Donevski v Woolworths Limited - [2020] VSCA 82

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2019 0105

NOVE DONEVSKI	Applicant
and
WOOLWORTHS LIMITED	First Respondent
and
DR ROBIN HUNTER	Second Respondent
and
MR KEITH ELSNER	Third Respondent

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JUDGE:	WHELAN JA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	10 February 2020
DATE OF JUDGMENT:	8 April 2020
MEDIUM NEUTRAL CITATION:	[2020] VSCA 82
JUDGMENT APPEALED FROM:	[2019] VSC 163 (Richards J)

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CIVIL PROCEDURE – Application to set aside Registrar’s refusal to extend time to file application for leave to appeal – Judicial review of determination of medical panel – Unsatisfactory explanation for lengthy delay – Proposed grounds of appeal having no prospects of success – Application refused – Gippsreal v Kenny [2016] VSCA 65, Kambouris v Kiatos [2016] VSCA 266 applied.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Applicant in person
For the First Respondent	Ms R Kaye	Meridian Lawyers
For the Second and Third Respondents	No appearance

WHELAN JA:

Mr Donevski is an older man. English is not his first language. He is the plaintiff in proceedings in the County Court against Woolworths Limited (‘Woolworths’).[1] Mr Donevski’s claim against Woolworths is that he suffered injury on 18 January 2014 while pushing a shopping trolley down a travelator.
[1]Some of the documents name the party as ‘Woolworths Group Ltd’. It is not clear whether or not that is a different entity.

In the course of the County Court proceedings, Woolworths referred a medical question to a Medical Panel, constituted by the second and third respondents, Dr Hunter and Dr Elsner. The Panel made a determination adverse to Mr Donevski and he then instituted proceedings by originating motion in this Court to have that determination set aside. On 18 March 2019 Richards J dismissed Mr Donevski’s originating motion.[2] Mr Donevski did not seek leave to appeal from that dismissal within time. He subsequently sought an extension of time which the Registrar of the Court of Appeal refused. He now seeks to set aside the Registrar’s refusal.
[2][2019] VSC 163 (‘Reasons’).

The power to set aside the Registrar’s refusal is found in Rule 64.42(8) of the Supreme Court (General Civil Procedure) Rules 2015 (‘the Rules’). Exercise of the power under this Rule requires the Court to consider the application for an extension of time afresh; it is not a review directed at determining whether or not an error has been committed by the Registrar.[3] Under Rule 64.42(9) and (10) the application to set aside the order must be dealt with on the basis of the materials which were before the Registrar unless leave of the Court of Appeal is given.
[3]Hewitt v Count Financial Ltd [2017] VSCA 354, [1].

The claim, the referral, and the medical question

Part VBA of the Wrongs Act 1958 (‘the Act’) makes provision for certain ‘thresholds’ in relation to the recovery of damages for non-economic loss on claims of the kind made by Mr Donevski against Woolworths.

Section 28LE of the Act provides that a person is not entitled…

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 Donevski v Woolworths Limited

Details

AGLC: Donevski v Woolworths Limited [2020] VSCA 82
Case: [2020] VSCA 82
Decision Date: 8 April 2020

CaseChat Overview and Summary

Donevski, the applicant, sought to appeal against the refusal of the respondent, Woolworths Limited, to extend the time to file an application for leave to appeal. The matter was before the Supreme Court of Victoria, where the applicant sought to set aside a Registrar's decision to refuse an extension of time. The applicant's initial application for leave to appeal had been dismissed for untimeliness, and this application followed, seeking to overturn that decision.

The court was required to determine whether the applicant had provided a satisfactory explanation for the delay in filing the application for leave to appeal. Additionally, the court had to consider whether the proposed grounds of appeal had any prospects of success. The court was guided by precedents such as Gippsreal v Kenny and Kambouris v Kiatos, which established criteria for setting aside decisions on time extensions in appellate matters.

The court found that the applicant's explanation for the delay was unsatisfactory and did not meet the threshold for setting aside the Registrar's decision. The court also determined that the proposed grounds of appeal lacked prospects of success. The court emphasised that the decision to extend time was discretionary and hinged on the applicant's ability to provide a compelling justification for the delay and the merits of the proposed appeal. In this case, neither criterion was met.

Accordingly, the court dismissed the application to set aside the Registrar's decision. The applicant was not granted leave to appeal the earlier decision dismissing the application for leave to appeal due to the untimeliness of the filing. The court's decision was grounded in the established principles of judicial review and the discretion afforded to the Registrar in managing the timeliness of such applications.

Orders