Davies v Transport Accident Commission

[2000] VSC 379

SUPREME COURT OF VICTORIA          

Not Restricted

PRACTICE COURT

No. 5815 of 1999

BARRY PERCIVAL DAVIES	Applicant
v
TRANSPORT ACCIDENT COMMISSION	Defendant

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JUDGE:	Eames J
WHERE HELD:	Melbourne
DATE OF HEARING:	18 September 2000
DATE OF JUDGMENT:	18 September 2000
CASE MAY BE CITED AS:	Davies v Transport Accident Commission
MEDIUM NEUTRAL CITATION:	[2000] VSC 379

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Appeal - Application for extension of time in which to institute appeal after a grant of leave to appeal - Victorian Civil and Administrative Tribunal Act 1998, ss.148(1),(3),(5) - Delay due to fault of applicant's solicitors.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Ms S.E. Cure	Mitchell McKenzie & Co
For the Defendant	Mr I. Miller	TAC Law Pty Ltd

HIS HONOUR:

1. This is an application for an extension of time in which to institute an appeal following a grant of leave to appeal made by a Master pursuant to s.148(1)(b) of the Victorian Civil and Administrative Tribunal Act 1998.

1. In this case the applicant applied to VCAT to review a decision of the Transport Accident Commission made on 24 September 1997 assessing his whole body impairment at 34%.  The application was heard by Ms Davis, a Deputy President of VCAT, over some eight days and her decision was given on 24 May 1999, whereby the Deputy President set aside the decision of the Transport Accident Commission and substituted a determination of 46% whole body impairment.  It is to be noted the applicant sought before the Tribunal a determination that whole body impairment was 50% or worse, and I have been told, and it is not a matter of dispute, that one consequence of the higher award would be reflected in the period of time beyond three years that weekly payments would be able to continue, but in any event an increase in the percentage determination of impairment itself has some bearing on a lump sum entitlement of an applicant under the relevant legislation. 

1. It is important to note that the transport accident which gives rise to these proceedings and gave rise to the claim below occurred on 6 November 1993. 

1. On 17 December 1999, Master Wheeler granted leave to appeal to the Supreme Court, but he expressly confined the grant of leave to four specific questions of law and he also made an order that the decision be subject to the filing of an affidavit properly exhibiting the necessary exhibits together with exhibit notes.  In the course of argument that issue has been discussed and it is not in dispute that the concern being expressed there by the Master as to the affidavit was more concerned with form than with substance. 

1. Leave to appeal having been granted, s.148(3) of the VCAT Act provides:  "If leave is granted the appeal must be instituted (a) no later than 14 days after the date on which leave is granted; and (b) in accordance with the Rules of the Supreme Court."

1. There is no dispute that the appeal here was not properly instituted, or at all, pursuant to sub-s.(3) of that section.  A document titled "Notice of Appeal" was, however, filed on 26 July 2000, almost seven months after the grant of leave.  Not only was the notice well outside the 14-day time limit, it failed to frankly disclose that fact, making no reference to the orders of Master Wheeler or the dates on which they were made.  Additionally, the notice of appeal entirely ignored the questions of law on which leave had been granted and to which leave had been limited and raised twelve purported questions of law which were supported by a plethora of grounds of appeal over some six pages complaining in detailed terms of suggested failures of the Deputy President in dealing with the evidence.

1. The new grounds of appeal were not in my view grounds of appeal at all and were merely those of a variety frequently both experienced and criticised by appellate courts as amounting to no more than an attempt to review and re-hear the facts of the case.  I was told, however, that the applicant no longer relies on those grounds, that this application is simply to have leave beyond the 14 days to institute that appeal on which leave was granted and in those terms and on those questions of law on which leave to appeal was granted by Master Wheeler.  So then the application is to be understood as confined to those questions of law which have been determined by Master Wheeler to be arguable grounds of law. 

1. On 15 August this year the matter came before Master Wheeler for directions, and he referred the matter to the Practice Court having heard an application that the time under s.148(3) be extended and having doubted whether the Master had authority or power to extend time under that provision.

1. This application is now before me and it is opposed by the Transport Accident Commission.  A number of matters have been raised in the course of argument.  It is submitted on behalf of the defendant, firstly, that the time period which is involved here is a remarkable one.  It is pointed out that not only was the accident in 1993, the hearing was in March and April 1999, the decision was in May 1999, and so some 17 months have elapsed from the time of the decision of the Tribunal and the application now before me.  The delay of close to seven months from the time of the order of Master Wheeler is obviously a substantial one.  It is pointed out that the grounds of appeal which were approved by the Master were simply ignored in the way that I have described by a document which is no longer being sought to be pursued. 

1. Mr Miller, for the TAC, submitted that it was a relevant consideration to have regard to the prospects of success in this case and submitted that a reading of the case would suggest that the prospects of success should be regarded as limited. He submitted further that, the steps under s.148(3) not having been taken, it could not be said that there was now an appeal before the court and, at best, there was a further application for leave, in which case the merits must be determined as a relevant factor.

1. I digress to say that, with regard to that argument, I do not agree that this is a matter in which leave to appeal is before me again.  In my view leave has been granted.  The only issue is whether the time for the institution of that appeal, as required by sub‑s.(3), should be extended beyond 14 days so as to enable it now to be done.

1. Mr Miller submitted that the affidavit material before me was not sufficiently frank in detail to provide reasons for the delay;  there was no clear statement in the affidavit as to why Master Wheeler's orders were not complied with.  As I said in the course of argument, it seems to me that the material in that regard is sufficiently frank for me to conclude that it would not be arguing otherwise than that the failure, as I will shortly describe, is entirely at the feet of the solicitors in the case. 

1. On behalf of the applicant, a solicitor, James Crowther, in an affidavit sworn on 8 September 2000, sets out the circumstances which led to the failure to institute the appeal. The case was initially handled by Philip Duffy, an employee solicitor in the Echuca branch of the firm of solicitors. He referred the file to the Melbourne office in June 1999, after instituting an application for leave to appeal by originating motion. Mr Duffy himself swore three affidavits in support of that application. From the Melbourne office, the solicitor who had control of the file, one Ralph Breisch, attended before Master Wheeler but returned the file to Echuca in December 1999 without attending to the matters which Master Wheeler had directed required to be done, and without attending to the requirements of s.148(3). Mr Duffy resigned from the firm in June 2000. Mr Breisch resigned more recently from the firm; the precise date I do not know. Between them, neither attended to the matters which were required to be attended to pursuant to the orders of the Master and the provisions of the Act. The deponent, having become aware of the problem, now has brought this application for an extension of time under the sub-section.

1. It seems to me the failure to institute the appeal is plainly no fault of the applicant's.  He is the victim of what, on the face of it, is plain negligence of his solicitors in complying with the requirements that I have described.  That in my view is a significant factor in favour of granting the extension of time.  It is, of course, not the sole consideration.  I was referred by counsel in their helpful submissions to a number of authorities relevant to the principles which I should apply in considering the application.  I refer to just a couple of the cases which were cited to me.  In Jackamarra v. Krakouer and Another (1998) 153 A.L.R. 276, Brennan and McHugh, JJ., at 278 in a joint judgment, said this:

"When the application for an extension of time merely concerns the doing of an act in respect of an appeal already lodged, as the present case does, an even more liberal approach is justified.  The court is dealing with a pure procedural question, i.e. should time be extended.  The merits of the appeal do not furnish the criteria for granting or refusing an extension.  The appeal was already filed in the court.  In most, if not all, cases concerned with the doing of an act in respect of a pending appeal, the only issues would seem to be the length of time that the breach of the procedural rule has continued, the reasons for the breach and, most importantly, whether the respondent or the administration of the court's business would be prejudiced by granting the application."

1. In his judgment in the same case, Kirby, J. referred with approval to the principles set out by the Full Court in Western Australia in Esther Investments Pty Ltd v. Markalinga Pty Ltd (1989) 2 W.A.R. 196. There, the relevant considerations were identified as being the length of delay, the reason for the delay, whether there was an arguable case for appeal, and the extent of prejudice suffered by the respondent.

1. On behalf of the applicant, Ms Cure in her helpful argument submitted that the question of the need to establish an arguable case for appeal should be regarded as one which places a very minimal burden on an applicant, especially in circumstances where leave has been granted by a Master, the Master having determined that there were arguable grounds of appeal on the grounds for which he granted leave.

1. Kirby, J., in considering those four matters identified in the Esther Investments case, said, at p.297 of Jackamarra, speaking of the decision in Pilata Investments v Burt and Sinfield Limited (1985) 1 WLR 942:

"I would point out that Pilata Investments was concerned with an application for an extension of time for appealing, not for extending the period within which an appeal already lodged within time might be entered for hearing.  The distinction is important."

1. His Honour then discusses the case of Esther Investments.  He said:

"The main object of the scrutiny is to obviate a hearing which would clearly be futile or to  reinforce a preliminary view that a time default should be cured because of the apparent merits or arguability of the matter.  I do not doubt that the four considerations mentioned in Esther Investments are relevant, but they are by no means exhaustive.  Several others have from time to time been thought relevant.  These include whether the delay was intentional or contumelious or merely the result of a bona fide mistake or blunder;  and whether the delay is that of the litigant or of his lawyers and with which the litigant should not be saddled.  It may also be relevant, where the default is that of the party's legal representatives, to take into account any considerations personal to the party which might have affected its ability to safeguard its own interests, for example by applying pressure to its lawyers. Similarly, the extent to which any such prejudice may be remedied by an appropriate costs order is another consideration that has sometimes been treated as relevant."

1. His Honour in his judgment sets out a series of issues which are relevant to be taken into account in an application such as this.  He summarises the situation, at p.294, in the following terms: 

"The first rule of such applications is 'that there are no rigid rules'".

1. I have a very wide discretion under s.148(5) to grant extension of time for any act which is required to be done under that section. I have noted that there are a number of relevant factors here: the considerable delay in time, on the one hand; on the other hand, it is not the fault of the applicant that he finds himself in this situation.

1. In my view, it has not been demonstrated that there is any substantial prejudice to the defendant, which is a major corporation.  In my view, the prejudice that it suffers is that suffered by all litigants who miss an opportunity to defeat an opponent's claim by virtue of a failure to comply with time limits, but otherwise no prejudice is pointed to nor could be found. 

1. In my view, whilst it is not spelled out precisely what the prejudice might be to the plaintiff, it is fair to say that where someone has a right of appeal and that is lost, then, by virtue of the loss of a chance of success on the appeal, that alone is plain prejudice.

1. As to the merits of the grounds, in so far as that is a relevant issue, it seems to me the matter is sufficiently determined by the decision of Master Wheeler;  but, in so far as it would be necessary for me to consider the issue separately, I observe that I have read the decision from the Tribunal below, which runs into some 25 pages, and, having read the grounds of appeal approved by the Master, that would not lead me to conclude that his conclusion that there were arguable grounds of appeal was clearly wrong.  It seems to me on the face of it I should be satisfied, and I am, that, by virtue of the decision of Master Wheeler, there are arguable grounds of appeal.

1. These are balancing exercises.  There are no golden rules that apply.  It is made clear, now, that no attempt will be made to extend the grounds of appeal beyond those which have been approved by the Master.  That, in my opinion, is a significant factor here supporting the granting of the application.

1. The application for an extension of time under s.148(3) for the institution of the appeal will be granted.

(Discussion ensued.)

HIS HONOUR:  I will make the following orders:

1.I order that the applicant's application for an extension of time made pursuant to s.148(5) of the Victorian Civil and Administrative Tribunal Act 1998 be granted.

2.I order that the applicant file and serve the notice of appeal and affidavit in support, in accordance with Master Wheeler's order dated 17 December 1999, by 29 September 2000.

3.I order that the matter be referred back to Master Wheeler for further directions to be held on 18 October 2000. 4. I order that the applicant's solicitor pay the respondent's costs of this application.

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