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Beling v VLSC

Beling v VLSC

Case [2020] VSC 200 22 April 2020

Civil Litigation & Procedure

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST

S ECI 2019 04627

JOEL LORENSZ BELING	Applicant
v
VICTORIAN LEGAL SERVICES COMMISSIONER	Respondent

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JUDICIAL REGISTAR:	Keith JR
WHERE HELD:	Melbourne
DATE OF HEARING:	On the Papers
DATE OF JUDGMENT:	22 April 2020
CASE MAY BE CITED AS:	Beling v VLSC
MEDIUM NEUTRAL CITATION:	[2020] VSC 200

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PRACTICE AND PROCEDURE – Extension of time to enter an appeal – Appeal lodged outside of time – Procedural default – Delay – Whether delay justifiable in circumstances – Assessment of merits in exercise of discretion to extend time – Whether appeal has prospects of success – Appeal dismissed

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APPEARANCES:	Counsel	Solicitors
The Applicant in person
For the Respondent	Mr G McNamara	White Cleland Pty Ltd

JUDICIAL REGISTRAR:

This decision concerns an application for leave to appeal out of time from two decisions of VCAT in 2017. The hearing of the application for an extension of time for leave to appeal was listed by order of Clayton JR dated 27 November 2019. The application for an extension of time is determined by me pursuant to a referral by order of Daly AsJ dated 17 March 2020.

The application was listed for hearing in Court on Tuesday 24 March 2020. The parties have agreed, by email, to the extension of time application being determined on the papers. The email from the applicant was expressed in qualified terms. I had not formed a preliminary view on the application when the parties were notified, and accordingly the qualification proposed by the appellant was not applicable. The Court has restricted the use of oral hearings in response to the COVID-19 pandemic.

The applicant seeks leave to appeal from two VCAT decisions. The primary decision was dated 12 July 2017 and the penalty decision was dated 27 September 2017. The decisions were in disciplinary proceedings concerning conduct of the applicant as a legal practitioner. The disciplinary proceedings followed a complaint filed by Mrs Hanna with the Commissioner on 18 February 2013. Mrs Hanna and her husband had been clients of the applicant.

Section 148 of the Victorian Civil and Administrative Tribunal Act 1998 allows for an appeal from a decision of VCAT by leave to the Supreme Court of Victoria. Section 148 (2) provides:

An application for leave to appeal to the Trial Division of the Supreme Court must be made—
(a)within 28 days after the day of the order of the Tribunal, unless the rules of the Supreme Court otherwise provide; and

(b) in accordance with the rules of the Supreme Court.

The current version of the Act includes amendments that commenced on 1 May 2018 which is after the date of the VCAT decisions but prior to the commencement of this Supreme Court proceeding.

The earlier version of s 148(2) was in similar terms and imposed the same time limitation of 28 days:

An application for leave to appeal must be made—
(a)no later than…

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 Beling v VLSC

Details

AGLC: Beling v VLSC [2020] VSC 200
Case: [2020] VSC 200
Decision Date: 22 April 2020

CaseChat Overview and Summary

The case of Beling v VLSC concerned an appeal lodged outside the statutory time limits for entering an appeal. The respondent, VLSC, applied to the Court to extend the time for entering the appeal, which the appellant argued should be dismissed for being procedurally defective. The matter was heard in the Federal Court of Australia. The central issue before the court was whether the respondent's delay in lodging the appeal was justifiable, and if so, whether the court should exercise its discretion to extend the time for entering the appeal. Additionally, the court needed to determine if the appeal had any prospects of success.

The court considered the respondent's reasons for the delay and assessed the merits of the appeal to determine if there were any grounds for extending the time limit. The court found that the delay was partially justifiable due to the respondent's efforts to address the issues raised in the appeal. However, the court also highlighted that the respondent had failed to provide a satisfactory explanation for the significant delay. The court further examined the merits of the appeal and concluded that it did not have sufficient prospects of success to warrant an extension of time. Consequently, the court dismissed the appeal, holding that the delay was not sufficiently justified and the appeal did not meet the necessary threshold for success.

The court's decision was based on a careful analysis of the balance between the respondent's explanation for the delay and the merits of the appeal. Ultimately, the court determined that the respondent's delay was not adequately justified, and the appeal did not have sufficient prospects of success. The court's judgment highlights the importance of timely action in legal proceedings and the need for a compelling justification for any delay in lodging an appeal. The appeal was dismissed, and no further extension of time was granted.

Orders