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:

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.

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.

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.

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.

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."

There is no dispute that the appeal here was not properly instituted, or at all,…

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.

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Details

Case: [2000] VSC 379
Decision Date: 18 September 2000

CaseChat Overview and Summary

Davies appealed against a decision of the VCAT, seeking an extension of time in which to institute the appeal. The appeal was lodged beyond the statutory 28-day time limit. The delay in lodging the appeal was due to the fault of the applicant's solicitors. The Transport Accident Commission opposed the application for an extension of time. The central legal issues before the court were whether the delay in lodging the appeal could be attributed to the fault of the applicant's solicitors, and whether the court should exercise its discretion to extend the time limit under section 148(5) of the Victorian Civil and Administrative Tribunal Act 1998.

The court found that the delay in lodging the appeal was indeed due to the fault of the applicant's solicitors. The solicitors had failed to properly manage the client's affairs, leading to the late filing of the appeal. Despite this, the court considered the criteria set out in section 148(5) of the Act. The court determined that while the delay was due to the solicitors' fault, it was not an insuperable obstacle to the hearing of the appeal. The court also considered the merits of the case, the potential prejudice to the respondent, and the public interest in the timely resolution of disputes. In light of these factors, the court exercised its discretion to grant an extension of time, allowing the appeal to proceed.

The court ordered that the time limit for lodging the appeal be extended, and the appeal was permitted to proceed. The court emphasised that this was an exceptional case, and the granting of an extension of time should not be seen as a precedent for future cases where similar delays occur. The court warned that in future cases, the fault of solicitors might not necessarily lead to an extension of time. The court also noted that the granting of an extension of time did not affect the merits of the case or the arguments that would be presented in the appeal. The appeal was thus allowed to proceed within the extended timeframe.

Orders