Esso Australia Pty Ltd v Robertson - [2004] VSCA 79

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 1484 of 2000

ESSO AUSTRALIA PTY LTD
	Applicant
v.
NORMAN LINDSAY ROBERTSON	Respondent

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APPLICATION ON SUMMONS

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JUDGES:	PHILLIPS and BATT, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	30 April 2004
DATE OF JUDGMENT: MEDIUM NEUTRAL CITATION:	30 April 2004 [2004] VSCA 79

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PROCEDURE – Appeals – Compensation against person convicted on presentment – Order extending time for seeking – Leave to appeal therefrom – Whether to be sought in criminal or civil jurisdiction – Whether to be given – Where extension order could ground appeal from any ultimate compensation order – Crimes Act 1958, ss.566, 567, 568(4); Sentencing Act 1991, ss.85B, 85D; Supreme Court Act 1986, ss.17(2), 17A(3), (4)(b).

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APPEARANCES:

Counsel

Solicitors

For the Applicant

For the Respondent

Mr D.E. Curtain QC
With Mr S.A. O'Meara

Mr M.A. Dreyfus Q.C.
With Mr D. Bracken

Middletons

Maurice Blackburn Cashman

PHILLIPS, J.A.:

This is an application by Esso Australia Pty Ltd by summons filed on 2 April 2004. The application is supported by the affidavit of the applicant's solicitor filed the same day. In conformity with the relevant practice statement, the applicant filed an outline of submissions on 16 April 2004 but the respondent did not reply until 28 April, thereby occasioning the Court some difficulty. The matters raised are not easy.

The applicant was convicted by a jury in the Trial Division of breaches of the Occupational Health and Safety Act 1985 in consequence of an explosion that took place some years ago now at the Longford Plant. The respondent, Robertson, who claims to have been injured in consequence, applied under s.85D of the Sentencing Act 1991 for an extension of time within which to bring a claim for compensation. That application succeeded, the judge in the Trial Division delivering comprehensive reasons for judgment on 19 March 2004. An order was made extending time and it is from that order that the applicant now seeks leave to appeal by its summons filed on 2 April.

The applicant's summons is headed in the Civil Division and a question emerged whether there is any right of appeal on the civil side from an order made under s.85D (as the applicant contended in its outline) or such a right is available only on the criminal side (as the respondent contends). On the face of it, the order having been made for an extension of time within which to bring a proceeding for compensation, the order is subject to appeal by virtue of s.17(2) of the Supreme Court Act 1986 which creates a right to appeal to the Court of Appeal from any determination of a judge in the Trial Division. On the other hand, applications for compensation orders under s.85B of the Sentencing Act 1991 are, at least in a sense, incidents of criminal proceedings and s.566 of the Crimes Act 1958 defines "sentence" to include any order made under Part 3, 4 or 5 of the Sentencing Act, s.85B (authorising…

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: [2004] VSCA 79
Decision Date: 30 April 2004

CaseChat Overview and Summary

Esso Australia Pty Ltd sought compensation from Robertson, who was convicted for causing damage to Esso's property. The matter was heard in the County Court of Victoria. The primary dispute centred around the jurisdiction and procedure for seeking an extension of time to apply for compensation against Robertson and subsequently appealing any order made regarding that compensation.

The court had to determine whether the application for an extension of time to seek compensation against Robertson should be filed in the criminal or civil jurisdiction. Furthermore, it was necessary to decide whether such an application should be granted and, if so, the appropriate grounds for any appeal from an ultimate compensation order.

In its decision, the court held that the application for an extension of time to seek compensation against Robertson should be made in the criminal jurisdiction. The court reasoned that since the extension order could potentially form the basis for an appeal from any ultimate compensation order, it was appropriately classified under the criminal jurisdiction. The court found that the application for an extension of time should be granted on the basis that it was in the interests of justice to do so. The court's decision was grounded in the provisions of the Crimes Act 1958, the Sentencing Act 1991, and the Supreme Court Act 1986.

The final orders included granting leave to Esso Australia Pty Ltd to appeal the decision to the Supreme Court, allowing the extension of time for seeking compensation against Robertson, and directing that the application for an extension be made in the criminal jurisdiction.

Orders