Bruno v R J & S M Fuller Family Partnership
[2021] VSCA 106
•28 April 2021
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S EAPCI 2020 0117
| PAUL JAMES BRUNO | Applicant |
| v | |
| R J & S M FULLER FAMILY PARTNERSHIP | Respondent |
---
| JUDGE: | BEACH JA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | Determined on the papers |
| DATE OF JUDGMENT: | 28 April 2021 |
| MEDIUM NEUTRAL CITATION: | [2021] VSCA 106 |
---
PRACTICE AND PROCEDURE – Application for extension of time within which to seek leave to appeal – Application for leave to appeal against consent order dismissing proceeding – Earlier application to reopen proceeding refused previously – Application for leave to appeal totally without merit – Extension of time futile – Application for extension of time refused.
---
| REPRESENTATION: | Counsel | Solicitors |
| For the applicant | In person | |
| For the respondent | IDP Lawyers |
BEACH JA:
In August 2018, the applicant commenced a proceeding in the Trial Division of this Court seeking damages for personal injuries he alleged he sustained in the course of his employment with the respondent. The claim related to a back injury which the applicant alleged he sustained in July 2010, when moving a trolley laden with bricks.
On 6 August 2019, the day the matter was listed for trial, the proceeding was resolved on terms that the respondent pay $600,000[1] plus costs in full settlement of the proceeding. The respondent also agreed that payments made to, or for the benefit of, the applicant under the Workplace Injury Rehabilitation and Compensation Act 2013 (‘the Act’) were to be retained by the applicant. Trial counsel for the applicant and the respondent then obtained an order by consent from the trial judge (Zammit J) that:
1.The [respondent] pay the [applicant’s] costs, including any reserved costs, on a standard basis to be taxed in default of agreement.
2.The proceeding is otherwise dismissed.
[1]In some of the material this figure has been blacked out. A possible explanation for this can be found in an affidavit of the respondent’s solicitor sworn 6 March 2020 (exhibited to another affidavit sworn 16 April 2021). In a hearing held on 14 February 2020, the applicant requested that the settlement sum be redacted. The settlement sum is, however, not confidential, and there is no basis for its nondisclosure in these reasons.
Some days later, a release in respect of the claim, prepared by the solicitors for the respondent, was emailed to the applicant. The release embodied the terms of the settlement agreed on the first day of trial. By its terms, the release released ‘the releasee[2] and the VWA[3]’ in respect of the applicant’s claim.
[2]The expression ‘releasee’ was not defined in the release, but the expression ‘release’ was defined to mean ‘Fuller Robert and Sharon of [the address of the respondent as endorsed on the writ]’. While the name of the respondent on the writ was different (RJ & SM Fuller Family Partnership), and the defined term ‘release’ was plainly meant to be ‘releasee’, on its proper construction, the release released the respondent in respect of liability arising out of the applicant’s claim in his Supreme Court proceeding.
[3]Victorian WorkCover Authority.
After expressing some dissatisfaction to his solicitors about the settlement,[4] the applicant signed the release. It was witnessed by his partner, and then returned to his solicitors. The settlement sum was then paid by the respondent in accordance with the terms of the release.
[4]To which the solicitors, in an email to the applicant, expressed ‘surprise’ because the settlement was ‘an excellent result’ obtained after the applicant had instructed his lawyers to put an offer to the respondent in the very terms of the ultimate settlement – which offer had been accepted by the respondent.
On 7 February 2020, the applicant filed a summons seeking to set aside the settlement and to ‘rerun’ the trial. In his summons, the applicant alleged that, among other things, he was bullied into the settlement, his case was sabotaged and he was misinformed about the settlement terms.
On 20 March 2020, at the conclusion of the hearing of the applicant’s summons, Ierodiaconou AsJ made orders dismissing the application.[5]
[5]Bruno v RJ & SM Fuller Family Partnership [2020] VSC 133 (‘Application Reasons’).
On 5 October 2020, the applicant sought to file an application for leave to appeal against the orders of Zammit J made some 14 months earlier. The application was accepted for filing by the Court of Appeal Registry, as having been filed on 30 October 2020. The application was accepted for filing ‘on the basis that an extension of time is required’.
On 26 March 2021, the applicant filed an application for an extension of time within which to file his application for leave to appeal. Pursuant to r 64.15(1) of the Supreme Court (General Civil Procedure) Rules 2015, the Registrar referred the extension of time application to a single judge of appeal for determination. This is the determination of that application.[6]
[6]For completeness, I record that, as the single judge of appeal to whom this matter has been referred, I did not consider that it was either necessary or desirable to have an oral hearing to deal with the application. See r 64.15(2).
In his application for leave to appeal, the applicant identifies his proposed grounds of appeal as follows:
Duress, signed a settlement under duress and undue influence. My lawyers wouldn’t represent my matter in court as advised. Consent order lodged without my consent. Bullied into signing a deed because of the consent order. Lied to about the terms of settlement. Still do not understand the deed of release. I was bullied as a child which stopped me having education from school. My lawyers and defendants have psychologically abused me into minimising my matter.
With respect to his application for an extension of time within which to seek leave to appeal, the applicant appended six handwritten pages under the heading ‘grounds for application’. Those grounds seek to agitate the following issues:
·the consent order was entered into without the applicant’s consent;
·the settlement has never been explained to the applicant;
·there has been ‘unconscionable bargaining’, ‘undue influence’ and ‘duress’;
·the applicant ‘lacked the capacity to undergo settlement’;
·the applicant’s solicitors did not accept his instructions, and instead ‘teamed up with [the respondent] to gain settlement’;
·the applicant was bullied;
·the respondent ‘managed to get [the applicant’s] lawyers in their pocket through offering to pay legal costs to minimise [the applicant’s] matter’.
The application before Associate Justice Ierodiaconou
Ierodiaconou AsJ described the application made before her, in March 2020, as one made by the applicant to reinstate his proceeding and to reopen his case. As her Honour noted, the proceeding had in fact been ‘dismissed by consent orders and without adjudication in August 2019’.[7] The associate judge then dealt with the evidence in relation to that application. The evidence was constituted by three affidavits sworn by the applicant, and one affidavit sworn by a solicitor for the respondent.
[7]Application Reasons [1].
Having analysed the evidence and relevant principles, her Honour ultimately concluded:
There is no evidence of ‘illegality, misrepresentation, non-disclosure of a material fact where disclosure is required, duress, mistake, undue influence, abuse of confidence or the like’ by [the respondent].[8]
[8]Ibid [37].
Additionally, her Honour concluded that there was no evidence that the respondent had failed to comply with the terms of settlement. Indeed, as her Honour put it, ‘it [was] common ground that the settlement monies had been paid to [the applicant]’.[9]
[9]Ibid [38].
The application in this Court
In this Court, in addition to the three affidavits he relied upon in his application before Ierodiaconou AsJ, the applicant relied upon a fourth affidavit dated 15 March 2021.[10] The applicant’s fourth affidavit referred to many complaints he had already made in his earlier affidavits. In submissions in support of his application for an extension of time, the applicant identified ten firms of solicitors who he had ‘tried to obtain unsuccessfully’.[11]
[10]This affidavit appears to have been either sworn or affirmed on 26 March 2021.
[11]The applicant identified these lawyers as Slater & Gordon Legal, Arnold Thomas & Becker, Shine Lawyers, Zaparas Lawyers, Go To Court Lawyers, Maurice Blackburn Lawyers, Carbone Lawyers, Polaris Lawyers, Maxiom Injury Lawyers and Advice Line Injury Lawyers.
In the application before Ierodiaconou AsJ, the respondent relied upon an affidavit sworn by its solicitor as to the circumstances in which settlement was achieved and the consent order was made on 6 August 2019. In essence, the solicitor deposed to offers being exchanged between counsel before an agreement was reached, and the parties then going into court to obtain the consent order. The affidavit relied upon in the hearing before the associate judge was exhibited to an affidavit sworn 16 April 2021 and filed in this Court.
Should an extension of time be granted?
The factors that are relevant to the exercise of this Court’s discretion to extend time for the filing of an application for leave to appeal include the length of the delay, the reasons for the delay, the prospects of the application for leave to appeal succeeding and the extent of any prejudice to the respondent.[12] In the present case, it is the lack of any prospects of success on the application for leave to appeal which is determinative of the application for an extension of time.
[12]Deak-Fabrikant v Grech [2016] VSCA 118, [34].
The settlement of the applicant’s proceeding was entered into when he was represented by solicitors and counsel who had both ostensible and actual authority in relation to the matter. There was, and is, nothing irregular about the consent order that was made. It was not attended with any error or defect. The applicant has not shown any basis upon which it could now be set aside. The applicant has already unsuccessfully sought to set aside the settlement, and the release subsequently signed by him. There is no basis upon which he may now agitate that matter a second time in seeking leave to appeal from the consent order.
In relation to the applicant’s contention that his solicitors ‘teamed up with [the respondent] to gain settlement’, the applicant asserted that the respondent ‘offered to pay all of their [the applicant’s solicitors’] costs to gain settlement’. To the extent that the applicant’s submissions contained a suggestion that the settlement was achieved by the respondent offering to pay the applicant’s solicitors more than they were entitled to for costs, that suggestion is not borne out by the terms of the release which provides for the applicant’s costs to be paid as follows:
·Pursuant to any applicable Legal Costs Order, subject to and in accordance with that Order; and
·Otherwise, the costs of the damages action on a standard basis according to the applicable court scale of costs, subject to the provisions of section 344(5) of the Act, to be assessed by the costs court in default of agreement.
Like a number of the high level assertions made by the applicant in his material, for which there is no foundation, there is simply no support in the evidence for the assertions made by the applicant about his solicitors’ conduct being compromised by offers, made in the proceeding, which included the payment of the applicant’s costs.
That said, if the applicant has any remedy against any party (about which it is neither necessary nor appropriate for me to express any view on this application) it is not against the respondent in relation to the settlement or the consent order. The applicant’s proposed appeal against the consent order made on 6 August 2019 does not have any real prospect of success.[13] It is also totally without merit within the meaning of s 14D(3) of the Supreme Court Act 1986. As such, granting the application for an extension of time would be futile. It follows that the application must be refused.
[13]See s 14C of the Supreme Court Act 1986.
Having regard to this conclusion, it is not necessary to consider the length of the applicant’s delay or the reasons for that delay or the extent of any prejudice that might be suffered by the respondent if the application were to be granted. I should observe for completeness, however, that the applicant has had the benefit of the settlement sum ($600,000) since September 2019. Whether the applicant is in a position to repay the settlement monies with restitutionary interest pending any rerunning of his proceeding, however, is not a matter about which there was any evidence on this application.
Conclusion
The application for an extension of time within which to seek leave to appeal from the orders made in the Trial Division on 6 August 2019 will be refused.
- - -
0
2
0