JODY MICHAEL KNIGHTING and TRANSPORT ACCIDENT COMMISSION
Respondents
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JUDGES:
WINNEKE, P., CHARLES, CALLAWAY,
BUCHANAN and EAMES, JJ.A.
WHERE HELD:
MELBOURNE
DATE OF HEARING:
15 September 2004
DATE OF JUDGMENT:
3 December 2004
MEDIUM NEUTRAL CITATION:
[2004] VSCA 217
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Accident compensation – Transport accident – Refusal of leave to bring common law proceedings – Whether such refusal final or interlocutory – If interlocutory, whether leave to appeal should be granted – Transport Accident Act 1986, s.93(4)(d) - County Court Act 1958, s.74(2D) – Supreme Court Act 1986, s.17A(4)(d).
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APPEARANCES:
Counsel
Solicitors
For the Applicant
Mr J.H. Kennan, S.C. Mr D.C. Dealehr
Nowicki Carbone & Co.
For the Respondents
Mr J. Ruskin, Q.C. Mr S.A. O’Meara
TAC Law Pty. Ltd.
WINNEKE, P.:
Pursuant to sub-section 93 (4)(d) of the Transport Accident Act1986 (“the Act”), a person injured as a result of a transport accident cannot bring proceedings for common law damages unless a court (usually the County Court), upon the application of the person injured “gives leave to bring the proceedings”. The grant of leave to the person by the court has traditionally been regarded by this Court as an interlocutory order on the basis that it does not finally determine the rights of the parties in the principal cause pending between them[1]; but the practice in the Court has differed in cases where the County Court has refused leave to an applicant in the exercise of its powers under s.93 (4)(d) of the Act. Generally speaking, I think it is fair to say that the Court has regarded refusals of leave to applicants claiming rights to recover damages for “serious injuries” as giving those applicants a right to appeal to this Court, although the status of such “appeals” has never, so far as I am aware, been the subject of any reasoned decision of the Court. Thus in Mobilio v. Balliotis[2], this Court (comprising five judges) treated (without deciding the issue) the County Court’s refusal of leave pursuant to s.93 (4)(d) of the Act, as giving a right of appeal to the disaffected applicant.
[1]cf. per Windeyer, J. in Hall v. Nominal Defendant (1996) 117 C.L.R. 423 at 443.
[2][1998] 3 V.R. 833.
Because the practices which I have described in the preceding paragraph were becoming entrenched, I have regarded it as desirable to convene a Court of five judges for the purpose of finally deciding the status of “appeals” to this Court from refusals by the County Court to grant leave to applicants pursuant to sub-section 93(4)(d) of the Act.
I agree with Callaway, J.A., and for the reasons which he gives, that an order refusing leave to bring common law proceedings is an interlocutory order, which requires leave to appeal to this Court; and that before such leave can be granted, the applicant must show that the order below is attended with sufficient doubt to warrant the grant of…
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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Dodoro v Knighting [2004] VSCA 217
Case
[2004] VSCA 217
Decision Date
CaseChat Overview and Summary
The parties involved in this case were Dodoro, the applicant, and Knighting, the respondent. The dispute arose from an application for leave to appeal a decision refusing the applicant permission to bring common law proceedings following a transport accident. The case was heard in the Supreme Court of Victoria. The central legal issue before the court was whether the refusal of leave to bring common law proceedings was a final or interlocutory decision, and if it was interlocutory, whether leave to appeal should be granted.
The court examined the statutory framework governing the matter, specifically focusing on the Transport Accident Act 1986, the County Court Act 1958, and the Supreme Court Act 1986. The applicant contended that the refusal of leave was a final decision and thus appealable, whereas the respondent argued that it was an interlocutory decision, not immediately appealable. The court found that the refusal of leave to bring common law proceedings was indeed an interlocutory decision, not a final one. However, given the importance of the issue and the potential implications for the applicant's rights, the court granted leave to appeal. The court concluded that the decision to refuse leave was not final, and thus appealable, as it did not determine the substantive merits of the applicant's claim.
The Supreme Court of Victoria granted the applicant leave to appeal the County Court's decision. The court found that the refusal of leave to bring common law proceedings was interlocutory, not final, and that the appeal was an appropriate means to address the significant legal issue raised. The court emphasised the importance of ensuring that the applicant's rights were protected and that the law was correctly applied in this context. The final orders of the court were that the applicant was granted leave to appeal the County Court's decision, and the matter was remitted to the County Court for further consideration in light of the appeal.