Azisovski v Swordtail Pty Ltd
[2021] VSC 605
•23 September 2021
| IN THE SUPREME COURT OF VICTORIA |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
S ECI 2021 00925
| FATIME AZISOVSKI | Applicant |
| v | |
| SWORDTAIL PTY LTD TRADING AS M&G MOTORS | Respondent |
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JUDGE: | Matthews AsJ |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 17 September 2021 |
DATE OF RULING: | 23 September 2021 |
CASE MAY BE CITED AS: | Azisovski v Swordtail Pty Ltd |
MEDIUM NEUTRAL CITATION: | [2021] VSC 605 |
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PRACTICE AND PROCEDURE – Application for leave to appeal decision of VCAT – Application approximately 34 months late – Application for extension of time - Significant delay requires due explanation – Matters relied upon by Applicant do not adequately justify the inordinate delay – Prejudice caused to respondent by extension a reason against extension – Granting extension against the objectives of the Civil Procedure Act 2010 – Applicant’s grounds of appeal failed to establish a question of law to justify extension – Applicant’s questions of law lacked prospects of success, thus not warranting extension – Extension of time application refused – proceeding dismissed.
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APPEARANCES: | Counsel | Solicitors |
| The Applicant in person | Self-represented litigant | |
| For the Respondent | Mr S Rajanayagam | HWL Ebsworth |
HER HONOUR:
Introduction
The Applicant seeks leave to appeal from a decision of the Victorian Civil and Administrative Tribunal (‘VCAT’) dated 4 April 2018, pursuant to s 148 Victorian Civil and Administrative Tribunal Act 1998 (Vic) (‘VCAT Act’). The Applicant’s Notice of Appeal was filed on 25 March 2021.
Pursuant to s 148(2)(a) of the VCAT Act and r 4.04(b) Supreme Court (Miscellaneous Civil Proceedings) Rules 2018 (‘Appeal Rules’), an appeal or application for leave to appeal against a decision of VCAT must be made within 28 days after the date of VCAT’s order. Under s 148(5) of the VCAT Act, the Court has power to extend or abridge any time limit fixed by or under s 148, hence the Court is able to extend the time for the Applicant to file the application for leave to appeal or her Notice of Appeal.
The Notice of Appeal contains reference to an extension of time. On the first return on 12 May 2021, Judicial Registrar Irving (as his Honour then was) took the reference to an extension of time in the Notice of Appeal to be an application under r 4.08(1)(b) of the Appeal Rules for extension of time to seek leave to appeal (‘Application’) and set a timetable for material for hearing of the Application.
The timetable was extended by Judicial Registrar Keith on 21 July 2021. Judicial Registrar Keith’s orders required submissions from the applicant by 13 August 2021, and reply submissions by 20 August 2021. The Judicial Registrar did not make orders for filing of further affidavit material.
For the reasons which follow, the application for an extension of time is refused. Accordingly, the proceeding must be dismissed.
Material relied upon
The following material has been filed in the Application:
(a) Notice of Appeal filed 25 March 2021;
(b) Affidavit of Fatime Azisovski filed 25 March 2021 and exhibits thereto (‘First Azisovski Affidavit’);
(c) Affidavit of Fatime Azisovski filed 20 May 2021 and exhibits thereto (‘Second Azisovski Affidavit’);
(d) Affidavit of Jonathon Robert Ferraro filed 30 June 2021 and exhibits thereto (‘Ferraro Affidavit’);
(e) Affidavit of Fatime Azisovski filed 29 July 2021 and exhibits thereto (‘Third Azisovski Affidavit’); and
(f) Affidavit of Fatime Azisovski filed 12 August 2021 and exhibits thereto (‘Fourth Azisovski Affidavit’).
The Respondent has filed two sets of submissions:
(a) Respondent’s first submissions dated 30 June 2021; and
(b) Respondent’s second submissions dated 19 August 2021.
The Applicant has not filed any written submissions.
Both parties made oral submissions at the hearing before me.
The Respondent objects to the Third and Fourth Azisovski Affidavits on the basis that they were filed without leave and outside the timetable set by Judicial Registrar Keith.
Further, the Respondent objects to the Third Azisovski Affidavit in that it makes what are described as vague and unparticularised allegations of an apparently serious nature, involving the Respondent in some unspecified way. It is also said that the allegations concerning discussions with the Respondent in 2017 are similarly vague and unparticularised. The Respondent says that as it does not have leave to file a responsive affidavit, the Court should decline to take it into account. The Respondent also says that, in any event, the Third Azisovski Affidavit does not assist the Applicant’s application.
The Respondent does not object to the Fourth Azisovski Affidavit insofar as it exhibits a copy of the transcript of the hearing before VCAT, including the oral reasons given by the Member for her ruling. The Respondent says that the Fourth Azisovski Affidavit advances new evidence in support of the Applicant’s case and insofar as it seeks to do so it should be ignored: first, because it was filed without leave; and second, because of the nature of an appeal under s 148 of the VCAT Act, which is a proceeding in the nature of judicial review and not a rehearing.[1] On this second point, the general rule is that new evidence is not admissible in a judicial review proceeding and this case does not fall within any recognised exception to that general rule.[2]
[1]Roy Morgan Research Centre Pty Ltd v Commissioner of State Revenue (Vic) (2001) 207 CLR 72, 79.
[2]Gardiner v Attorney-General (No 3) [2020] VSC 516, [51].
I will allow the Applicant to rely on her Third and Fourth Affidavits insofar as they go to matters in connection with the extension of time application or exhibit the transcript. In terms of matters going to the substance of the Applicant’s case below, I accept the Respondent’s submission as to the admissibility of that evidence. An appeal of a decision by VCAT requires a finding that there has been an error of law and the Court does not rehear the matter.
Background – the VCAT decision
In summary, in the VCAT proceeding the Applicant sought orders for repair or refund for a car purchased from the Respondent in July 2016, pursuant to consumer guarantees under the Australian Consumer Law (‘ACL’) and in particular, the guarantee of fitness for purpose and acceptable quality pursuant to s 54.
The Applicant purchased a 2001 Mercedes car from the Respondent, trading as M&G Motors, on 7 July 2016 for $5,500.[3] At the time of purchase, the odometer reading was 161,000 kms.[4] By May 2017, approximately 17,733 kms had been added and between then and 27 July 2017 approximately another 2,000 kms had been added.[5] The Applicant’s evidence before VCAT was that in around October 2016 she noticed that the car seemed to lose acceleration or some power when going up a hill; that in around April 2017 she had an accident in the car (not connected to any acceleration issue) and repairs were done to it after that; and that she had a similar problem with the acceleration in around July 2017, following which she had some repairs done.
[3]VCAT Transcript, 6.9-23. The Respondent says that the price was $6,000 including stamp duty and transfer fee, but I do not consider that anything turns on this distinction.
[4]VCAT Transcript, 27.30-31.
[5]VCAT Transcript, 30.4-15.
The evidence before VCAT as to the timing of when the Applicant first made complaints to the Respondent about the car is not entirely clear. It appears that some contact was made within the initial 12 months after purchase, but at no stage during that time did the Applicant take the car to the Respondent for repair or review.
The Member declined to make an order on the basis that there was insufficient evidence of the state of the car when supplied and evidence of considerable use of the car in the intervening time between purchase and the complaint, along with other matters. In particular, the Member held that there was insufficient evidence as to the cause of the alleged fault complained of, being the level at which the car accelerated or, put another way, decline in power to the car when being driven, such that it was not possible to conclude that this alleged fault or its consequences should be visited upon the Respondent.
Applicable Principles
As I mentioned, the Application before me is for an extension of time to seek leave to appeal. The VCAT decision was made on 4 April 2018, such that the application for leave ought to have been filed by 2 May 2018, whereas it was filed on 25 March 2021, almost three years late.
In Muto v Secretary to the Department of Planning and Community Development[6] Neave JA said:
The factors which must be considered in deciding whether an extension of time to seek leave to appeal should be granted, include the length of delay, the reasons for the delay, and the extent of any prejudice suffered by the respondent if the extension is granted. The Court will not extend time if the appeal is so devoid of merit that it would be futile to do so.
[6](2013) 38 VR 293, [13] (citations removed).
The onus is on the Applicant to prove that an extension of time ought to be granted.[7]
[7]Jackamarra v Krakouer (1998) 195 CLR 516, 540, cited in Trkulja v Dobrijevic [2015] VSCA 281, [27].
Further, r 4.08(8) of the Appeal Rules provides that an application for an extension of time may be dismissed if the Court is satisfied that:
(a)the notice of appeal does not identify sufficiently or at all a question of law on which the appeal or proposed appeal may be brought;
(b)the appellant or applicant does not or would not have an arguable case on appeal or to refuse leave would impose no substantial injustice; or
(c)the appeal or application is frivolous, vexatious or otherwise an abuse of the process of the Court.
Factors applicable to the application for an extension of time
Applicant’s justification for the delay
The Notice of Appeal states under ‘extension of time’:
1. Covid-19 [sic] restrictions.
2. Personal medical reasons and surgery which was required.
3.Claims can be made within six years of the date of the purchase of the dispute arising. Statute of limitation act. [sic]
COVID-19 restrictions
There is no explanation in any of the Applicant’s affidavits as to how COVID-19 relates to the delay. The COVID-19 pandemic and the restrictions imposed from time to time since March 2020 afford no explanation as to how this could possibly be relevant for the period before March 2020. Further, there is nothing in the affidavit material which explains how COVID-19 has impacted upon the Applicant’s ability to file the application for leave to appeal since March 2020.
Personal medical reasons/surgery
Paragraph 3 of the Second Azisovski Affidavit refers to surgery, and exhibits a surgical release form indicating in the top right corner that the Applicant was admitted on 20 March 2020.
Paragraph 1 of the Third Azisovski Affidavit refers to a back-pain issue and exhibits a record of an examination on 11 June 2021. The Applicant refers to a significant reduction in physical capacity as a result of this back pain with the last instance in 2019 for “several weeks”, and that it has “been there for years”. The record of the examination does not mention anything that would appear to affect the Applicant’s ability to deal with the VCAT decision or an application for leave to appeal.
Paragraph 2 of the Third Azisovski Affidavit refers to alleged attacks on the Applicant in 2018 and 2019. More detail of this is given in this affidavit and I have read and considered it, but there is no reason to go into that detail here. The evidence is imprecise and there are only specific references to dates in 2019 and thereafter.
I have no reason to doubt the evidence given by the Applicant in respect of her medical conditions and personal issues, however her affidavits do not explain how these have prevented her from filing her application for leave to appeal within time or in a timely fashion.
Statute of limitations allows for 6 years
I do not accept that the third reason relied on by the Applicant provides any basis for an extension of time: it concerns the limitation period for an original action and has no role to play in respect of the time in which an appeal, or an application for leave to appeal, is brought. I have already mentioned the legislative provisions governing this, being s 148 of the VCAT Act.
Period of delay in filing the application for leave to appeal
The Court of Appeal stated in Cooma Clothing Pty Ltd v Create Invest Develop Pty Ltd[8] that:
Ordinarily, an application for extension of time in which to appeal is not to be granted unless the applicant furnishes the court with a detailed explanation of the delay and a good reason for excusing it.
[8](2013) 46 VR 447, [15].
In my view, the period of delay is inordinate and the reasons given for the delay are inadequate. The Court has not been furnished with a good reason for excusing the lengthy delay.
Prejudice to the Respondent
Insofar as prejudice to the Respondent is concerned, which is the third matter identified in Muto, the Respondent says it would be prejudiced by having to incur costs in defending the appeal if it were to proceed. I do not see this as prejudice connected with the extension of time: if it had been filed in time, then the Respondent would have had to incur such costs.
The Respondent also says that it has a legitimate interest in the finality of VCAT’s decision in its favour, which I accept is a relevant form of prejudice for the purposes of this application. Further, the Respondent points to the overarching purpose in s 7 of the Civil Procedure Act 2010 of the “just, efficient, timely and cost-effective resolution of the real issues in dispute”, which Courts are to seek to give effect to.
In my view, the finality of Court process is a factor against granting an extension of time, and the proper and timely administration of justice would be impeded by an extension of time. Granting an extension of time would not assist fulfilling the overarching purpose and is not warranted on the facts given the lengthy delay in filing the application for leave to appeal and the reasons given for that delay.
Merits of the application for leave to appeal
That leaves for discussion the fourth matter identified in Muto, being the prospect of success. As was said in that case, the Court will not extend time if the application for leave to appeal is so devoid of merit that it would be futile to do so.
The Notice of Appeal sets out two questions of law and three grounds of appeal as follows:
QUESTION OF LAW:
1.The Australian Consumer Law and Fair Trading Act 2012, the VCAT member had to apply and got it wrong. Under the Australian consumer Law are consumer rights to replacement, refund or repair. This is consumer protection to ensure that the purchase is safe and durable, compensation for damages or loss, (s 64) set out in legislation is not to void the consumer under the act, (s 55) and (s54) of the act is guarantee that the goods are of acceptable quality, these are fit for purpose and safe free from defects and durable.
2.Competition and consumer Act 2010, (formerly the trade practice Act 1974), the VCAT member had to apply and got it wrong, (s54) states that guarantee of acceptable quality and free from defects. Schedule 2: Australian consumer Law.
THE GROUNDS RELIED UPON ARE:
1.The judicial officer conduct as to material facts made available at trial who ought to know, the legislative act applicable, and facts which stipulates, where it hasn't been applied.
2.Acted improper, violating other specific mandatory standards such as rules of evidence, where the standard is not met and law is not applied.
3.Breach of confidence, being fair means being just in considering all relevant information, and the law hasn't been applied, which is a common rule under the Act.
I do not consider that the Notice of Appeal identifies any questions of law in the relevant sense: for the most part it summarises what the Applicant understands the relevant law under the ACL to be and says that the Member had to apply this and got it wrong.
The grounds stated in the Notice of Appeal are not entirely intelligible. Doing the best that I can, the grounds appear to be that the Member did not apply the relevant law and did not take into account all evidence and relevant information. Insofar as it is said that the Member acted improperly, that is not developed at all. For example, it is unclear whether the Applicant is saying that she had not been afforded a fair hearing.
Even giving the Applicant the benefit of the doubt or some leeway in respect of this drafting, given that she is unrepresented,[9] I do not consider that the application for leave to appeal has any merit.
[9]Principles concerning the Court’s approach when dealing with unrepresented litigants have been summarised in cases such as Daher v Bell [2020] VSC 346, [8]-[9]. That is the approach I have taken in the instant case.
I have reviewed the transcript of the hearing and the exhibits to the Applicant’s affidavits which were before VCAT.
I am satisfied that the application for leave to appeal is devoid of merit, such that ordering an extension of time would be futile.
The Member took into account the evidence which the Applicant put before her. There is nothing to suggest that the hearing was not conducted fairly, as the transcript discloses that the Applicant had every opportunity to make her case to the Member. There is no discernible error of law or reasoning and the findings made by the Member and the conclusion reached by her were entirely open on the evidence. Without evidence of the cause of the alleged fault or that it was present at the time the Applicant purchased the car, then in light of the other evidence as to the extensive use of the car before the complaint was made, the Member’s conclusion that she could not make a finding that as at July 2016 the car was not fit for purpose or of an acceptable quality was justifiable. The Member’s conclusion that what evidence there was as to repairs to the car was insufficient to identify the cause of the alleged fault or to visit responsibility for it on the Respondent was open to her.
Conclusion
For these reasons, principally the failure to adequately explain the reasons for the inordinate delay such that I do not consider there to be any good reason for that lengthy delay and the lack of merit in the application for leave to appeal, I will dismiss the application for an extension of time.
It follows that the proceeding will also be dismissed.
My preliminary view in respect of costs is that the usual outcome that costs follow the event should apply here, such that the Applicant should be ordered to pay the Respondent’s costs of the proceeding, including the Application. As costs were not addressed at the hearing, I will give the parties an opportunity to confer as to the form of final orders and as to costs.
If an agreed position is reached, then proposed consent orders should be sent to my Chambers by 4.00 pm on 1 October 2021. If the parties do not reach agreement, then each party is to send to my Chambers, by 4.00 pm on 1 October 2021, their preferred form of orders and a short written submission (of no more than 3 pages) in respect of costs. In the latter instance, the proceeding will be listed for 8 October 2021 for the making of orders and a determination on costs.
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