Azisovski v Swordtail Pty Ltd - [2021] VSC 605

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Azisovski v Swordtail Pty Ltd

Details

AGLC: Azisovski v Swordtail Pty Ltd [2021] VSC 605
Case: [2021] VSC 605
Decision Date: 23 September 2021

CaseChat Overview and Summary

The case of Azisovski v Swordtail Pty Ltd involved an application by the applicant, Azisovski, for leave to appeal a decision of the Victorian Civil and Administrative Tribunal (VCAT). The application for leave to appeal was significantly delayed, being submitted approximately 34 months after the decision was made. Additionally, Azisovski sought an extension of time to lodge the application. The Court was required to determine whether the application for leave to appeal, filed well beyond the statutory deadline, could be entertained, and whether an extension of time should be granted to permit the appeal to proceed.

The central legal issues addressed by the Court were the justification for the significant delay in lodging the application for leave to appeal and the potential prejudice to the respondent, Swordtail Pty Ltd, if an extension of time were granted. The Court also examined the applicant's grounds of appeal to assess whether they established a question of law warranting an extension of time. This included evaluating the prospects of success of the proposed grounds of appeal.

The Court found that the applicant had not adequately explained the inordinate delay in lodging the application. The matters relied upon by Azisovski did not sufficiently justify the delay. The Court further noted that granting an extension would cause prejudice to the respondent and would run counter to the objectives of the Civil Procedure Act 2010. Additionally, the applicant's grounds of appeal did not establish a question of law, nor did they possess any reasonable prospects of success. Consequently, the Court concluded that an extension of time was not warranted, and the application for leave to appeal was dismissed.

Orders