Barter v Celebic
[2020] VSC 353
•14 May 2020
| 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 and associated directions of the Government of Victoria.
For reasons which follow the extension of time to appeal is refused and the proceeding is dismissed.
Procedural History
The applicant filed an affidavit in November 2019 with exhibits including the VCAT decision. The applicant set out the grounds for the application for an extension of time in the November affidavit and in her unsworn affidavits provided by email on 12 May 2020.
Transcript from the VCAT hearing was filed on 7 April 2020. I note the applicant has emailed the court (on 21 April 2020) expressing concerns about the transcript. The applicant expressed concerns about the transcript during the hearing before me on 13 May 2020. Those concerns relate to the applicant’s view there are inaccuracies in the transcript. The applicant has referred to several different audio versions of the VCAT proceedings.
On 8 May 2020 the respondents filed submissions in opposition to the grant of an extension of time. Counsel for the respondents relied on those written submissions in the oral submissions presented on 13 May 2020. The respondents also included by email on 12 May 2020 a bundle of papers referred to in the submissions and relied on for the hearing before me.
The applicant provided unsworn copies of affidavits on which she relied. The documents were received by email on 12 May 2020. The unsworn nature of the documents was due to the COVID-19 restrictions and were received by the Court for the purposes of the application in accordance with such provisions.
An unsworn affidavit of one of the respondents was filed on 13 May 2020 and relied on for the purposes of the hearing.
The orders made on 27 November 2019 listed the application for leave to appeal (and the appeal if leave were granted) for hearing on 21 October 2020. A timetable was set for documents to be filed to prepare for that hearing. Affidavits were to be filed by 17 April 2020 and 22 May 2020. At the conclusion of the hearing on 13 May 2020, when I reserved my decision, I indicated to the parties the timetable would be suspended until further order.
Overview of VCAT Proceedings
The VCAT proceedings related to claims made for damage to premises that occupy part of subdivided land in Turnbull Avenue, Toorak. The applicant was the claimant in the Tribunal proceedings and lives at 23 Turnbull Avenue being Lot 1 of the subdivision. The respondents live at 23A Turnbull Avenue which is Lot 2 of the subdivision. There are only 2 allotments in the subdivision.
The building was constructed in about 1939. The applicant became the owner of Lot 1 in January 2005. The respondents became the owners of Lot 2 in 2015.
The applicant has previously been party to proceedings relating to the property and issues relating to the damage. VCAT proceedings in 2011 were taken against a conveyancing firm and building inspectors or architects. The applicant provided as Exhibit 5 to her November 2019 affidavit a copy of terms of settlement entered into in 2013 in relation to the 2011 VCAT proceeding. In 2012 the applicant commenced VCAT proceedings against the Bautista brothers who were then the owners of Lot 2.
The respondents submit the 2017 VCAT proceedings the subject of this appeal had a tortured history. It is not necessary for this decision to recite all of that history. The applicant has included as Exhibit 10 to her November 2019 affidavit correspondence between the parties in 2016 and 2017.
A bundle of documents submitted by the respondents for the hearing before me included the amended particulars of claim in the VCAT proceeding which were filed on 3 April 2019 shortly before the VCAT hearing in May 2019. The bundle also includes the orders and directions made by VCAT in the period from 1 June 2017 to 4 April 2019 on approximately 20 separate occasions.
The decision of Senior Member R Walker was dated 27 May 2019 and shows the hearing proceeded from 29 April to 3 May 2019. The hearing and evidence are mentioned by the Senior Member in paragraphs 8 to 12 of the reasons. The parties gave evidence and called expert witnesses. The hearing proceeded across five days and the applicant was allowed time for written submissions.
The applicant has said in her affidavits and submissions the decision and order were not received by her until 5 June 2019 and was not read by her until 7 June 2019. Those matters are not in dispute.
There remain very significant disputes between the parties who continue to live as neighbours in the two properties at Turnbull Avenue. The nature of the disputes may be illustrated by the exchange of affidavits and evidence concerning conduct and alleged conduct between the parties. I do not need to resolve all of the issues arising from the disputed evidence to determine this application. There is good reason to determine this application for an extension of time promptly to provide some certainty for both parties. These matters are also relevant to questions of prejudice discussed later in these reasons.
Extension of Time
In considering the grant of an extension of time, reference may be made to decisions of the Court of Appeal such as Trkulja v Dobrijevic & Ors[1] and Gippsreal Ltd v Kenny[2]. Primarily, the guiding principle is the discretion to extend time is to enable to court to do justice between the parties. The Court of Appeal has identified several considerations to bear in mind, including:
[1] [2015] VSCA 281.
[2] [2016] VSCA 65.
(a) the applicant to the extension of time being able to explain the delay, and this explanation being justifiable in the circumstances;
(b) the history of the proceedings, and the conduct of the parties;
(c) whether, the successful party (at first instance) has a legitimate interest in the finality of the original decision in their favour being maintained; and
(d) the prospects of success for an appeal based off the sought-after extension of time, bearing in mind the parties (at that point in time) would not be in a position to make a full address of the argument, nor would the court be placed to make a detailed assessment.
The principles have been stated in many cases, including by Brennan CJ and McHugh J in Jackamarra v Krakouer[3], where the criteria to be considered include:
[3] [1998] HCA 27, [4].
(a) the length of the delay;
(b) the reasons for the delay; and
(c) whether any prejudice would be suffered by the respondents, or the administration of the court business, if the extension was granted.
Derham AsJ in Advaland Pty Ltd v Bitcon and Anor[4] summarised the common principles surrounding the granting of an extension of time. His Honour outlined criteria to be considered in the exercise of an extension of time, being:
[4] [2015] VSC 235.
(a) the length of the delay;
(b) the reasons for the delay;
(c) whether there is an arguable case for the grant of leave to appeal if an extension of time is granted;
(d) the weighing of the extent of prejudice to the appellant and respondents if time is extended; and
(e) the importance of the subject matter.[5]
[5]Ibid, [39].
In considering an application for an extension of time, the court should bear in mind the nature and purpose of the statutory timeframe prescribed in which to commence a proceeding or take a step in a proceeding. Specifically, the discretion of the court to allow an extension of time for an application made outside the prescribed time should not automatically override the statutory prescribed deadline, simply because there is an arguable basis for such an extension. As McHugh J in Brisbane South Regional Health Authority v Taylor[6] observed:
A limitation period should not be seen therefore as an arbitrary cut off point unrelated to the demands of justice or the general welfare of society. It represents the legislature’s judgment that the welfare of society is best served by causes of action being litigated within the limitation period, notwithstanding that the enactment of that period may often result in a good cause of action being defeated.
[6] [1996] HCA 25.
In Brandwill Holdings Pty Ltd v Jonson & Ors[7] Emerton J observed the necessity of compliance with time stipulations also satisfied the ‘general need for finality in litigation’ and provides the parties to a dispute a measure of certainty. Therefore, a good reason for the delay remains an important factor when the court considers its discretion to extend the time in which to make applications.
[7] [2014] VSC 356.
A further purpose of time limitations is to ensure there is no ‘untoward delay in achieving some finality in litigation.’[8] This requires any question of law to be quickly identified for the purposes of the appeal (see Brandwill Holdings Pty Ltd, [33]). This reaffirms the need for an extension of time to not merely be arguable, but justifiable, in the circumstances.
[8] Trkulj v Dobrijevic & Ors [2015] VSCA 281, [60].
Length of Delay
The decision of VCAT is dated 27 May 2019. The applicant has shown the decision was received by her on 5 June 2019 and considered by her on 7 June 2019. The applicant said in her affidavit ‘due to Easter’ but accepts this is an error. There may have been a weekend or some other explanation.
Section 148 of the VCAT Act provides an application for leave to appeal must be commenced ‘within 28 days after the day of the order of the Tribunal’. The day of the order is 27 May 2019.
I accept that if the only delay in commencement of the appeal had been to a date 28 days after 5 June or even 7 June there would be a greater chance the extension of time would be granted. But that is not the case.
The submission for the respondents is the delay is some 123 days. This proceeding was commenced in October 2019 – some four months late. I agree with the submission for the respondents that such a significant and material delay requires due explanation. The respondents relied upon observations in Hewitt v Count Financial[9] in this regard.
[9] [2017] VSCA 354 at [22].
Reasons for Delay
The applicant has said very little as to her conduct during the period of 28 days after the date of the VCAT order to explain why no steps were taken during that time to commence the appeal. The applicant spoke with a person at the Supreme Court in the role of self-represented litigant coordinator on 20 June 2019. That was still within the 28-day period. The applicant says attempts to contact the Court had been made prior to 20 June, but the significant fact is contact was made prior to the expiry of the time limit.
The applicant has explained she is a single mother, and supports her child who has a number of chronic illnesses. The applicant is self-represented. Those matters do not, of themselves, offer any explanation for the delay in this case. I accept they are relevant matters to consider in the totality of the circumstances for the exercise of my discretion.
Reason for delay – health and medical issues
The facts relied on by the applicant concerning her health issues are not accepted by the respondents. For the purposes of this application for an extension of time I have endeavoured to consider the merits of the application making allowances for the fact the applicant is not represented by a lawyer. Aspects of my summary of the evidence make assumptions because of the manner in which the evidence was presented, but I have sought to make assumptions favourable to the applicant where possible. In view of the conclusion I have reached, I do not consider there is any prejudice to the respondents as a result of this approach.
The applicant has given evidence of an event said to have occurred in May 2019 which she considers caused her to lose concentration and to be unable to attend to matters. The incident is described as being a possible cause of ‘Acoustic shock’ – a diagnosis said to have been formed later in 2019. The applicant has provided several statements in relation to the incident and her medical health in connection with it.
The affidavit filed by the applicant in November 2019 contains a statement of reasons why an extension of time is requested. The statement comprises ten paragraphs numbered with roman numerals I to X and three ‘other points’ marked A, B and C. In relation to the ‘incident’ the fifth paragraph (marked ‘V’) says:
On the Saturday or Sunday after the hearing while standing in my usual position in the kitchen I heard an extremely loud low frequency sine wave like sound coming from the other side of the wall (the respondents’ kitchen or underneath it) that stunned me. It was so loud that my ears were physically hurting and no covering would reduce it. It only lasted for 2-3 minutes but I was very frightened by this and shaken for a number of weeks/months afterwards by it.
The hearing concluded on Friday 3 May 2019. It is unclear whether the incident is said to have occurred on the 4th or 5th of May, or on some other date. I mention below some photographic evidence concerning the sequence of events in May 2019. The applicant seems to say the incident then had consequences for her capacity to deal with issues after the decision dated 27 May 2019. The evidence about that consequence is not persuasive. I note VCAT permitted time for the applicant to provide written submissions after 3 May 2019 and at paragraph 8 of the reasons the Senior Member records submissions were received as ordered.
The eighteen-page unsworn affidavit of the applicant provided to the court by email on 12 May 2020 refers to the incident at paragraphs 5 to 12. There are some differences between the two versions, one written in October 2019 (the November affidavit) and one written in May 2020. Although the first version said the noise lasted 2 – 3 minutes, the second version says it is difficult to say how long it went on. The second version says Ms Barter went straight to bed, but no such statement was made in the first version.
The exhibits to the unsworn affidavit include at page 11 of the bundle (marked ‘Exhibit 1 (4)’) a letter dated 1 November 2019 from Tom Reid, an Audiologist with Specsavers Audiology. Although that letter is dated prior to the November 2019 affidavit filed by the applicant, it does not appear to have been included in the exhibits. The letter refers to an attendance on 31 August 2019 and describes her symptoms. There is no reference to any subsequent consultation, although the letter does say the symptoms ‘have only recently improved’ which may suggest subsequent consultations. The description of the incident does not say it was an event in May 2019 and does not relate how long prior to 31 August 2019 the incident in fact occurred. The report says the noise lasted ‘several minutes’. The letter does not indicate any medical opinion as to the effect or consequences. The letter does not contain a definite diagnosis but observes ‘This experience seems consistent with acoustic shock’.
The unexplained delay between the events described in May 2019 and the consultation in August 2019 makes it difficult to say an extension of time should be granted in the interests of justice. The November 2019 affidavit makes no mention of the consultation on 31 August 2019. There are other medical certificates, but they do not refer to the incident or the symptoms described by the applicant.
The May 2020 unsworn affidavit of eighteen pages includes other matters concerning the events of May 2019 in paragraph 7. The affidavit does not expressly relate the matters described to the loud noise incident, but the applicant has included the paragraph in the section of her affidavit dealing with the loud noise and its consequences. The implication is she suggests they are related. Paragraph 7 says:
The next day I also noticed Balsa Celebic carried two large rubbish bags out to the bin that appeared to contain polyester such as is used to acoustically deaden the space behind a speaker in a speaker box. I was curious enough to check [photograph exhibited]. I had previously heard very loud music coming from the Respondents’ unit such as that that might be from a P.A. but only for a split second. My understanding is that Mr Celebic has previously been a hobbyist DJ.
The exhibit contains a photograph of a green bin with yellow plastic bags containing white soft stuffing material.
These events are disputed by the respondents. On 13 May 2020 prior to the hearing before me the respondents filed an unsworn affidavit of Nicole Celebic in response to the affidavit of the applicant. The respondents deny loud music has been played and disputing the matters raised by the applicant. In relation to the contents of the rubbish bin the respondents say they were in fact the remnants of a dog’s bed which had been destroyed by their new puppy. A photograph is exhibited showing a puppy with a bed and loose stuffing material strewn about. The stuffing material appears to be the same as that shown in the bin in the applicant’s photograph. The respondents’ photograph appears to have been taken on a mobile telephone and carries the date 8 May 2019.
I do not consider the events described support grounds for an extension of time. The description of events was not accepted by the respondents and there are aspects of the description that are confused. The event is described in the applicant’s own affidavits but also by the audiology report as a statement of what the applicant had told the practitioner. There are differences in the versions. However for the purposes of this application I can assume an incident occurred without the need to resolve all of the disputed evidence. The medical evidence does not in my view support a finding the applicant was so unwell as to be unable to attend to her affairs for the entire period from June 2019 to October 2019. In part, this follows from the conduct of the applicant during the relevant period May 2019 to October 2019. I have mentioned the written submissions were prepared for the Tribunal in May 2019 (after 3 May but before 27 May) and the applicant had contacted the Supreme Court by 20 June 2019.
The medical issues and the incident thought to be responsible for the diagnosis of acoustic shock do not establish a satisfactory explanation for the delay of approximately 120 days. The applicant has provided medical reports as Exhibit 9 to her November 2019 affidavit. There is a brief certificate from Dr Trina Rowland of the Toorak Clinic dated 27 June 2019 to say Ms Barter was examined on that day and is ‘considered unwell and unfit to work from 27 June 2019 to 7 July 2019’. The report does not describe symptoms or assist to say whether the causes impede any activity at all. It can be seen from correspondence with VCAT (Exhibit 8) that Ms Barter attended to inspect the VCAT file on 5 July 2019.
Exhibit 9 also includes a letter ‘to whom it may concern’ dated 10 July 2019 from South Eastern Psychology provided by Judith David, a clinical psychologist. The medical practitioner reports Ms Barter ‘continues to feel extremely overwhelmed by her legal obligations and difficulties with her neighbour.’ The certificate opines Ms Barter is unfit for work until 24 July 2019 and that the next few weeks should be used to catch up on sleep and restore her health. It can be seen that by 10 July the time limit had expired. The two weeks mentioned does not assist in explaining the delay until October 2019 in the commencement of these proceedings.
Exhibit 12 of the November 2019 affidavit includes a range of correspondence passing between the parties about issues concerning the property and work that needs to be undertaken. There is correspondence from the applicant dated 30 July 2019 and continuing through August and September 2019. This correspondence shows a level of application to the problems and concerns during the period of delay and several months prior to commencement of the appeal.
Reason for delay – obtaining legal advice
There is also evidence the applicant made contact with legal practitioners after the VCAT decision had been provided. That evidence is not consistent with a case that health issues caused the applicant to be unable to prepare the appeal, nor can it be relied upon to explain the delay from June 2019 to October 2019. The twelve-page unsworn affidavit of the applicant tendered by email on 12 May mentions at paragraph 34 that a Mr DW (name redacted in the applicant’s affidavit barring the initials) did not respond when asked for help in preparing an appeal. No date is given for that contact. Paragraph 35 refers to further contact but no date is provided. Paragraph 38 says in September 2019 HR (name similarly redacted), a barrister who is a friend of a friend, said he would help but was then not available. The last contact was 15 October 2019.
The applicant maintains her difficulties in obtaining representation are a matter to explain the delay in the appeal. I reject that submission. The respondents submit the affidavit in fact shows legal advice was given and the reality is the applicant did not accept that advice. The attempts to obtain representation and the numerous communications with legal practitioners do not warrant an extension of time.
Reason for delay – transcript of VCAT hearings
The applicant appears to place reliance on her concerns about the accuracy of the transcript. I do not consider the accuracy of the transcript is a factor on which the Court could grant an extension of time. The appeal is limited to a question of law and it would be rare that the accuracy of the transcript of the hearing at VCAT could support a question of law. Even if that could be established, the transcript is rarely, if ever, available within the 28-day period allowed for commencement of leave to appeal proceedings. The usual procedure is for the proceeding to be commenced and the directions include a timetable for the transcript to be obtained and filed for the purposes of the appeal hearing. That occurred in this proceeding.
The applicant provided an email to the Court on 21 April 2020 ‘to inform you that I have concerns about the quality of the transcript received from the VCAT transcriber’ and said ‘So far I have found many errors of attribution of speaker in day one and that days 4 and 5 are “unrevised” and have “large swathes of text that run into each other and have no speaker attribution”’. For the reasons given I do not consider those concerns are sufficiently related to any question of law that could support leave to appeal, or justify an extension of time in the circumstances of this case.
Reason for delay – inspection of VCAT file
The applicant has provided correspondence with VCAT concerning the file in relation to the VCAT proceeding. Exhibit 8 to the November 2019 affidavit includes the letter to VCAT from the applicant dated 29 July 2019 and the response from VCAT dated 3 September 2019.
The applicant attended to inspect the file on 5 July 2019. That date was shortly after the end of the 28-day period following the date of the order. The letter sent on 29 July 2019 explains not all of the file was provided and in fact large parts of the file were not available to the applicant on 5 July.
The VCAT letter recognises an error had occurred and offered an apology. A subsequent time was arranged for the inspection of the whole file. In the November 2019 affidavit the applicant refers to having completed her review of the file on 22 October 2019.
The error by VCAT is regrettable and the delay in dealing with the matter also regrettable. However, the events do not explain the delay in commencement of the appeal or justify the grant of an extension of time. The appeal is limited to a question of law. The order of VCAT and the reasons for decision were available to the applicant. The inspection of the file was not an essential or necessary step to complete prior to commencement of the appeal. The nature of the appeal and the short time allowed by the legislation for the commencement of an appeal show it is not expected that access to the Tribunal file would be required.
The applicant has included as one of the questions of law an issue of natural justice concerning the conduct of the VCAT hearing. I consider the inspection of the VCAT file was not a necessary step prior to the commencement of an appeal on this question. If there was a question of law arising from the conduct of the hearing it would be expected to be described in terms of the events of the hearing, whether the refusal to call a witness or receive some evidence or some other feature of the hearing. Such an appeal can be commenced without the need to inspect the VCAT file. There may be occasions when the file would be inspected after the appeal had been commenced, but there is no justification for a deferral of the appeal while making arrangements to inspect the file. Such a process is contrary to s 148 and does not attract the exercise of the power in the Court to grant an extension of time.
Delay – Prejudice
The respondents have submitted the prejudice occasioned to them if an extension of time were to be granted is a ground for the court to refuse an extension of time. This is accepted by many decisions.[10] In my view the delay in the commencement of this appeal has caused prejudice to the respondents and further prejudice would be caused were an extension of time to be granted. I am also of the view the proper and timely administration of justice would be impeded and adversely impacted by any extension of time.
[10] The respondents refer to Xueyue Song v Commissioner of Police [2019] VSCA 206 at [44].
The finality of court process and litigation is a further factor against the grant of an extension of time. The cases mentioned earlier in these reasons emphasise the importance of finality in this context. The provisions of the Civil Procedure Act 2010 are also relevant. In particular the legislation directs attention to the just, efficient, timely and cost-effective resolution of the real issues in dispute. The Court is directed by that legislation to exercise its powers in order to achieve the stated objectives. A grant of an extension of time would not assist those objectives and is not warranted on the facts concerning the delay and the reasons for delay advanced by the applicant.
Prospects of success of the grounds of appeal
The cases in which principles for an extension of time are considered do recognise the prospects of success of the grounds of appeal may be taken into account. In an appeal from VCAT pursuant to s 148 of the Act, the relevant question is as to the prospects of the application for leave to appeal succeeding.[11] The cases accept it is not possible to make a detailed assessment of the merits or for the parties to address the full argument on the question of prospects of success.[12]
[11]Gippsreal Ltd v Kenny [2016] VSCA 65 at [21] – although that case concerned Order 64 and leave to appeal to the Court of Appeal the principles are applicable to s 148 appeals.
[12] Trkulja v Dobrijevic [2015] VSCA 281.
In relation to leave to appeal the relevant approach may be summarised as follows:
(a) Section 148 (2A) - The Trial Division of the Supreme Court may grant an application for leave to appeal under this section only if it is satisfied the appeal has a real prospect of success; and
(b) leave to appeal decisions are recognised to be matters which require the exercise of discretion. In Department of Premier and Cabinet v Hulls[13] it was emphasised the discretion to grant leave is not fettered, and the Court of Appeal said at [9]:
As the leave is sought under s.148, that section must be the starting point for any consideration of what has to shown [sic] by an applicant seeking leave. Because an appeal under s.148 lies only on a question of law it follows that if leave is to be granted the applicant must at least identify a question of law (as distinct from a question of fact) and a question of law which is important to the appeal's succeeding or failing. Thus, if the would-be appellant seeks to have the order below set aside and reversed, the question of law must bear upon the granting of that relief. The question of law must be such that, if there is shown to be error in respect of the question, the appellant's claim to relief will thereby be advanced.
[13] [1999] VSCA 117 at [8].
The respondents submit the applicant has no prospect of successfully appealing the orders made by the Tribunal. In the circumstances, it is submitted, it would be futile to grant an extension of time. The notice of appeal lodged in October 2019 set out ten questions of law. An amended notice of appeal was filed on 13 February 2020 identifying four questions of law. The respondents submit the questions set out in the amended notice of appeal fail to identify an error of law.
For the reasons that follow, I accept the submissions of the respondents and find the amended notice of appeal does not identify any question of law with prospects of success such that an extension of time should be granted. There is no question of law such that an extension of time should be granted despite the delay.[14]
[14] Compare Muto v Department of Planning and Community Development [2013] VSCA 85 at [13] to [17].
The respondents submitted it is relevant to understand the claims made in the VCAT proceedings in order to consider the grounds of appeal and questions of law. The reasons of VCAT provide a summary of those claims at paragraphs 6, 43 and 44 of the reasons.[15] The points of claim and points of defence filed in the VCAT proceedings were also relied on by the respondents.[16]
[15] The reasons are exhibited to the November 2019 affidavit filed by the applicant.
[16]The VCAT documents were included in a bundle of documents provided to this Court by email dated 12 May 2020 for use on the hearing before me on 13 May 2020 – pages 3 to 19 of the bundle of 53 pages.
Prospects – Question of Law 1
The first question of law raised by the applicant relates to a finding as to responsibility for plumbing works. The notice of appeal sets out fifteen grounds to be relied on. Five of those (1.11 to 1.15 inclusive) relate to a question of the joinder of the Owners Corporation. There is no question of law that could be determined on this appeal relating to the fact the Owner’s Corporation was not a party to the VCAT proceeding. Those grounds are not relevant, except to indicate (as submitted by the respondents) that items 1.14 and 1.15 are not accurate and contain incorrect information.
The grounds directed to the first question of law make reference to legislative provisions such as the Owners Corporations Act 2006 and the Subdivision Act 1988, as well as dictionary definitions of ‘appurtenances’. The applicant summarised her argument in oral submissions to me as requiring consideration of definitions of terms including ‘appurtenance’, ‘building’ and ‘lot’, leading to an argument that the Tribunal was in error in its findings and conclusions about responsibility for the plumbing work. It was argued if the plumbing services were connected to the respondents’ property then it is the respondents who are responsible for maintenance and repair. That argument was summarised and addressed by the Tribunal.[17]
[17]Paragraph 72 and 73 concerning the interpretation and application of s 129 of the Owners Corporations Act 2006.
The respondents point out in their submissions the conclusion of the Tribunal has not been stated accurately in the notice of appeal, as the applicant states the first question of law. The relevant finding of the Tribunal is the respondents were not under any obligation to maintain the stormwater drains or agricultural pipes, as those pipes and drains are ‘common property serving more than just the Respondents’ Unit’.[18] The respondents submit the conclusion of the Tribunal was supported by three factual findings and does not raise any question of law.
[18] Paragraph 78 of Tribunal decision 27 May 2019.
The first factual finding related to the stormwater drainage systems and the sewerage system, which the Tribunal member described in detail in his reasons with reference to the expert evidence.[19] The second factual findings relate to the fact defective pipes identified by the experts were underground.[20] The third factual finding was the pipes service more than the respondents’ unit alone.[21]
[19] Paragraphs 18 to 31.
[20] Paragraphs 32 to 42.
[21] Paragraphs 72 to 77.
For these reasons the factual findings of the tribunal have the consequence that there is no prospect of a question of law succeeding. The factual findings have the consequence that even on the interpretation of law argued for by the applicant, her claim in this regard would fail. This is because the Tribunal has found the pipes service both units. It would only be a service that serves the respondents lot exclusively that would be the responsibility of the respondents to maintain. On the facts the Tribunal has found there is no such service. An appeal on a question of law does not arise.
Prospects – Question of Law 2
The second question of law raised by the applicant concerns the claim for liability under s 16 of the Water Act 1989. The Tribunal emphasised liability would attach to a person who caused the flow of water onto the other land.[22] At paragraphs 83 and 84 the Tribunal concluded the evidence did not establish any ‘flow’ which could attract the liability under the Act. That factual finding is fatal to this ground of appeal.
[22] Paragraphs 79 to 97.
The respondents addressed other factual findings on which the decision of the tribunal is based and which again show no question of law arises. At paragraph 87 the tribunal commented on a lack of evidence as to ‘where the water came from or when the flow of water took place’. The history of claims made by the applicant prior to the respondents becoming the owners is in part relevant to this factual inquiry. At paragraph 90 the Tribunal commented on a lack of proof of any link between items of damage and any flow for which the respondents are responsible.
No submissions made by the applicant establish a question of law relating to the Water Act 1989 claim, let alone a question with a prospect of success. The grounds of appeal numbered 2.1 to 2.13 deal with factual matters and conclusions on the evidence, including expert evidence. The grounds of appeal 2.14 to 2.16 inclusive are expressed in terms of statutory interpretation, but the factual findings by the tribunal are such that there is no question of law to be considered on the appeal. The factual findings show the claims under the Water Act 1989 could not succeed due to a lack of evidence and findings against the applicant’s version of events.
Prospects – Question of Law 3
The third question of law concerns a question of liability for rebuilding fences. Although the ground of appeal refers to the front wall and a side brick fence, it is not clear the Tribunal was concerned with a side fence at all. The findings at paragraphs 98 to 100 deal with the front wall.
The applicant’s claim filed in the VCAT proceedings refers to the front fence at clause 6 (as the crack was present when the applicant purchased in 2005). The applicant’s claim also refers to item VI on page 9 of 11 of the claim, and seeks an order that the respondents pay 50% of the cost of rebuilding that section of the front brick fence. There does not appear to be reference to a side brick fence.
The conclusion of the Tribunal to dismiss the claim for fencing costs is based on factual findings and the Member has expressed several independent grounds for the conclusion. Paragraph 98 is a factual basis for the claim to be dismissed. Paragraph 99 is a separate factual basis. The grounds of appeal and the question of law have no prospect of overturing the conclusions so stated. In paragraph 100 the Tribunal has expressed a third basis that the front wall was in existence at the time the units were subdivided. The applicant has not shown that any question of law would overturn the conclusion. The submission of the applicant is that paragraph 100 is not supported by the Fences Act 1968, the Subdivision Act 1988, or the Owners Corporations Act 2006. The absence of such support is not a basis of appeal. The applicant says in the grounds of appeal such a conclusion could lead to ‘mayhem’.
In my view the claim in relation to the front fence was correctly dismissed by the Tribunal and no question of law is presented to show a ground of appeal would have prospects of success. Even if there is an interesting question raised by paragraph 100 of the reasons of the Tribunal, it would not justify a grant of an extension of time. The other reasons expressed in paragraphs 98 and 99 are sufficient to dispose of the applicant’s claim in relation to the fence.
Prospects – Question of Law 4
The fourth question of law is expressed in general terms and asks: whether the VCAT proceeding was carried out in a fair and proper manner; and was natural justice served during the VCAT hearing and throughout the proceeding.
No grounds of appeal are included, but topics are listed as: ‘The VCAT Act’; ‘The Laws of Natural Justice’ and ‘Australian Solicitors’ Conduct Rules 2011’, with some sections mentioned, but no material particulars provided. The notice of appeal says ‘Not all aspects have been confirmed on recording – original FTR recording required for further clarification’. The grounds of appeal conclude with the statement ‘There are many, many examples within the proceeding and hearing to illustrate the grounds of appeal for question of law 4. The Appellant believes they are best elucidated within an affidavit.’
Although the proceeding was commenced in October 2019 and the Amended Notice of Appeal was filed in February 2020, no attempt has been made to clarify what is said to be the question of law, or the defect in the hearing conducted by the Tribunal. The applicant said at the hearing before me on 13 May 2020 it was not appreciated that all the detail would be required for the hearing of the extension of time application. That observation is unfortunately misdirected. The hearing did not require full details of the complaint but the applicant has failed to identify any basis on which this Court could find there is a question of law with any prospect of success. The difficulty is the statements in the notice of appeal do not identify a question of law. It is not that there is insufficient detail directed to support an identified question of law.
The respondents submit the transcript of the hearing before the Tribunal is in any event against the applicant. I do not need to review the transcript in detail because the question of law is not properly stated in the applicant’s notice. The relevant observations are the Tribunal heard the evidence over a period of nearly five days and each party was able to call witnesses and produce evidence. In the tribunal proceedings prior to the hearing the applicant had amended the claim on several occasions. The issues in dispute between the parties were identified, the evidence relied on by each party was called and heard and the tribunal determined the matter on consideration of the evidence.
The applicant disagrees with the decision but has not shown the merits of the appeal are such as to warrant an extension of time. This conclusion is in addition to the reasons given above to conclude the application for an extension of time must be refused in view of the length of the delay and the absence of proper explanation for the delay which warrants the delay being excused.
Conclusion
I conclude the application for an extension of time must be refused. That follows from my consideration of the matters advanced by the applicant to explain the delay and to justify the need for an extension of time. I consider the reasons do not establish it would be in the interests of justice to grant an extension of time. The need for finality of litigation is important and is not displaced by the matters relied on by the applicant. The prejudice that would be suffered by the respondents is a further factor.
Further, I consider the matters advanced by the applicant as the questions of law and the grounds of appeal do not have prospects of success such that it would be appropriate in the interests of justice to allow an extension of time. To the contrary, I consider the factual findings of the tribunal are against the applicant.
ORDERS
Application for an extension of time is refused.
Vacate the hearing date of 21 October 2020 and vacate the orders made on 27 November 2019 for filing of documents in preparation for that hearing.
Proceeding dismissed.
The applicant is to pay the respondents’ costs including any reserved costs on a standard basis.
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