granted under s 148(1) of the VCAT Act was set out comprehensively in Secretary to the Department of Premier and Cabinet v Hulls.[4] That approach was conveniently summarised by Warren CJ in Myers v Medical Practitioners’ Board of Victoria[5] as follows:
[4][1999] 3 VR 331 (‘Hulls’).
[5](2007) 18 VR 48 (‘Myers’).

·whether leave is granted or not must always depend upon the justice of the particular case;
·if leave is to be granted, the applicant must at least identify a question of law (as distinct from a question of fact) which is important to the substantive appeal’s succeeding or failing;
·the applicant need not establish an error below — that is for the appeal itself. Rather, the applicant will be required to show that there is a real or significant argument to be put that error exists;
·although not essential, the applicant may identify a question of law that is of general or public importance. This will weigh in favour of granting leave;
·once a question of law has been identified which bears directly upon the relief which will be sought in the appeal, and once it has been shown that there is sufficient doubt attending that question to justify the grant of leave to appeal, leave will ordinarily be granted if the order below is a final order or final in its effect; and
·where the order sought to be appealed is an interim order, there may be reasons bearing on the justice done to both parties for not granting leave to appeal, for example, where granting leave to appeal will result in an unnecessary interruption to the substantive proceedings.[6]

[6]Myers 55–56.

In this case, the TAC concedes that questions of law have been identified but submits that the Tribunal’s decision is not affected by any real or significant error.[7]
[7]TAC’s Outline of Submissions dated 23 December 2014 [12] (‘TAC Submissions’).

In Sisters Wind Farm Pty Ltd v Moyne Shire Council,[8] Emerton J concisely described the Tribunal’s task as follows:

It is trite law that in exercising its review jurisdiction, the Tribunal does not review the propriety or legality of the decision made by the initial decision-maker. Its task is to ‘stand in the shoes’ of the original decision-maker and make the correct or preferable decision, having regard to the material before it. The review therefore takes place without any presumption as to the correctness of the decision under review. It is carried out on the basis of the facts and the law at the time the review decision is made.[9]
[8][2012] VSC 324.
[9]Ibid [40] [citations omitted].

Question of law A: Was the Tribunal’s decision open on the evidence before it?

The applicant submits that it was not open for the Tribunal to affirm the TAC’s decision on the evidence before it.

It is well established that whether a particular decision is open to a decision-maker on available evidence is a question of law. In S v Crimes Compensation Tribunal,[10] Phillips JA stated:

The determination of that question of fact may depend upon the acceptance or rejection of evidence that is led; it may depend upon a choice between witnesses, and an assessment of their credibility or reliability; or it may depend more directly upon the sufficiency or insufficiency of the evidence that is given. All these things are committed to the tribunal, and not to the court; and although I speak of evidence, the same is true where the tribunal is authorised to obtain information otherwise than from witnesses on oath or to act upon its own expertise. Essentially, the question whether the particular circumstances of the claimant are such as to bring his or her case within the statutory description is a question of fact, not law ... Nevertheless, if in determining whether the particular circumstances of the claimant are such as to fall within a relevant statutory description, the fact finding tribunal arrives at a conclusion which was simply not open to it, that is an error of law...[11]

[10][1998] 1 VR 83 (‘S v Crimes Compensation Tribunal’).

[11]S v Crimes Compensation Tribunal, 89–90.

On this basis, the applicant makes two submissions:

(a) The Tribunal affirmed the decision of the TAC to cease payments to the applicant on the ground that he was not entitled to them. In order to find that the applicant was not entitled to the payments, the Tribunal must satisfy itself that the applicant’s injuries were not caused by ‘an incident directly caused by the driving of a motor car’. On the evidence before the Tribunal, it positively found that the applicant was driving his van, and therefore, the decision to affirm the decision of the TAC was not open to it; and

(b) The Tribunal concluded that that the applicant was not injured by an explosion following him inserting the key into the ignition of his van. It made this finding based solely on the evidence of Mr Conway. Mr Conway did not have the relevant expertise to give his opinion, and therefore his evidence should not have been admitted. As this evidence ought not have been admitted, it was not open to the Tribunal to make the findings it did on Mr Conway’s evidence.

Was the applicant driving?

The Tribunal determined the issue of whether or not the applicant was ‘driving’ his van under the heading: ‘Is it arguable Mr Aquilina was driving his car? — Yes’.

It considered the statement of Kaye J in Koutroulis v Transport Accident Commission[12] to determine whether or not the applicant was ‘driving’ his van. It also considered four pieces of evidence which described the incident: two statements of the applicant; a police patrol duty sheet; and an insurer’s damage assessment report. Importantly, it noted that the accounts were not consistent. The inconsistency lay in whether the applicant inserted the key into the ignition or not.
[12][2011] VSC 159 [35] (‘Koutroulis’).

The Tribunal concluded:

With about six and a half years having passed since the accident, if I were to accept either of Mr Aquilina’s versions of events, I would prefer his contemporaneous 2007 recollection, to his variable recollection at hearing.
In my view, opening the car door, being in movement to sit in the seat and in doing so, starting the ignition is, in Kaye J’s words, a step (here literally into the car) sufficiently closely connected with the driving of the vehicle in a functional sense to constitute ‘driving’ under the TA Act.
Had I decided otherwise after considering his evidence, I would have affirmed TAC’s decision without addressing other issues. Having decided that if I were to accept Mr Aquilina’s 2007 evidence I would accept he was driving, I turn to the other issue.[13]

[13]Reasons [20]–[22].

The applicant submits that:

The Tribunal effectively answered the first question [at paragraph 7(a) of the Reasons] in the affirmative. In doing so it at least accepted the real possibility that the Appellant did not start the fire at the rear of his van and did not find the Appellant to be dishonest.[14]

[14]Appellant’s Outline of Submission dated 5 September 2014 [8].

This argument was also put by senior counsel for the applicant in oral argument:

It could only be arguable that he was driving his van if you accept — if it was accepted that Mr Aquilina had got into the van and put the key in the ignition as part of the preparation for putting the vehicle into motion.
Unless that was an accepted fact, Mr Aquilina could not have been driving at the time of the accident. So that while there was not an absolute finding of fact that he was driving, the acceptance that it was arguable that he was driving means it's open on the evidence of Mr Aquilina to at least accept he was doing what he said he was doing. The tribunal member did not reject his evidence as to the circumstances in which the injury was suffered, it having been in our submission at least undecided and probably decided in Mr Aquilina's favour that he was driving at the time he was burnt.[15]

[15]Transcript of Proceedings, Victor Aquilina v Transport Accident Commission (Supreme Court of Victoria, S CI 2014 2614, Zammit J, 10 March 2014) 5–6 (‘Transcript’).

The TAC argues that the Tribunal made no such finding of fact, and reached no final decision about whether the applicant was ‘driving’ his van. The applicant is said to have misstated the issue decided by the Tribunal, and how it was resolved.

Senior counsel for the TAC put it this way:

Both in written submissions and oral contentions this morning, it's been suggested to Your Honour that the Tribunal made a finding that Mr Aquilina was driving his motor vehicle. That's an unsatisfactory submission. It's not what the Tribunal did. It's not what the Tribunal appeared to do. It's not responding to what the Tribunal in fact was asked to do, and Your Honour should put it to one side and turn to the real issue, which begins at paragraph 23 [of the Reasons which discusses whether the applicant was injured by an explosion].[16]

[16]Transcript, 38.

The TAC submits that the Tribunal proceeded on the basis of assumed facts, and whether those facts were capable of constituting ‘driving’ based on the test in Koutroulis. In other words, all that the Tribunal decided was that if it were to accept the applicant’s evidence, then those facts were capable of constituting ‘driving’. On the basis of those findings of fact, the Tribunal’s decision was open to it.

As outlined at paragraph 32, the Tribunal preferred the applicant’s contemporaneous 2007 recollection of what happened over the other versions he gave at different times. There is some ambiguity in the Reasons in relation to whether there was an actual finding that the applicant was driving or whether it was ’arguable’ that the applicant was driving.

The Tribunal’s Reasons stated:

(a) is it arguable that Mr Aquilina was driving the car? Yes;

(b) the applicant’s evidence that he opened the car door, was moving to sit in the seat and started the ignition, were a ‘step sufficiently connected with the driving of the vehicle in a functional sense to constitute driving under the TA Act.’;[17]

(c) the Tribunal accepted that had it decided the applicant was not driving it would have affirmed the TAC’s decision without addressing other issues, ’Having decided that if I were to accept Mr Aquilina’s 2007 evidence, I would accept he was driving I turn to the other issues’;[18] and

(d) the Tribunal concluded at paragraph 64 of the Reasons that it did not accept the applicant’s evidence that as he started the ignition an explosion occurred in front of him causing his injuries.

[17]Reasons, [21].

[18]Reasons [22].

In accepting that it was arguable that the applicant was driving, the Tribunal still had to make a finding in relation to whether the applicant’s injuries resulted from a transport accident or whether the injuries were directly caused by the driving of the vehicle. Was it open on the evidence before the Tribunal to find that the applicant’s injuries were caused by a transport accident or were not directly caused by the driving of the vehicle? The Tribunal’s conclusion that the applicant was ‘driving’ does not of itself address the issue of causation. The Tribunal did not make a finding that there was an explosion caused by the placing of the key in the ignition, which caused the applicant’s injuries.

I do not accept the applicant’s submissions that in accepting that the applicant was driving, the Tribunal accepted the real possibility that the applicant did not start the fire at the rear of the van. It is regrettable that the Reasons use language such ‘it is arguable’. If the applicant was not driving, then his claim fails. However, a finding that he was ‘driving’ does not necessarily end the Tribunal’s inquiry. In this case the Tribunal still had to determine the cause of the applicant’s injuries. While the Tribunal’s Reasons lack precision on the question of driving, the TAC’s decision to cease payments was affirmed by reason of the Tribunal’s findings of fact in relation to causation. The ambiguity in relation to driving was ultimately cast in the applicant’s favour by the Tribunal.

Mr Conway’s evidence

The Tribunal determined the issue of whether the applicant was injured following an explosion under the heading: ‘Was Mr Aquilina injured by an explosion following him inserting the ignition key in his van? – No’. Was it open on the evidence before the Tribunal to conclude that the applicant was not injured following an explosion?

The Tribunal relied on the oral and written evidence of Mr Conway, a Metropolitan Fire Brigade Fire Investigator. Mr Conway gave evidence that the fire had started at the back of the van near the rear doors, had spread to burn the passenger/driver seat area and the steering wheel. His evidence was that the fire did not start in the engine, or at/under the dashboard, and that there was no indication in the structure of the van of an explosion having taken place.

Mr Conway stated that, in his view, some form of accelerant was placed in the back left-hand side of the van and was ignited by ‘persons unknown’.

He relied on burn patterns on the van and internal damage as he recalled it, supplemented by photographs.

The Tribunal purported to resolve the case by the finding that there was not an explosion when the applicant put his key in the ignition and that there had been no explosion at all. It accepted the evidence that the fire had started in the van with the burning of an accelerant by a person or persons unknown. The applicant submitted that the Tribunal erred in law by asking itself the wrong question, taking into account irrelevant considerations, having resolved the first question that the applicant was in fact driving the van when he suffered injury.

The applicant submits that:

(a) he was injured when he put the key into the ignition which was followed by an explosion;

(b) there was no evidence to suggest that he lit any fire that started at the rear of the van and then spread to the driver’s seat area. There was no basis for suggesting a motive for the applicant to have burned his van. The circumstances of the evening make arson by the applicant a highly implausible explanation for the fire starting;

(c) that the applicant could be mistaken as to the source of a fire which suddenly overwhelmed him just after commencing the driving of his vehicle upon turning the ignition key. The applicant was aged 71 at the time and at the time of the Tribunal hearing was aged 78;

(d) the entitlement of the applicant to compensation for his burns depends upon the incident of the fire engulfing him and burning him when he had commenced driving;

(e) the evidence only points to the fire commencing and flaring suddenly and violently, contemporaneously with the applicant entering his vehicle and contacting the ignition. The applicant gave evidence of hearing a click just before he was burned. There is no basis for any observer or the Tribunal reaching a stage of satisfaction that the flaring of the fire was not an incident directly caused by the driving actions of the applicant. The necessary step of commencing the driving by starting the motor vehicle was achieved and the Tribunal was satisfied of this fact by accepting that the commencement of driving had in fact occurred;[19]
[19]Reasons [22].

(f) the burns to the applicant’s face and hands and not elsewhere are reasonably explicable by the wool covered bench seat and the jacket the applicant was wearing protecting his body. There is no evidence as to the presence or absence of any headwear being worn by the applicant. The interior of the van and the driver’s ‘compartment’ was clearly destroyed by the fire. A reasonable hypothesis that the fire suddenly began and flared over the whole of the van cabin, accompanied by noise, a ‘vroom’, causing the applicant’s burns could not be displaced by any other hypothesis;

(g) unless the applicant was found to be dishonest, which he was not despite contention to that effect by the TAC, it was not open to the Tribunal to be positively satisfied that the applicant was injured otherwise than as a result of an incident arising directly from the applicant’s driving;

(h) the opinion that the fire was caused by an unknown person was only raised for the first time at the hearing by Mr Conway and was subsequently adopted by the learned Senior Member. To make this finding having found that the applicant was driving his vehicle was not open to the Tribunal; and

(i) Mr Conway did not have the required specialist expertise, and even if he did have it, he didn’t have established assumed facts to apply his expertise to. The applicant submits the following points in relation to Mr Conway’s evidence:

(i) it went no further than a suspicion of an accelerant in the ‘internal and rear’ of the panel van area. It was not expert evidence;

(ii) he carried out no investigation to confirm or discount his suspicion. He did not see any liquid containers in the van when he examined it;

(iii) his evidence was first recorded in a statement made by him in August 2013 — which did not accord with the VCAT Practice Note relating to expert evidence;

(iv) the TAC was aware in 2007 of the suspicion held about the fire. The claim was investigated, the insurance file was obtained and the claim was accepted. In July 2013 there was ‘pressure from above to fix this claim ASAP and stop paying out any more money than necessary.’ The statement by Mr Conway was obtained in apparent furtherance of that aim;

(v) it should not have been heard and relied on by the Tribunal. To the extent that it was expert evidence, it was not prepared in a manner which conformed with the Tribunal Practice Note or the requirements of the Evidence Act. His evidence as to the possible/probable cause of the fire is opinion evidence.[20] He did not have clearly identified facts upon which to base his opinion either as set out in his report or in his oral evidence;
[20]Matthews v SPI Electricity and Ors [2012] VSC 340 [41].

(vi) it was based on unverified suspicion and was prejudicial to the applicant’s case and was not capable of being properly challenged or verified by another expert who could properly opine as to the cause of the fire. The van was not available for inspection. There was no 2007 record of Mr Conway’s observations and his evidence based on recollection was objectively wrong in several identifiable aspects (model of vehicle, seat configuration, extent of damage to driving area) from a witness not required to express his observations was important in the Tribunal decision;

(vii) ‘there was no evidence independently of anything he said as to what had happened to the windows or the doors of the vehicle, save perhaps from any evidence that might be extracted from the photographs that were put before him’;[21]
[21]Transcript, 9.

(viii) ‘no fairness would allow a tribunal to make a decision based on evidence that was not properly established as expert evidence.’[22] Mr Conway’s evidence was not admissible as it is not expert evidence because he does not have the required specialist knowledge; and

(ix) Mr Conway’s opinion was based on unproved facts/evidence.[23]

[22]Ibid, 10.

[23]Transcript, 15.

The TAC submits that applicant is wrong to assert that the evidence only points to the fire commencing and flaring suddenly and violently contemporaneously with the applicant entering his vehicle and contacting the ignition. That proposition assumes that Mr Conway’s evidence was not admitted or was rejected and the applicant’s evidence was wholly accepted.[24]
[24]Respondent’s Outline of Submissions dated 23 December 2014 [29].

The TAC argues that the Tribunal rejected all of the applicant’s evidence, and expressly accepted all of Mr Conway’s evidence. This evidence was properly admitted by the Tribunal, and it was open for it to have regard to the evidence.

The TAC submits that the controversy about the explosion and if it occurred, involved a question of causation, which is essentially a question of fact. The TAC submits that the Tribunal did not find, nor was it necessary to find , that it was the applicant who started the fire.[25] The Tribunal’s finding was that persons unknown started the fire.[26] The TAC submits that the applicant’s attempt, on appeal to formulate a ’reasonable hypothesis’ for the fire is an impermissible attempt to supplant the Tribunal’s finding that persons unknown started the fire.[27]
[25]Appellant’s Outline of Submission dated 5 September 2014 [10].
[26]Reasons [60].
[27]Appellant’s Outline of Submission dated 5 September 2014 [15].

Decision

The Tribunal examined Mr Conway’s evidence at length:

Mr Conway’s two page statement says in part:
I recall in 2007 I attended a vehicle with the station officer and full time fire investigator Rod East. I … recall … may have been at a panel beaters … towed there from the accident scene. I recall the vehicle was a white XF Ford Falcon panel van which appeared to be in a poor condition. When I looked at the vehicle, it had extensive fire damage to the internal rear of the panel van and passenger area which are joined. I recall examining the fuel tank which is at the base of the vehicle. The burn patterns did not indicate that it had come from the fuel area of the vehicle. They did indicate that an accelerant had been used in the internal and rear of the panel van area. The under bonnet engine area was untouched by the fire. I deemed the fire to be suspicious in nature and contacted Police to attend the scene and handed the investigation over to the attending local police unit. In my role I am not authorised to undertake the investigation of suspicious fires, this is the role of the police force. No report was generated as this is not our legislative role.

The background to him being asked to first investigate a car is relevant. He is not normally called to a fire unless a senior fire brigade officer regards it as suspicious. That was the case here. He saw the van in a yard the day after the fire, where it had been towed.
His evidence was a combination of actual recall of the inspection with an element of relying on what he would usually do in such an inspection. He was provided with photographs of the car shortly before the hearing, which he saw for the first time. He said this assisted his recollection and his thinking about the issue as he prepared to give evidence.
Mr Conway had not kept notes from the inspection nor prepared a contemporaneous report. His role in 2007 was to consider whether he regarded the fire as suspicious. If he did, he was obliged to inform Victoria Police who may investigate. Only where he does not regard the fire as suspicious is he required to produce a written report. His 2013 two-page letter on the issue was produced at the request of the company G4S, the other investigator commissioned by TAC.
Relying principally on burn patterns on the car and internal damage as he recalled it, supplemented by the photographs, Mr Conway’s strong opinion was the fire started in the left rear of the van and advanced towards the front. He said the burn patterns reflect the heat applied to an area. Here the greatest heat would have been applied where the fire started, causing the most extreme burn pattern, present in the body surrounding the floor of the left rear of the van. In his view, when the fire reached the passenger area it did most damage on the left-hand side. The fire intruded only to a minor extent through the firewall between the passenger area and the engine, through holes which air conditioning tubes run. The engine compartment was not significantly impacted. There had not been an engine fire. Hoses and wires remained intact. The petrol tank was not involved in the fire and there was no evidence of petrol leakage. The petrol tank is located behind the seats. If there had been a leak the fire would have burnt back to the source of the leak. In his view, the car ignition was not the source of the fire. While the driver area was extensively damaged, it was not as damaged as the left-hand side. If the starting of the fire related to the car ignition, he would have expected more damage in the engine bay.
Given there was apparently nothing to burn in the back of the van at the time of the fire (Mr Aquilina’s evidence), in Mr Conway’s opinion some form of accelerant was placed in the left-hand back of the van and ignited by ‘persons unknown’.
On the issue of the possibility of a fire starting when Mr Aquilina turned the ignition key of the van, Mr Conway agreed fires can start in the location of the ignition given relatively high voltage wires that run to the ignition. However, his evidence was this gives rise to a slow starting fire rather than any form of explosion. He had never seen evidence of a car ignition causing an explosion.
On the issue of whether an explosion occurred, Mr Conway said he had seen many examples of damage caused by vapour explosion. Here, he noted there was no evidence that the front windscreen of the van popped, which he would have expected had there been any significant explosion.
When under cross-examination asked to comment on an entry in fire brigade documentation relating to the call out to attend the burning van which said, ‘Area of origin: 83 engine area, running gear, wheel area of transportation equipment’, Mr Conway commented this text comes from a limited drop-down menu in the computer software. He also noted the documentation also recorded ‘form of the ignition undetermined’, ‘ignition factor undetermined’, ‘type of material undetermined’, ‘equipment involved in ignition undetermined’. He also noted that on the day fire, it was regarded as suspicious and he was called.
Concerning Mr Aquilina’s car, Mr Conway first said it was an XF Falcon panel van manufactured in approximately 1977. It was in poor condition with a dirty oily engine. Under cross-examination, Mr Conway agreed his recollection was faulty in that he incorrectly recalled the make, model and year of the van and that it contained bucket seats with central column shift. The van contained a bench seat with a column shift.[28]

[28]Reasons [36]–[45].

The Tribunal considered other evidence in relation to the applicant’s injuries, including: 000 calls;[29] medical records;[30] investigator’s reports;[31] and importantly the applicant’s evidence.
[29]Ibid [46].
[30]Ibid [47]–[49].
[31]Ibid [50]–[51].

The Tribunal said in relation to the applicant’s evidence:

I have described Mr Aquilina’s evidence about events up to and including his description of an explosion.
Giving oral evidence at the hearing, Mr Aquilina spoke of his next recollection after the explosion was him being under a torrent of water as fire services officers provided immediate treatment for his burns. He was taken to Western Hospital.
Mr Aquilina vehemently denied the fire started toward the rear of the van and that he started it. His says his injuries to his hands and face came from the front, not the rear. He asked why any person would want to burn his own car to collect a couple of thousand dollars in insurance. He confirmed he always insured the car.
He suggested that gas or some other flammable substance may have leaked from one of the refrigerators or fuel cans he usually carried in the back of his van for his work, although he said on the evening in question there was nothing in the back of the van.
On the issue of the scene of the fire, Mr Aquilina was adamant it had occurred quite some distance from where he dropped his wife. With the help of a map, he identified an area half way between St Albans Railway Station and Keilor Plains Railway Station. This is quite some distance from Elaine Street, where G4S said the van caught fire and from East Esplanade where 000 callers placed it.[32]

[32]Reasons [53]–[57].

In making his finding the Senior Member was cognisant of the seriousness of the TAC’s allegations and in doing so, referred to the decision of Re Golem v Transport Accident Commission.[33]
[33]Ibid [59]; Re Golem v Transport Accident Commission (No 1) (2002) 19 VAR 265.

The Tribunal concluded:

I find, on the balance of probabilities, the fire which destroyed Mr Aquilina’s van started in the back left-hand corner of the van with the burning of some form of accelerant by a person or persons unknown. I accept Mr Conway’s evidence on this issue. His opinion is based on physical evidence and his expertise. It has strong probative value.
I also accept Mr Conway’s evidence that, while a car fire can start at the ignition, it does not start with an explosion and that there is no indication in the structure of the van of an explosion having taken place.
In my view, Mr Conway’s errors in recalling attributes of the van make, model and seat arrangement do not detract from the basis of his opinion, which does not depend on those issues. His errors are understandable given the passage of time.
In the context of Mr Conway’s evidence, I do not accept Mr Aquilina’s evidence that as he started the ignition, an explosion occurred in front of him causing his injuries.
Mr Aquilina does not claim to be, and is not, an expert concerning causes of fire. Therefore, his opinion about some form of gas escaping from equipment previously but no longer in the car and being the source of the explosion is not admissible in this proceeding. In any case, it is contradicted by Mr Conway’s expert opinion.
I have not had regard to opinions of others either agreeing or disagreeing with Mr Aquilina’s position. I described them for completeness.
Finally, I have considered the evidence in the context of the night in question; particularly whether the circumstances should lead me to reject Mr Conway’s opinion as improbable, on the basis it appeared unlikely Mr Aquilina would drop his wife off at the shops on a Friday night, park the van and then someone would set fire to it using accelerant.

Given my view that Mr Conway’s opinion has strong probative value, I do not reject his opinion on that basis.[34]

[34]Reasons [60]–[68].

Having had regard to the relevant sections of the TA Act at paragraphs 9 to 12 of the Reasons, the Tribunal concluded that the applicant’s injuries were not as a result of ‘transport accident’ for the purposes of s 35 of the TA Act and the injuries were not directly caused by the driving of the vehicle as required by ss 3 and 3(3)(c) of the TA Act.

I consider the controversy facing the Tribunal in relation to question of law A, involved a question of causation, which is a question of fact. The Tribunal accepted Mr Conway’s evidence about the location of the fire and that it was not caused by starting the ignition. On the basis of those findings of fact, the Tribunal’s decision was open to it.

The Tribunal accepted Mr Conway’s evidence and in doing so rejected the applicant’s evidence on the question of the how the fire started and whether it was started by an explosion as asserted by the applicant. This finding is not inconsistent with the Tribunal’s finding that the applicant was driving. The Tribunal said that it did not accept the applicant’s evidence that ‘as he started the ignition, an explosion occurred the front of him causing his injuries’.[35] What is not accepted is that an explosion occurred. There is no statement that the Tribunal did not accept that the applicant started the ignition. The Tribunal expressly preferred and accepted Mr Conway’s expert evidence, noting its ’strong probative value.’[36]
[35]Ibid [64].
[36]Ibid [60]–[62].

In order to determine whether the applicant’s injuries were the result of a ‘transport accident’ pursuant to s 35 of the TA Act or were directly caused by the driving of a motor vehicle pursuant to s 3 and s 3(3)(c) of the TA Act, the Tribunal had to make a factual finding in relation to driving and then causation, in the context of two competing explanations:

(a) the applicant’s version of events that an explosion occurred after the ignition was started; and

(b) the TAC’s version of events based on Mr Conway’s evidence.

What the applicant now seeks to do in question of law A (i), (ii) and (iii), is attack the Tribunal’s findings of fact. I consider it was open to the Tribunal to accept the applicant was driving the van but that his injuries were not directly caused by the explosion.

Whether there was no evidence to support a factual finding is a question of law.[37] To establish an error of law it is necessary to show that the findings of fact made by Tribunal were not open on the evidence, or were unreasonable or perverse.[38] A finding of fact, such as the Tribunal’s finding on causation in this case, cannot be impugned if there was some or other probative information supporting it. Importantly the decision cannot be impugned simply because this Court considers the finding was erroneous or against the weight of the evidence.[39] The applicant is critical of the Tribunal’s ultimate conclusion but I consider it was open to be made on Mr Conway’s evidence.
[37]Kosta v HIA Insurance Services Pty Ltd (2010) 241 CLR 390, 418.
[38]Catch the Fire Ministries Inc v Islamic Council of Victoria Inc (2006) 15 VR 207, 261.
[39]Director of Liquor Licensing v Kordister [2011] VSC 207 [248].

I consider that the applicant’s real complaint now is an impermissible complaint about the evidence and the facts.[40] I do not consider the decision is attended with any real or significant error.
[40]Hoe v Manningham CC [2011] VSC 37 [21].

Question of law B: Alternative causes of an explosion

The applicant submits that the Tribunal erred in law when it concluded that the applicant’s injuries could only be the result of a ‘transport accident’ if inserting the key in the ignition caused the explosion.

The question posed is a question of causation, and as stated by Kaye J in Spiteri v Roccisano, ‘[t]he question of causation is essentially a question of fact.’[41]
[41](2009) 22 VR 596, 622.

As noted by Callaway JA in Transport Accident Commission v O’Reilly,[42] a question of law is not involved in a decision simply because a tribunal makes one or more findings of fact that are not supported by evidence, nor is it sufficient that the reasoning whereby a conclusion of fact is reached is demonstrably unsound.[43]
[42][1992] 2 VR 436.
[43]Ibid 460.

Attempts to convert questions of fact into questions of law have not been welcomed in this Court. As Phillips J said in Nikolic v Schultz:[44]

Finally, I simply observe that while an appeal now lies from the Magistrates’ Court to this Court … , such an appeal lies only on a question of law, and this seems to me to be a case in which the appellant has laboured to convert what was essentially a question of fact into a question of law. Such attempts have not gone unnoticed by the courts which have tended to deprecate the practice of ‘attempting to magnify or inflate questions of fact into questions of law and trying to obtain decisions from the courts on matters which the legislature would appear to have thought suitable for decision by’ some other body.

[44](Unreported, Supreme Court of Victoria, 22 October 1991).

For the reasons I have set out in relation to question of law A, I do not consider the Tribunal erred in finding that the applicant was ’driving‘ but then concluding that his injuries did not arise out of a transport accident. The question of law omits the need to show a causal connection between the act of driving and the fire, and reduces it to a mere temporal relationship.

The Tribunal did not conclude that the applicant’s injury was only compensable if his use of the ignition key caused the explosion. What it decided was that the fire was caused by the ignition of the accelerant in the rear of the vehicle. That finding necessarily operated to deny any causal connection between the applicant’s injuries and a ‘transport accident’.

In oral argument, senior counsel for the applicant stated:

…so the remaining question, is the Tribunal erred in law if it concluded that the appellant’s injury could be the result of a transport accident as defined only if his use of the ignition key caused an explosion.
As phrased that isn't a fair representation of what occurred below, what occurred below is that there were two diametrically opposed cases, 1) that the ignition was turned and there was an explosion in front, alternatively 2) that there was accelerant in the rear and the fire started in the rear and on that quintessentially factual issue, the tribunal with cogent and clear reasons which in the circumstances are entirely satisfactory and adequate quite clear determine that the fire started in the rear of the vehicle by use of an accelerant. When Your Honour reads the transcript and reflects on the cases as presented proposed question of law, B, doesn't address the relevant controversy, it doesn't inform itself by what occurred below and in the circumstances none of the question of law proposed are made good. That being so, the application for leave to appeal should be refused, if Your Honour pleases.[45]

[45]Transcript, 43-44.

The question of ignition is a ‘quintessentially factual issue,’ and it is a matter for the Tribunal to determine what evidence it admits and what findings it makes on questions of fact. As said by the Court of Appeal in ISPT Pty Ltd v Melbourne City Council:[46]

It was for the applicant to persuade the Tribunal of the reliability of [its expert’s] evidence and it did not. The Tribunal gave rational reasons for rejecting the evidence and it is not open on this appeal to re-open a judgment which went essentially to questions of weight and persuasiveness.[47]

[46](2008) 20 VR 447.

[47]Ibid 471 [100].

It follows from what I said that question of law B is not made out.

Question of law C — Procedural fairness

The applicant submits he was denied procedural fairness.

In Luck v Renton,[48] Maxwell P and Harper AJA commented:

The question whether the rules of natural justice were breached is, of course, a question of law on which an appeal from the Tribunal [under s 148 of the VCAT Act] can (subject to a grant of leave) properly be brought.[49]

[48][2005] VSCA 210.

[49]Ibid [17].

The lack of procedural fairness is said to stem from the fact that:

(a) Mr Conway’s evidence was admitted despite it not being in accordance with the Tribunal’s expert evidence Practice Note (PNVCAT2);

(b) once admitted, little to no weight ought to be given to Mr Conway’s evidence; and

(c) the applicant was not given opportunity to retain an fire investigation expert of his own.

During the hearing before the Tribunal, counsel for the applicant submitted that the Tribunal ought not consider Mr Conway’s evidence because:

(a) it fell well short of the requirements of an expert witness statement, as set out in the Practice Note. That is because Mr Conway does not:

(x) adequately describe his qualifications and experience as an expert;

(xi) declare his awareness that he is required to give impartial evidence to assist the Tribunal; and

(xii) in sufficient detail describe how he employed expertise to arrive at his opinion;

(b) it does not meet the requirements for such evidence as described in ss 76 and 79 of the Evidence Act 2008 (‘Evidence Act’). In summary (drawing from s 79 of the Evidence Act), the applicant submits that the written statement was not, on its face, from a person with specialised knowledge based on the person's training, study or experience and not evidence of that person’s opinion, wholly or substantially based on that knowledge; and

(c) its probative value was substantially outweighed by it prejudicial effect, and therefore should not be permitted under s 135 of the Evidence Act. The prejudice was said to arise because:

(i) the incident occurred over six and a half years ago and impacts the applicant and Mr Conway’s abilities to recall the events;

(ii) the applicant is unable to have the van assessed by an expert, the wreck being sold in 2007;

(iii) the TAC decided to accept liability, as they did in 2010 on the basis of information no different from that available today; and

(iv) the applicant is effectively accused of committing a crime in circumstances where no charges were laid by Victoria Police in 2007, an insurer paid $2,400, and the TAC has not bought charges under ss 116 or 117 of the TA Act.

The Tribunal rejected counsel’s submission, and admitted the written and oral evidence of Mr Conway:

Mr Valiotis is correct that Mr Conway’s written statement falls well short of the requirements of the Practice Note. It is concerning TAC did not arrange for the preparation of an appropriate witness statement by him. In some circumstances, that could give rise to a breach of natural justice leading to evidence not being admitted.
However, non-compliance with the Practice Note should not prevent a party putting the substance of its case, where there is an alternative way to avoid the risk of denial of natural justice. Here, having heard Mr Conway’s oral evidence and having been provided (at the hearing) with Mr Conway’s resume, Mr Aquilina could have sought an adjournment of the proceeding to consider any response and would have been on strong ground applying for a relevant costs order. That option was not pursued.
I rejected Mr Valiotis’ submission that I should not consider Mr Conway’s evidence because his written statement does not comply with the requirements of s 76 of the Evidence Act. Having heard Mr Conway’s oral evidence, the issue of substance is whether the totality of Mr Conway’s evidence, as described below, constitutes expert evidence.[50]

[50]Reasons [29]–[31].

The Tribunal concluded:

Applying these rules to Mr Conway’s evidence as a whole (see below) in my view it is admissible, because:
a.His evidence is relevant to the question of whether Mr Aquilina was injured as he described;
b.He has properly based specialised knowledge concerning determining how fires start and progress. A lay person is not able to inspect a fire site and determine such issues;
c.His opinion that the fire started in the rear left of the van is wholly based on his specialised knowledge; and
d.His opinion is wholly based on proven facts being burn patterns on the van and the pattern of destruction as proven by Mr Conway’s written report, his recollections and photographs tendered in this proceeding.[51]

[51]Reasons [33].

Senior counsel for the applicant submitted in oral argument:

…if any of [Mr Conway’s] evidence should have been heard, it should only as a matter of fairness and justice have been heard in relation to matters where the factual foundation for any opinion were properly proved and he gave opinion which was supported by his expertise, and unless that situation — both of those elements are applied, no fairness would allow a court to — a tribunal to make a decision based on evidence that was not properly established as expert evidence.[52]
…
There is certainly a discretion in the Tribunal to decide what evidence to admit, but it should not admit evidence as a matter of natural justice and procedural fairness which is not suitable evidence to allow a conclusion to be drawn against the injured party.[53]
…
Clearly the Tribunal can allow evidence in even where there's a failure to the comply with the practice note, but it has to apply matters - questions of procedural fairness and whether the prejudice of doing so outweighs the probative value, and in our submission, the prejudice of Mr Conway's report was extremely substantial with a relatively small claim in issue, a matter on for hearing before the Tribunal. It's not a real answer to say we - we could have got a costs order which wouldn't cover the costs of undertaking the further investigations and enquiries.
It was unfair, unjust and shouldn't have been allowed - the evidence shouldn't have been allowed to be admitted at all and more particularly, the relevant evidence that I've gone through.[54]

[52]Transcript, 10.

[53]Ibid 16.

[54]Ibid 24.

The TAC stated the uncontroversial position that the Tribunal is not bound by the rules of evidence.[55] It submitted that the Tribunal’s Practice Note substantially addresses issues of procedural fairness in the giving of expert evidence. However, the Practice Note cannot cut down its statutory authority as set out in s 98(1)(c) of the VCAT Act to inform itself on any matter as it sees fit.
[55]Victorian Civil and Administrative Tribunal Act 1998 s 98(1)(b).

The TAC does not agree that the applicant was denied procedural fairness in that:

(a) the TAC gave ample notice to the applicant of its intention to rely on the evidence of Mr Conway, and the substance of that evidence;

(b) Mr Conway had the specialised expertise to give evidence on the cause of the fire;

(c) the applicant cross-examined Mr Conway; and

(d) the applicant was not denied the opportunity to seek an adjournment of the hearing at any point in time, including immediately after hearing his evidence.

The TAC contends that contrary to the applicant’s assertion of procedural unfairness, the Tribunal was acutely aware of its responsibility to accord the applicant fairness.

At the hearing before the Tribunal, the following exchange took place between the Senior Member and counsel for the applicant:

MR PROCTOR: So in terms of Mr Conway’s evidence, just to be clear, what is your submission about the viva voce evidence?
MR VALIOTIS: We say he gave an opinion which we say is clouded now because he was unable, very clearly, to differentiate between what he does in general practice and what he recalled from his attendance.[56]
[56]Transcript VCAT Hearing 27 March 2014, Court Book, 295.
…

MR PROCTOR: But I’m searching for the bottom line here as to what you say. I mean, is your submission that I should have no regard to his viva voce evidence? I just want to understand the bottom line of the submission.
MR VALIOTIS: If you have regard to his viva voce evidence, in both informing yourself and the Tribunal, we say you give it very little weight because it’s clouded.[57]
[57]Transcript VCAT Hearing 27 March 2014, Court Book, 295.
…

MR PROCTOR:        But your primary submission is to exclude it?
MR VALIOTIS:        Exclude it.
MR PROCTOR:        The alternative is little weight.
MR VALIOTIS:        Yes. That’s if you accept it as evidence. That’s right.[58]

[58]Ibid 296.

Senior counsel for the TAC summarised its submission as follows:

And so when Your Honour evaluates whether or not Mr Aquilina was denied procedural fairness, and putting to one side the oral submissions made this morning for a moment, it's plain that far from being denied procedural fairness, the Tribunal was acutely aware of the need to afford Mr Aquilina procedural fairness.
Counsel for Mr Aquilina was able and did cross-examine Mr Conway at length, and closed at length, and was able to make any submissions thought suitable on the admission or otherwise of the evidence of Mr Conway, whether or not speaking to it as opinion evidence or not. And Your Honour can see the way in which the submissions were presented then for the Tribunal's consideration.
In those circumstances, not only is there no legal error in the fairness afforded, but the fairness afforded was exemplary.[59]

[59]Transcript, 34.

The TAC refers to the decision of Maxwell P in Christian Youth Camps Ltd v Cobaw Community Health Services Ltd,[60] where his Honour held:

Decisions about whether particular parts of the evidence should be admitted — and, if so, for what purpose — were matters for the judgment of the Tribunal. After all, the Tribunal is not bound by the rules of evidence and may inform itself in any way it sees fit, subject always to its obligation to act fairly and ‘according to the substantial merits of the case.’ Breaches of natural justice aside, appellate intervention in relation to an evidentiary ruling would only ever be warranted if it could be shown that the Tribunal’s discretion had wholly miscarried — for example, because of a misapprehension of the matters in issue.[61]

[60][2014] VSCA 75 (‘Christian Youth Camps’).

[61]Christian Youth Camps, [257] [Citations omitted].

The nature of the basic enquiry as to the content of procedural fairness in a particular case was articulated by Mason J in Kioa v West:[62]

Where the decision in question is one for which provision is made by statute, the application and content of the doctrine of natural justice or the duty to act fairly depends to a large extent on the construction of the statute. In Mobil Oil Australia Pty Ltd v Federal Commissioner of Taxation, Kitto J pointed out that the obligation to give a fair opportunity to parties in controversy to correct or contradict statements prejudicial to their view depends on ‘the particular statutory framework’. What is appropriate in terms of natural justice depends on the circumstances of the case and they will include, inter alia, the nature of the inquiry, the subject-matter, and the rules under which the decision-maker is acting.
In this respect the expression ‘procedural fairness’ more aptly conveys the notion of a flexible obligation to adopt fair procedures which are appropriate and adapted to the circumstances of the particular case. The statutory power must be exercised fairly, that is, in accordance with procedures that are fair to the individual considered in the light of the statutory requirements, the interests of the individual and the interests and purposes, whether public or private, which the statute seeks to advance or protect or permits to be taken into account as legitimate considerations.[63]

[62](1985) 159 CLR 550.
[63]Ibid 584–585.

Decision

I do not believe that the Tribunal failed to accord the applicant procedural fairness. The content of the duty to ensure procedural fairness in this case is no more than what the Tribunal gave to the applicant. The applicant had ample notice that expert evidence would be called. The applicant could have called expert evidence of his own. He cross-examined Mr Conway and made submissions on the admissibility and weight to be given to the evidence. At no stage did the applicant seek an adjournment or challenge the Tribunal’s ruling.[64] In the ruling, the Senior Member decided to allow Mr Conway to give evidence and to be cross examined. He would then hear in closing submissions from the parties as to the merit of the evidence. The ruling was not appealed. I adopt what is said by the President in Christian Youth Camps.
[64]Transcript VCAT Hearing 27 March 2014 [17] lines 1–30.

As I noted above in ISPT, whether or not to admit evidence, and the weight to be given to such evidence is a matter for the Tribunal. In my view, the applicant’s submissions, based on the Evidence Act, were unhelpful and misconceived.

It was a forensic decision for the applicant as to whether or not to call his own expert evidence before the Tribunal. The risk that the Tribunal would accept the evidence of an expert fire investigator over the applicant himself could not have come as a shock to his legal representatives.

Raising an issue of procedural fairness in respect of the applicant’s own failure to call expert evidence cannot be allowed. I agree with what Warren CJ said in Jones Lang Lasalle (Vic) Pty Ltd v Korlevski; Jones Lang Lasalle (Vic) Pty Ltd v Victorian WorkCover Authority:[65]
[65][2012] VSCA 305 (‘Jones Lang Lasalle’).

As the High Court held in University of Wollongong v Metwally (No 2),[1] it is only in exceptional cases that a new argument can be raised for the first time on appeal:
It is elementary that a party is bound by the conduct of his case. Except in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case had been decided against him, to raise a new argument which, whether deliberately or by inadvertence, he failed to put during the hearing when he had an opportunity to do so.

A new argument will not be permitted if the fact that the argument was not raised below would prejudice the other party’s ability to respond to it. That is, it will not permitted if the other party may have been able to rebut the argument at trial by conducting its case differently or calling additional evidence:
It would be inimical to the due administration of justice if, on appeal, a party could raise a point that was not taken at the trial unless it could not possibly have been met by further evidence at the trial.

Even if the other party is not disadvantaged by the fact that the new argument was not raised at trial, for example, if the argument raises a pure question of law that the other party could not have avoided by conducting its case differently, the party seeking to raise the new argument is not entitled to do so as of right:
A party does not have a right to insist that a new point be decided on appeal simply because all of the facts have been established beyond controversy or the point is one of construction or of law, even constitutional law. This is because it remains a question of whether the appellate court ‘may find it expedient and in the interests of justice to entertain the point’.

To determine whether the argument sought to be raised is new, the appellate court must look at how the parties actually conducted their cases at trial:
[A] point may be a new point even though it is within the pleadings or particulars. The pleadings and particulars are frequently decisive in determining whether a party is seeking to raise a new point on appeal. But they are not conclusive. To determine whether a party is raising a new point on appeal, it is ‘necessary to look to the actual conduct of the proceedings’.[66]

[66]Jones Lang Lasalle, [3]–[6].

For the reasons I have given, question of law C is not made out.

Conclusion

For the reasons I have given, the applicant has failed to establish that the Tribunal made any real or significant error of law as submitted in the grounds of appeal and questions of law. Accordingly, the appeal is dismissed. Subject to any submissions on costs, costs should follow the events.

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Aquilina v Transport Accident Commission [2015] VSC 117

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[2015] VSC 117

1 April 2015