Bunney v Ryan - [2018] VSCA 326

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2018 0002

MATTHEW BUNNEY	Applicant
v
GARY FRANCIS RYAN	Respondent

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JUDGES:	NIALL JA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	Determined on the papers
DATE OF JUDGMENT:	6 December 2018
MEDIUM NEUTRAL CITATION:	[2018] VSCA 326
JUDGMENT APPEALED FROM:	Bunney v Ryan (Unreported, Victorian Court of Appeal, Irving JR, 3 April 2018)

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PRACTICE AND PROCEDURE – Leave to appeal – Application for extension of time –Review of decision of Registrar refusing extension of time – Delay of 31 months – No adequate reasons for delay – No prejudice to respondent – Proposed appeal devoid of merit – Application refused – Supreme Court (General Civil Procedure) Rules 2015 r 64.42.

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APPEARANCES:	Counsel	Solicitors
No appearances

NIALL JA:

This is a review of a decision of a registrar of this Court refusing the applicant an extension of time to file an application for leave to appeal. The applicant seeks to appeal against orders made by a judge of the County Court on 8 May 2015.[1]
[1]Bunney v Ryan (Unreported, County Court of Victoria, Judge Wischusen, 8 May 2015) (‘Reasons’).

For the reasons that follow, I am of the view that the application to set aside the decision of the registrar must be refused.

The County Court proceeding

The applicant was employed as a truck jockey in the respondent’s furniture removal company.[2] On the applicant’s account, on 4 October 2007, he was assisting a co-worker to load a refrigerator unit onto the back of a truck when a gust of wind blew the door of the truck. The door hit the left side of the applicant’s head and upper chest, causing him to fall against the right rear side of the truck and then onto the forks of an adjacent forklift. He lost consciousness for 10 seconds. When he stood up, he felt pain in the right side of his chest as well as in his right hip and knee.[3]
[2]Reasons [9].
[3]Reasons [11]–[12].

The applicant sought leave pursuant to s 134AB of the Accident Compensation Act 1985 (‘Act’) to bring a proceeding for damages for pain and suffering and loss of earnings consequent on the injury he sustained in the accident.[4] Section 134AB sets out pre-conditions for the recovery of damages in respect of injuries sustained out of or in the course of employment. Relevantly, pursuant to sub-s (2), the applicant would be entitled to recover damages if the injury he sustained was a ‘serious injury’. That term is defined to include a ‘permanent serious impairment or loss of a body function’ (paragraph (a)) and a ‘permanent severe mental or permanent severe behavioural disturbance or disorder’ (paragraph (c)).[5]
[4]Reasons [1]–[2].
[5]Act s 134AB(37).

The applicant (who was unrepresented) filed affidavits and particulars of injury in which he described the injuries he allegedly sustained as a result of the accident.[6] The judge took the applicant to be identifying six ‘impairments’ within the meaning of paragraph (a) and chronic pain syndrome as…

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 Bunney v Ryan

Details

AGLC: Bunney v Ryan [2018] VSCA 326
Case: [2018] VSCA 326
Decision Date: 6 December 2018

CaseChat Overview and Summary

The case of Bunney v Ryan involved an application for leave to appeal and an extension of time, which was subsequently denied by the court. The application for an extension of time was made in relation to a decision of the Registrar that had previously refused such an extension. The delay in lodging the application amounted to 31 months, with no adequate reasons provided for the delay. The respondent was not prejudiced by this delay, and the proposed appeal was considered devoid of merit.

The legal issues before the court included whether the application for leave to appeal and an extension of time should be granted, despite the significant delay and lack of justification. The court was also required to determine whether the Registrar's decision to refuse the extension of time was correct, and if there was any prejudice to the respondent that would warrant reconsideration. Furthermore, the court needed to assess the merits of the proposed appeal.

The court held that the delay in lodging the application for an extension of time was substantial and unjustified. The applicant had not provided adequate reasons for the delay, nor had they demonstrated any prejudice to the respondent as a result of this delay. Additionally, the proposed appeal was found to be devoid of merit. Consequently, the court refused the application for leave to appeal and the extension of time, affirming the Registrar's decision. The court noted that such delays and lack of justification could not be overlooked, particularly when no prejudice was shown and the appeal lacked merit.

Orders