Edwards v Transport Accident Commission
[2013] VSC 557
•18 October 2013
| 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 Edwards’ credit made in the hearing in the VCAT. The Deputy President found that the section TAC relied on did not turn in any way on what Mr Edwards knew or believed, although had it been material to his decision he would have found that Mr Edwards was not acting, as he claimed, in good faith.[2]
[1]The VCAT’s reasons dated 1 December 2011 (Reasons) at [4]-[7], [20].
[2]Reasons [13].
The evidence before the Deputy President was that there is an agency arrangement between VicRoads and TAC under which VicRoads collects the transport accident charge and remits it to TAC. Where a cheque is dishonoured, as in this case, VicRoads undertakes the task of collecting the debt.[3]
[3]Reasons [10].
Despite the dishonour of the cheque, there had been no suspension or cancellation of the registration of the motorcycle in the 12 month period of the registration, which included the date of the accident. This apparently happened as a result of human error.[4] A person carrying out an investigation of the registration status of the motorcycle at the time of the accident would have found the registration to be ‘active’.[5] Ultimately VicRoads “wrote off” the registration fees and recovered the transport accident charge from TAC on 28 May 2008.[6]
[4]Reasons [14].
[5]Reasons [14].
[6]Reasons [10].
It is relevant to note at this point that the Deputy President held that the liability of TAC for loss of earnings benefits under s 40(1)(b) of the TAC Act did not depend on the registration status of the motorcycle at the time of the accident.[7] This is clearly right as a matter of construction of that section.
[7]Reasons [14].
Mr Edwards argued that the transport accident charge had been paid to TAC. He relied upon the evidence that, upon receipt of his cheque, VicRoads remitted the amount of the transport accident charge to TAC. He also relied upon the evidence that VicRoads had not recovered that sum from TAC until after the transport accident. He contended that, in the circumstances, the transport accident charge had been paid to TAC at the time of the accident.[8]
[8]Reasons at [17].
TAC argued that in the circumstances the transport accident charge had not been paid because s 109 of the TAC Act required the charge to be paid by the owner, and it was not. Only payment by the owner could lead to the charge being regarded as paid for the purposes of s 40. Here the charge was paid by VicRoads and, after dishonour of the cheque, recovered.
The VCAT found that Mr Edwards had not paid that charge.[9] The Deputy President observed that where a personal cheque[10] is given in payment of a debt the payment is conditional only and when the cheque is dishonoured the original debt revived: Tilley v Official Receiver in Bankruptcy;[11] TEA (1983) Ltd (In Liq) v The Uniting Church (NSW) Trust Association.[12]
[9]Reasons [20].
[10]He regarded the cheque as personal to Mr Edwards in functional terms: Reasons [20].
[11](1960) 103 CLR 529 at 532 per Dixon CJ.
[12][1985] VR 139 at 141 per Brooking J.
In the course of his reasons the Deputy President considered the purpose of the TAC Act and s 40, and concluded that he could not regard the conditional payment made by Mr Edwards to VicRoads, nor the payment by VicRoads to TAC, as a payment by Mr Edwards or by VicRoads on his behalf.[13]
[13]Reasons [23]-[25].
By order dated 1 December 2011, VCAT affirmed the TAC’s determination (“the Order”).
The Delay
This application seeking an extension of the time to apply for leave to appeal was made about 19 months after the Order. This is an inordinate delay calling for a full and frank explanation.
By his affidavit sworn on 2 July 2013 (and filed on 11 July 2013), Mr Edwards swore that only in consequence of a discussion with Senior Member G Nihill at VCAT on 21 March 2013 during a directions hearing in another VCAT matter in which he was involved (No. A30/2013) did he become aware that he could have appealed the order made on 1 December 2011. Before this discussion he thought the decision was not reviewable and was final. Mr Nihill made him aware of the 28-day period of applying for leave to appeal and that he would need to make application to extend that time if he wanted to appeal the Deputy President’s Order in this case.
By a further affidavit sworn on 19 August 2013, Mr Edwards exhibited a letter from the Registrar, Administrative Division of VCAT dated (surprisingly) 30 November 2011 which had attached to it a copy of VCAT’s order made on 1 December 2011. Mr Edwards swore that this was given to him over the counter at VCAT on 1 December 2011 and that there was no information page attached. The reference to an information page is a reference to a page that is commonly attached to orders sent to litigants in VCAT notifying them of their entitlement to apply for leave to appeal on a question of law.
In response to this affidavit, TAC filed an affidavit of Anna Carol Sowden sworn 14 October 2013. Ms Sowden is an Australian legal practitioner in the sole and permanent employ of TAC and has the care and conduct of the proceeding on its behalf. She deposes that at the time the matter was before VCAT two other practitioners no longer in the employ of TAC had the conduct of the matter. She produced copies of the following documents –
(a) an email from the plaintiff to TAC dated 1 December 2011 (“ACS-1”);
(b) a filenote of a conversation between the plaintiff and one of those former solicitors, Mr Briffa, held on 1 December 2011 (“ACS-2”);
(c) an email from the plaintiff to TAC dated 4 June 2012 (“ACS-3”); and
(d) an email from the plaintiff to her dated 25 February 2013 (“ACS-4”).
Objection was taken by Mr Edwards to the admission of exhibits ACS-2, ACS-3 and ACS-4, on the basis that they were without prejudice communications and thus privileged from being adduced in evidence. He did not, however, maintain any without prejudice privilege in respect of exhibit ACS-1. Counsel for TAC did not press reliance on exhibit ACS-4.
Counsel for TAC, Mr J Pizer, contested the claim for without prejudice privilege. Before turning to that contest I will note the content of exhibit ACS-1 as it is relevant to the issue of the knowledge of Mr Edwards of his rights in relation to appeal or review of the decision of VCAT.
As I have said, ACS-1 is an email from Mr Edwards to TAC dated 1 December 2011, the day of the order made by VCAT the subject of this application. The email was initially directed to Mario Briffa but that delivery failed. It was forwarded, it appears, to Mr Briffa by another person. It relates to “VCAT ref. G325/2011, order dated 01/12/2011 (to the TAC bosses)”. It is a chatty email, in an informal and familiar way, and relates to the order made by Deputy President McNamara. Relevantly it states:
Whilst this is a pleasant happenstance for TAC it will be short lived as I, being familiar with the higher review jurisdiction on William Street I find that, although well intentioned the Registrar may have missed something. I really love him he’s the best judge I’ve ever been fortunate to meet and argue before and I make no criticism of him and respect him dearly.
In this situation I believe the only people whom (sic) may have needed skills to ‘de-cypher’ (sic) this foreign legal code the appellant judges at the Supreme Court at Melbourne. I would imagine once they see this code it will become clear if indeed a oversight occurred which may have seen a affirmation of the applicants ‘determination’.
I am truly sorry for all this however I made aware (from day one) TAC my intension (sic) was to argue this matter to the Appeals Court and I feel we are almost there. I remember once with another bully NAB Ltd v Peter J Edwards and three justices on that day basically told the bank to pull their head in. I can tell you as an untrained self-litigant the joy in seeing a billion dollar company and their QC’s and three barrister’s faces when they lost.
In the alternative I am open to any way to close this matter down but with bullies they never give up until they are knocked down. My reason is firstly to be awarded my loss of benefits but I also do this for the little people whom TAC crucify every single day with its clever legalisms and legal tactics and horrible investigators – but do not have the inclination, smarts or the stamina required to defend themselves.
Without Prejudice Privilege
The claim to without prejudice privilege was based upon the proposition that the other exhibits were an attempt to negotiate a settlement of a dispute.
The relevant section of the Victorian Evidence Act 2008 is s 131. So far as relevant it provides:
(1) Evidence is not to be adduced of—
(a) a communication that is made between persons in dispute, or between one or more persons in dispute and a third party, in connection with an attempt to negotiate a settlement of the dispute; or
(b) a document (whether delivered or not) that has been prepared in connection with an attempt to negotiate a settlement of a dispute.
(2) Subsection (1) does not apply if—
….
(g) evidence that has been adduced in the proceeding, or an inference from evidence that has been adduced in the proceeding, is likely to mislead the court unless evidence of the communication or document is adduced to contradict or to qualify that evidence;
(5) In this section—
(a) a reference to a dispute is a reference to a dispute of a kind in respect of which relief may be given in an Australian or overseas proceeding; and
….
(c) a reference to a communication made by a person in dispute includes a reference to a communication made by an employee or agent of such a person; and
The proceeding in VCAT was, and the application in this Court is, an Australian proceeding.[14]
[14]See definition of Australian or overseas proceeding, and Australian court, in s 3 of the Dictionary.
None of the documents, whether considered as documents or communications, is marked without prejudice. That of course is not determinative, but it is one of many indications.
In exhibit ACS-2 there is recorded what might at first blush appear to be a reference to negotiation between Mr Edwards and Mr Briffa of TAC. Mr Pizer pointed out that at the time that this note was taken of the phone call (1 December 2011) there was in fact no dispute in existence between the parties because there had been no application made for leave to appeal. That is too narrow an approach to take to the determination of whether or not the communication is an attempt to negotiate a settlement of a dispute. Having regard to Mr Edwards intimation made in the email that is in exhibit ACS-1 there is clearly the threat of an application to the Supreme Court and this would, prima facie, provide that the context in which the without prejudice communication could take place.
Mr Edwards complained that it was all too late in any event because I had read the affidavit and the exhibits, which had been transmitted to my associate electronically before the hearing. However, as I indicated to him, I would disregard any privileged material and determine the application without taking it into account.
Mr Pizer submitted that only a couple of sentences of exhibit ACS-2 potentially contained any without prejudice privileged material, and that I could proceed on the footing that the exhibit was redacted by the deletion of those sentences.
I think Mr Pizer is right. In any event, I am not satisfied upon a consideration of exhibit ACS-2 that it does contain a record of a communication that was made as part of an attempt to negotiate a resolution of the prospective application for leave to appeal. I do so for the reason that the tenor of the file note shows that the matter put by Mr Edwards to Mr Briffa, as recorded in the note, was a statement made in terrorem. I will say no more about it so that no prejudice arises in the event that my analysis of the file note is incorrect. What I can say is that the note records that Mr Edwards told Mr Briffa that he intended to lodge an appeal with the Supreme Court and that Mr Briffa confirmed that it was his right to appeal if he wished.
Exhibit ACS-3 was also claimed by Mr Edwards to be the subject of without prejudice privilege. My consideration of that email (dated 4 June 2012) reveals that there is one reference to a matter that might constitute a part of a without prejudice communication. However, the context clearly demonstrates that it is simply another attempt to extort a payment from TAC. There is no indication that TAC was participating in any way in any negotiation or attempts to resolve a potential appeal. The email includes:
You know how TAC waste peoples time! Keeps them waiting for years only to loop hold and then deny and think its funny/well you know how I get my kicks taking actions in lower and then higher then higher jurisdictions to make sure your disgusting statutory body spends as much money on a single 5000$ case as is possible. This is done for all the little people you stand over and on and cannot do what I can to tie up your resources.
The email ends with “this is going to be fun court of appeals at the end Mario LOL”.
A further matter relevant to the admission of the exhibits is s 131(2)(g) of the Evidence Act. There is a narrow and a wider interpretation of this exception.
The narrow view was taken by Emmet J in Brown v Commissioner of Taxation,[15] where he held that s 131(2)(g) will apply ‘where the court would be likely to be misled as to the existence or contents of an excluded communication or document, where those matters are in issue in the proceeding.’[16] Under this interpretation the exception does not apply to any case where the evidence sought to be adduced simply contradicts or qualifies evidence already adduced.
[15](2001) 187 ALR 714 (‘Brown’).
[16]Brown (2001) 187 ALR 714, 754 [185]; see Simply Irresistible Pty Ltd v Couper [2010] VSC 505 at [16].
A wider view was taken in Mulkearns v Chandos Developments Pty Ltd [No 4],[17] where Young CJ in Eq held that evidence of a prior without prejudice offer by the defendant was admissible under s 131(2)(g) because, ‘unless this additional fact is permitted into evidence, the plaintiffs may mislead the Court into thinking their case is one against a greedy defendant who would not give an inch and this would be a factor to go to the Court’s discretion [whether to order the return of the deposit].[18]
[17][2005] NSWSC 511 (1 June 2005) (‘Mulkearns’).
[18]Mulkearns [2005] NSWSC 511 (1 June 2005) [67], [68].
In Simply Irresistible Pty Ltd v Couper,[19] Kyrou J applied both cases to the circumstances before him, saying that:
It is clear, however, that if the proposed evidence has the effect contended by Mr Booth, the inability of Riordans to adduce that evidence to contradict or qualify Mrs Maher’s evidence would be likely to mislead the Court on the issues of contributory negligence and mitigation. Exclusion of the proposed evidence would enable the plaintiff to assert a case which was inconsistent with that evidence.
[19][2010] VSC 505 at [18].
This is a circumstance where, in my view, the exception applies. The statements in exhibits ACS-2 and ACS-3 provide continuing evidence of his awareness of a right of appeal from VCAT to the Supreme Court, and tend to contradict Mr Edwards’ affidavit evidence that he did not know of his right to apply for leave to appeal. The Court is likely to be misled by Mr Edwards’ affidavit evidence unless the exhibits are admitted into evidence to contradict that affidavit evidence. Thus the exception is applicable.
Extension of time, Section 148(5) – applicable principles
Section 148(5) of the VCAT Act empowers this Court to extend the 28-day time limit fixed for seeking leave to appeal. Whether or not to extend the time for appealing is in the discretion of the Court.[20] Although the discretion to extend time is unfettered, like all discretions it has to be exercised judicially, that is, not by reference to irrelevant or extraneous considerations, but upon facts connected with or relevant to the matter, and it should be exercised flexibly with regard to the facts of the particular case.[21]
[20]See, eg, Davies v Transport Accident Commission [2000] VSC 379 at [20].
[21]Palata Investments Ltd v Burt & Sinfield Ltd [1985] 2 All ER 517; [1985] 1 WLR 942; Latoudis v Casey, (1990) 170 CLR 534, 537.
A consideration relevant to the exercise of the discretion is that upon the expiry of the time limited for appeal, or in this case, an application for leave to appeal, the defendant has a vested right to retain the judgment or order unless the application is granted: Vilenius v Heinegar;[22] Hughes v National Trustees, Executors & Agency Co of Australasia Ltd.[23]
[22](1962) 36 ALJR 200 at 201.
[23][1978] VR 257 at 263.
Other relevant matters have been held to include the length of the delay, the reasons for the delay, the chances of leave being granted if an extension of time is granted, and the degree of prejudice to the defendant if time is extended.[24] Clearly, the party seeking the extension bears the onus of proving that it should be granted. An extension will not be granted if the case is hopeless, unarguable or bound to fail, because it would be futile to grant the extension in those circumstances.[25]
[24]See Hughes v National Trustees, Executors & Agency Co of Australasia Ltd [1978] VR 257 at 263; Jackamarra v Krakouer (1998) 195 CLR 516; Giurina v Owners Corporation No 1579 [2012] VSC 466 at [28]; Update Pty Ltd v Commissioner of State Revenue [2013] VSC 122 at [29].
[25]See, eg, Loizou v University of Melbourne [2000] VSC 1 at [34].
Although the court does not decide an application to extend or enlarge time for doing an act according to some formula,[26] the factors identified above provide a useful guide.
[26]Dix v Crimes Compensation Tribunal, [1993] 1 VR 297 at 302..
Leave to Appeal – Applicable principles
The procedure for applying for leave to appeal under s 148 of the VCAT Act is regulated in part by Order 4 of Chapter II of the Supreme Court (Miscellaneous Civil Proceedings) Rules 2008. Rule 4.09(1) confers discretion on the Associate Judge and, without limiting that discretion, empowers refusal of leave if the Associate Judge is satisfied that the applicant does not have a prima facie case on appeal or that to refuse leave would impose no substantial injustice.
The approach to the question whether or not leave should be granted under s 148(1) of the VCAT Act was set out comprehensively in the decision of the Court of Appeal in Secretary to Department of Premier and Cabinet v Hulls.[27] That approach was conveniently summarised by Warren CJ in Myers v Medical Practitioners’ Board of Victoria.[28] That summary is as follows:
[27][1999] 3 VR 331.
[28](2007) 18 VR 48 at [28].
(a)Whether leave is granted or not must always depend upon the justice of the particular case;
(b)if leave is to be granted, the applicant must at least identify a question of law (as distinct from a question of fact) which is important to the substantive appeal’s succeeding or failing;
(c)the applicant need not establish an error below – that is for the appeal itself. Rather, the applicant will be required to show that there is a real or significant argument to be put that error exists;
(d)although not essential, the applicant may identify a question of law that is of general or public importance. This will weigh in favour of granting leave;
(e)once a question of law has been identified which bears directly upon the relief which will be sought in the appeal, and once it has been shown that there is sufficient doubt attending that question to justify the grant of leave to appeal, leave will ordinarily be granted if the order below is a final order or final in its effect; and
(f)where the order sought to be appealed is an interim order, there may be reason bearing on the justice done to both parties for not granting leave to appeal, for example, where granting leave to appeal will result in an unnecessary interruption to the substantive proceedings.
(footnotes omitted)
Warren CJ also pointed out in Myers that the guidelines laid out are not hard and fast rules and set out a part of the following passage from the reasons of Phillips JA in Hulls:
There is an obvious danger in seeking to summarise the considerations which bear upon the granting of leave to appeal. Ultimately what must govern is the justice of the case as it appears to the Court from which leave to appeal is sought, and that means justice to all parties, not just the applicant. As I said at the outset it is not appropriate for us to do any more than lay down guidelines and any guidelines will sometimes be found inadequate; but with that rider, the foregoing might be summarised along the following lines: When leave is sought to appeal under s 148, it will be necessary for the applicant to identify a question of law which is relevant to the granting of the relief sought on appeal. The importance of the question, either generally or to the would-be appellant in a particular case, will probably be relevant. The applicant must show that there is a real or significant argument to be put on that question of law at least to this extent: that there is sufficient doubt about it to justify the grant of leave. Moreover, it may have to be shown that to allow the error to go uncorrected would impose substantial injustice, although, where the order below is final, that injustice will often be more readily discernible.
(emphasis added)
In Hulls, Phillips JA considered an argument that the provision made by r 4.09 in some way provided criteria for the granting of leave to appeal. He somewhat emphatically rejected that this was the proper interpretation of the rule. But it is apparent in my view that the matters identified in r 4.09(2) which may guide an Associate Judge in refusing leave to appeal are consistent with, even on all fours with, the matters identified by the Court of Appeal in Hulls as circumstances in which leave to appeal may be refused.
Extension of time
Mr Edwards has not discharged his onus of proving that an extension of time should be granted, for the following reasons.
Section 148 of the VCAT Act contemplates that the question of law the subject of the appeal will be speedily identified and pursued.[29] Here the delay has been lengthy, about 19 months. This is, as I have said, inordinate delay. The vested right of TAC to the decision of VCAT should only be disturbed if the justice of the case require it. The explanation for the delay is the first element of determining the justice of the matter.
[29]Derring Lane Pty Ltd v Fitzgibbon (2007) 16 VR 563 at [119] per Ashley JA (with whom Buchanan JA and Kellam AJA agreed). See also Kacinskas v McMahon [2011] VSC 458 at [6].
The only explanation for the delay is Mr Edwards’ claimed lack of knowledge of his entitlement to appeal. There is no other explanation for the delay. He has sworn that he only became aware that he could have appealed from VCAT’s order during a discussion with a VCAT member on 21 March 2013.[30] He has also said that, before this discussion, he thought the decision was “not reviewable and final”.
[30]Affidavit of Xavier Peter Edwards dated 28 June 2013 at [2].
The evidence of Ms Sowden, a TAC solicitor, shows that Mr Edwards was aware of his entitlement to appeal to this Court as long ago as December 2011.[31] Further, Mr Edwards has given no explanation for not seeking leave to appeal within 28 days from 21 March 2013. The latter delay was explained, in part, from the bar table as turning on the other calls on his time, his children, university course, part-time occupation and the tasks of daily existence. But these are everyday problems that can be overcome where time limits affecting the pursuit of rights are set down.
[31]See exhibits ACS-1, ACS-2 and ACS-3 to the affidavit of Anna Carol Sowden sworn 14 October 2013.
The last matter relevant to an extension of time to apply for leave is whether Mr Edwards has an arguable case that warrants the grant of leave to appeal. It seems to me, for the reasons that follow, his application for leave to appeal would fail.
Leave to appeal
Section 40(1)(b) of the TAC Act provides, in substance, that TAC is not liable to pay loss of earnings benefits to a person who is injured as a result of a transport accident if the person was, at the time of the transport accident, the driver of a motor vehicle owned by the person in respect of which a transport accident charge payable in respect of a period including that time had not been paid. There was no dispute that a motorcycle is a motor vehicle or that Mr Edwards, as its rider, was its driver under the TAC Act.[32]
[32]Reasons [16].
Although the expression transport accident charge is not defined in the Act, Part 7 of the Act deals with the payment and calculation of the amount of the charge. Section 109 deals with the payment of the transport accident charge, by requiring the owner of a registered motor vehicle, in respect of each prescribed period, to pay to TAC the transport accident charge applicable to that motor vehicle for that period. The prescribed period is either period prescribed under the regulations or, if no period is so prescribed, the period of 12 months commencing on the date, or the anniversary of the date, of the registration of the motor vehicle: s 109 (5). The period in this case was 12 months.[33]
[33]Regulation 219 (1) (b) of the Road Safety (Vehicles) Regulations 1999.
Under s 109 the obligation to pay the charge is imposed on the owner of the vehicle and the charge must be paid to TAC. That obligation may be discharged by the owner directly, or by an agent acting on the owner’s behalf.
Section 22 of the TAC Act empowers TAC to delegate its functions, including its function of collecting transport accident charges under section 109 of the Act. It was submitted that TAC exercised that power of delegation by delegating to VicRoads its function of collecting and recovering the transport accident charge. Thus, the transport accident charge was to be paid to VicRoads as TAC’s delegate. The evidence before VCAT was, however, that there was an agency arrangement between the authorities. They may amount to the same thing.
This arrangement was recognised by the Road Safety (Vehicles) Regulations 1999 (the Regulations), being the Regulations in force at the relevant time.[34] Regulation 212 of the Regulations set out what an applicant for registration of a vehicle must submit to VicRoads. Relevantly, that included payment of “the appropriate transport accident charge for the vehicle”. It follows from this regulation that the “applicant for registration” was required to pay VicRoads the appropriate transport accident charge.
[34]The Regulations have since been replaced by the Road Safety (Vehicles) Regulations 2009.
This raises the question: who could be an “applicant for registration”? Regulation 209 answered this question, as follows:
(1)Application for registration of a vehicle may be made by –
(a)a natural person who is eligible to become the registered operator of the vehicle; or
(b)an agent of –
(i)a natural person who is eligible to become the registered operator of that vehicle; or
(ii)a corporation.
Mr Edwards was a natural person who was eligible to become the registered operator of his vehicle. It follows that he could have made the application for registration of that vehicle, or an agent could have made that application on his behalf. Since paying the transport accident charge to VicRoads is an essential part of applying for registration of a vehicle, it also follows that Mr Edwards could have paid that charge to VicRoads himself, or an agent could have paid that charge to VicRoads on his behalf.
Mr Edwards did not pay the charge to VicRoads. His cheque was dishonoured. The Deputy President correctly noted that a payment by cheque is a conditional discharge of the debt and when the cheque is dishonoured the debt revives.[35]
[35]Reasons at [20].
Further, there is no basis to contend that anyone paid the transport accident charge to VicRoads as agent for Mr Edwards. Indeed, Mr Edwards himself has never made that contention.
It is Mr Edwards’ contention that the transport accident charge was paid by VicRoads to TAC. VicRoads did transfer an amount to TAC that represented the transport accident charge for Mr Edwards’ vehicle. It did so on the footing that his cheque would be honoured, but it later recovered that amount after the cheque had been dishonoured and after the transport accident had occurred.
There is insufficient reason to doubt the conclusion reached by the Deputy President that the transfer by VicRoads to TAC did not discharge Mr Edwards’ liability to pay the transport accident charge. There was no evidence of any agreement to that effect between VicRoads and Mr Edwards. Nor did any statutory provision achieve that result. The fact that it appeared that the charge had been paid at the time of the accident was purely the product of human error, in that the fact of dishonour of the cheque had not resulted in a reversal of the remittance by VicRoads to TAC.
Importantly, VicRoads did not transfer the money to TAC as Mr Edwards’ agent. Instead, it did so as TAC’s delegate or agent. And it did so on the footing that Mr Edwards’ liability to pay the transport accident charge would be discharged when the cheque was honoured. It is not open to conclude that, if the cheque was not honoured, VicRoads had somehow agreed that its payment to TAC had the effect of discharging, on Mr Edwards’ behalf, his liability to pay the charge.
The conclusion reached by VCAT that the relevant transport accident charge had not been paid by Mr Edwards when he was injured in his transport accident is therefore correct. He had not paid that charge, and no agent of his had paid that charge on his behalf.
This conclusion means that Mr Edwards does not have a real or significant argument to put that VCAT made an error of law when it concluded that, at the time of his transport accident, Mr Edwards had not himself paid the transport accident charge in respect of his vehicle.[36]
[36]Reasons at [25].
Decision
For these reasons, I conclude that in the exercise of the discretion given to me by s 148(5) of the VCAT Act, I should refuse to grant the plaintiff an extension of time within which to apply for leave to appeal the orders of VCAT sought to be appealed in the Originating Motion.
I will therefore dismiss the application.
I will hear the parties as to the costs of the proceeding.
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