Balmer and Associates v VLA - [2012] VSC 536

Do Not Send for Reporting
IN THE SUPREME COURT OF VICTORIA		Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S CI 2012 4999

BALMER AND ASSOCIATES	Plaintiff
v
VICTORIA LEGAL AID	First Defendant
- and -
MR BROOK HELY	Second Defendant

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JUDGE:	LANSDOWNE AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	8 October 2012
DATE OF REASONS FOR JUDGMENT:	30 October 2012
DATE OF JUDGEMENT:	2 November 2012
CASE MAY BE CITED AS:	Balmer and Associates v VLA and Anor
MEDIUM NEUTRAL CITATION:	[2012] VSC 536

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JUDICIAL REVIEW – plaintiff firm removed from indictable crime panel of VLA following review by independent reviewer - extension of time to file originating motion pursuant to r 56.02(3) Supreme Court (General Civil Procedure) Rules 2005 - whether plaintiff’s case arguable – prejudice to VLA - prejudice to plaintiff - short delay – whether sufficient explanation for delay - “special circumstances” – Legal Aid Act 1978 (Vic) ss 18, 19(1), 29A, 30 – s 29A Practitioner Manual clauses 7.3.2, 7.4.7

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr T Hurley	Lewenberg & Lewenberg
For the First Defendant	Mr R.J. Harris	Victoria Legal Aid
For the Second Defendant	No appearance

HER HONOUR:

Introduction

This is an application by the plaintiff for an extension of time to file an originating motion pursuant to O 56 of the Supreme Court (General Civil Procedure) Rules 2005. The application is made by amended summons filed 19 September 2012.

The originating motion was filed on 31 August 2012 seeking relief pursuant to O 56, the Administrative Law Act1978 and by way of declaration, in respect of a decision by the second defendant, an independent reviewer appointed pursuant to the Legal Aid Act 1978 (Vic) (“the Legal Aid Act”). His decision confirmed an earlier decision by the first defendant to remove the plaintiff from the panel of solicitors approved to conduct legally aided indictable criminal matters, but shortened the period of removal from two years to one year.

The decision of the independent reviewer was dated 20 June 2012. It was sent to the plaintiff and the first defendant by email dated 29 June 2012. At a hearing before me on 17 September 2012 the plaintiff conceded that the originating motion, in so far as it made application under the Administrative Law Act, was out of time (and subsequently the plaintiff amended the originating motion to delete that relief), but contended that the originating motion, in so far as it sought relief under O 56, was filed within time.

Rule 56.02 provides as follows:

(1)A proceeding under this Order shall be commenced within 60 days after the date when grounds for the grant of the relief or remedy claimed first arose.
(2)Where the relief or remedy claimed is in respect of any judgment, order, conviction, determination or proceeding, the date when the grounds for the grant of the relief or remedy first arose shall be taken to be the date of the judgment, order,…

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.

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Details

Case: [2012] VSC 536
Decision Date: 30 October 2012

CaseChat Overview and Summary

The case between Balmer and Associates and VLA involves the removal of the plaintiff law firm from the indictable crime panel following a review conducted by an independent reviewer. The firm sought an extension of time to file an originating motion under rule 56.02(3) of the Supreme Court (General Civil Procedure) Rules 2005. The core issues before the court were whether the plaintiff's case was arguable and if granting the extension would cause undue prejudice to either party. Additionally, the court examined whether the short delay in filing and the provided explanation constituted sufficient grounds for the extension under the "special circumstances" criteria of the Legal Aid Act 1978 (Vic) and the provisions in the s 29A Practitioner Manual.

In determining whether the plaintiff's case was arguable, the court found that the arguments presented had sufficient merit to warrant consideration. Regarding the potential prejudice to VLA, the court concluded that the short delay and the explanation provided by the plaintiff did not significantly impact VLA's position. The court emphasised that the delay was brief and that the explanation was adequate, aligning with the criteria outlined in the Legal Aid Act and the Practitioner Manual. Consequently, the court held that the extension should be granted, as the plaintiff had demonstrated sufficient justification for the delay.

The court ultimately decided that the plaintiff's case was arguable and that granting the extension would not cause undue prejudice to either party. The explanation provided by the plaintiff for the delay was deemed sufficient under the special circumstances doctrine. Therefore, the court allowed the extension of time for the filing of the originating motion. This decision ensures that the plaintiff's right to seek judicial review is upheld while also considering the potential impact on the respondent and the broader legal process.

Orders