Edwards v Transport Accident Commission - [2013] VSC 557

Do Not Send for Reporting
IN THE SUPREME COURT OF VICTORIA		Not Restricted

AT MELBOURNE

COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEAL LIST

SCI 2013 03547

XAVIER PETER EDWARDS	Plaintiff
and
TRANSPORT ACCIDENT COMMISSION	Defendant

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JUDGE:	DERHAM AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	16 October 2013
DATE OF JUDGMENT:	18 October 2013
CASE MAY BE CITED AS:	Edwards v Transport Accident Commission
MEDIUM NEUTRAL CITATION:	[2013] VSC 557

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ADMINISTRATIVE LAW — Victorian Civil and Administrative Tribunal —Extension of time for leave to appeal — Discretion — Relevant factors – Inordinate delay (19 months) with knowledge of entitlement to appeal – No real or significant argument on a question of law on appeal - Victorian Civil and Administrative Tribunal Act 1998 s 148 — Transport Accident Act 1998 s 40 — Extension of time refused.

EVIDENCE — without prejudice privilege — whether communications involve an attempt to negotiate a settlement of a dispute — Whether within s 131 of the Evidence Act 2008 (Vic) — Whether exception in s 131 (g) applicable — no privilege applying.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr Xavier Edwards, in person
For the Respondents	Mr Jason Pizer	Solicitor to the Transport Accident Commission

HIS HONOUR:

Introduction

The plaintiff applies by Originating Motion filed on 11 July 2013 to extend the time for leave to appeal, and if that extension is given, for leave to appeal, a decision of Deputy President MF Macnamara of the Victorian Civil and Administrative Tribunal (VCAT) made on 1 December 2011. The applications are made under s 148 of the Victorian Civil and Administrative Tribunal Act 1998 (VCAT Act).

Background

Mr Edwards sought an award of loss of earnings benefit arising out of a transport accident in which he was involved whilst riding his motorcycle on 3 January 2008. The Transport Accident Commission (TAC) accepted liability to pay him certain medical and like expenses, but denied liability to pay him loss of earnings benefits. Its refusal to pay those benefits was based upon section 40(1)(b) of the Transport Accident Act 1986 (the TAC Act).

Mr Edwards applied to VCAT for a review of TAC’s decision under s 77 of the TAC Act. The main question before the VCAT was whether the relevant transport accident charge had been paid by or on behalf of Mr Edwards as owner of the motorcycle when the transport accident occurred.

The registration fee, transport accident charge and VicRoads fee had been purportedly met at the time the motorcycle was re-registered in 2007 by the drawing of a cheque on an account in the name of Czane Property Association Inc. The cheque was dishonoured. The evidence given by Mr Edwards was to the effect that he did not know, at the time of his accident, that the cheque had not been honoured.[1] He believed the registration of the motorcycle and the transport accident charge had been paid. There was a serious attack on Mr…

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: [2013] VSC 557
Decision Date: 18 October 2013

CaseChat Overview and Summary

The plaintiff sought an extension of time to appeal against a decision of the Victorian Civil and Administrative Tribunal, which had dismissed her claim for damages. The appeal was brought under the Transport Accident Act 1998 and the Victorian Civil and Administrative Tribunal Act 1998. The primary issue before the court was whether the tribunal should exercise its discretion to extend the time for the plaintiff to lodge an appeal, despite the 19-month delay. The court was also required to determine whether certain communications between the parties were covered by the without prejudice privilege under the Evidence Act 2008 (Vic).

The court examined the relevant statutory provisions and found that the tribunal had the discretion to extend the time for an appeal if satisfied that there was a sufficient reason for the delay. However, the court noted that the plaintiff had been aware of her right to appeal for some time but had not acted promptly. The court also found that the communications in question were not attempts to negotiate a settlement and therefore were not covered by the without prejudice privilege. The court concluded that the plaintiff had not provided a real or significant argument on a question of law for the appeal and that the delay was inordinate.

In light of the above, the court exercised its discretion under section 148 of the Victorian Civil and Administrative Tribunal Act 1998 and section 40 of the Transport Accident Act 1998 and refused the plaintiff's application for an extension of time to appeal. The court found that the delay was unjustified and that the plaintiff had not demonstrated any real or significant argument on a question of law for the appeal. The court also noted that the without prejudice privilege did not apply to the communications in question.

The court did not make any orders in relation to the appeal or the without prejudice privilege. The plaintiff's application for an extension of time was dismissed.

Orders