Barter v Celebic - [2020] VSC 353

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

JUDICIAL REVIEW AND APPEALS LIST

S ECI 2019 04848

SALLY BARTER	Plaintiff
v
NICOLE JANE BUSHETT/CELEBIC	Defendant

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JUDICIAL REGISTRAR:	Keith JR
WHERE HELD:	Melbourne
DATE OF HEARING:	13 May 2020
DATE OF JUDGMENT:	14 May 2020
CASE MAY BE CITED AS:	Barter v Celebic
MEDIUM NEUTRAL CITATION:	[2020] VSC 353

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PRACTICE AND PROCEDURE – Application for leave to appeal decision of VCAT – Application approximately 123 days late – Significant delay requires due explanation – Applicant asserted she is a single mother of a chronically sick child – Such factors do not explain delay, but have some relevance on the Court’s discretion – Applicant asserted she was unfit to manage case due to acoustic shock – The applicant’s medical history was confused, and unable to demonstrate her inability to attend to her case – Applicant asserted she was unable to obtain legal representation – Failure to obtain representation not consistent with applicant’s case regarding ill-health – Applicant received legal advice and rejected it – Applicant queried accuracy of VCAT hearing transcript – The accuracy of a transcript rarely influences an appeal on a question of law, thus does not justify extension– Applicant asserted VCAT failed to provide whole file when inspected – Inspection not necessary in appealing a decision, and thus not grounds for an extension – Prejudice caused to respondents by extension a compelling reason against extension – Granting extension against the objectives of the Civil Procedure Act 2010 – Applicant’s four 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
Ms Barter for herself via Zoom
Mr Nixon for the respondent via Zoom

JUDICIAL REGISTRAR:

This proceeding was commenced on 24 October 2019 when the applicant filed a notice seeking leave to appeal from orders of VCAT in the Building and Property List of the Tribunal. At the first directions hearing of this proceeding on 27 November 2019 an order was made allowing the applicant to file an amended notice of appeal in order to seek an extension of time within which to appeal.

On 13 February 2020 the amended notice of appeal was filed. In accordance with the directions given on 27 November 2019 the respondents requested a separate hearing of the application for an extension of time. That request was granted and the parties were informed by email from the Court dated 21 April 2020.

By order of Daly AsJ, made on 21 April 2020, the hearing and determination of the application for an extension of time was referred to me pursuant to Rule 84 of the Supreme Court (General Civil Procedure) Rules 2015. The hearing proceeded on 13 May 2020 and was conducted as a remote hearing in accordance with the response of the Court to the COVID-19 pandemic…

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 Barter v Celebic

Details

AGLC: Barter v Celebic [2020] VSC 353
Case: [2020] VSC 353
Decision Date: 14 May 2020

CaseChat Overview and Summary

The case of Barter v Celebic was an application for leave to appeal a decision made by the Victorian Civil and Administrative Tribunal (VCAT). The applicant, Barter, sought to appeal the decision approximately 123 days after the mandated deadline. The primary issue for the court was whether the applicant could be granted leave to appeal the decision despite the significant delay in filing the application.

The court had to consider several factors in determining whether the delay was justifiable. Barter claimed to be a single mother of a chronically ill child and that she suffered from acoustic shock, which allegedly impaired her ability to manage the case. While these personal circumstances might have some bearing on the court's discretion, they did not sufficiently explain the significant delay in filing the application. Additionally, Barter's medical history was found to be confusing, and she could not demonstrate an inability to manage her case due to her health issues. Barter also claimed that she was unable to obtain legal representation, but this was inconsistent with evidence that she had received and rejected legal advice. The court noted that the accuracy of the VCAT hearing transcript was not a valid reason to extend the time for filing an appeal, nor was the failure to provide the whole file during inspection, as neither of these issues were relevant to the appeal process.

Ultimately, the court found that Barter's application did not establish a question of law that warranted an extension of time. The court also concluded that the proposed grounds for appeal lacked prospects of success, and that granting an extension would undermine the objectives of the Civil Procedure Act 2010. The application for leave to appeal was dismissed, and the proceeding was terminated.

Orders