Etta v Pearce
[2014] VSC 440
•11 September 2014
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST
PRACTICE COURT
S CI 2014 01759
| SUNDER BABU ETTA | Applicant/Appellant |
| v | |
| RON PEARCE | Respondent |
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JUDGE: | HARGRAVE J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 10 September 2014 |
DATE OF JUDGMENT: | 11 September 2014 |
CASE MAY BE CITED AS: | Etta v Pearce |
MEDIUM NEUTRAL CITATION: | [2014] VSC 440 |
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JUDICIAL REVIEW – Application for leave to appeal orders of the Victorian Civil and Administrative Tribunal – Application refused by associate justice on grounds that draft notice of appeal did not contain any comprehensible question of law and, in any event, there was no error in the Tribunal’s decision – Appeal to a judge under r 77.06 of the Supreme Court (General Civil Procedure) Rules 2005 – No error shown in reasons of associate justice – Appeal dismissed – Victorian Civil and Administrative Act 1998, s 148(1).
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant/Appellant | Appeared in person | |
| For the Respondent | Mr W Summons, Solicitor | Whitehead Summons |
HIS HONOUR:
The appellant (applicant below) is Sunder Babu Etta. In January 2003, Mr Etta suffered a workplace injury. He claimed workers compensation for a lower back injury and a neck injury. The workers compensation insurer accepted the claim for the lower back injury but rejected the claim for the neck injury. Mr Etta later retained the respondent, Ron Pearce of Ryan Carlisle Thomas, to act as his solicitor in connection with his claims. Mr Etta alleges that the respondent was negligent in doing so.
Mr Etta brought proceedings against the respondent in the Victorian Civil and Administrative Tribunal, claiming damages for solicitor’s negligence. Following a three day hearing, a senior member of the Tribunal published detailed reasons, on 16 December 2013, for dismissing Mr Etta’s claim against the respondent. Later, on 6 March 2014, the Tribunal ordered that Mr Etta pay the respondent’s costs of the proceeding in the Tribunal on the County Court scale.
Mr Etta sought leave from this Court to appeal against the Tribunal’s decisions to dismiss his claim and order that he pay the respondent’s costs. His application was made under s 148(1) of the Victorian Civil and Administrative Tribunal Act 1998 (‘the Act’) and heard by an associate justice. It was out of time but, as appears below, that was not the principal reason for the associate justice’s refusal of his application.
Mr Etta’s application for leave to appeal came on for hearing before the associate justice on 15 May 2014. At that time, he was informed by her Honour that his draft notice of appeal did not raise a question of law, a requirement for appeals under s 148(1). He was given an opportunity to file further material in support of his application, but did not do so.
The application for leave to appeal was heard by the associate justice on 25 July 2014. Her Honour delivered written reasons for dismissing the application with costs. In summary, the associate justice decided that it would be futile to extend the time for Mr Etta to seek leave to appeal under s 148(1) of the Act because there was nothing before the Court in Mr Etta’s draft notice of appeal, or in his oral submissions or affidavit material, which warranted the grant of leave. Specifically, the associate justice determined that:
(1) the draft notice of appeal did not identify a question of law;
(2) there was no error apparent on the face of the Tribunal’s reasons;
(3) Mr Etta had failed to identify any significant argument that the Tribunal had made an error of law. Rather, he sought to attack the Tribunal’s factual findings; and
(4) taking Mr Etta’s case at its highest, it appeared to the associate justice that he was alleging that it was not reasonably open for the Tribunal to find as it did on the evidence. The material put before the Court did not establish an arguable case on this ground.
By notice of appeal filed 8 August 2014, Mr Etta has exercised his right of appeal under r 77.06 of the Supreme Court (General Civil Procedure) Rules 2005.
Before turning to the purported grounds of appeal, it is necessary to record that appeals from associate justices are no longer by way of rehearing de novo. Such appeals are rehearings in the ordinary sense, which require the appellant to show error by the associate judge before appellate power may be exercised.[1]
[1]Oswal v Carson [2013] VSC 355.
Mr Etta’s grounds of appeal are vague and mostly incomprehensible. They do not address whether the associate justice’s decision was attended with any error. For example, the ‘scope of appeal’ is described in the following terms:
1. Loyalty towards my Country and ‘Public Interest’.
2. Establish ‘Truth’ by facts with Honesty.
Total loss Suffered Loses and Lost Ability ‘Loss of Chance’.
3.Serious significant Physical Injury and Greater Functional Disability. (Disputing)
4.Live by Australian Standards as an Asset, valuable, respectable, responsible and good citizen.
5.Deserve Impairment Benefit Fair Compensation and Damages.
In his appeal documents, Mr Etta has endeavoured to state some questions of law arising from the Tribunal’s decision. His complaints are that factual errors were made by the Tribunal, but he was unable to articulate any reason why the factual findings he complains of were not open on the evidence before the Tribunal. Further, nowhere in his appeal documents has he endeavoured to grapple with the reasons given by the associate justice or to establish error in those reasons.
The appeal was initially returnable before Sifris J last week. His Honour adjourned the matter to enable Mr Etta to endeavour to get legal assistance. Mr Etta was unable to obtain legal representation. Sifris J also requested Mr Etta to summarise his complaints on appeal in a short document, limited to one page if possible. In response, Mr Etta prepared a three page document summarising his complaints. That document formed the basis of Mr Etta’s submissions on appeal. It served to give his submissions some structure and enable the Court to confine Mr Etta’s submissions, at least to some degree, to alleged errors of law made by the Tribunal in dismissing his application.
Given that Mr Etta is a self-represented litigant, I endeavoured to give him an opportunity to orally formulate his contentions that there were errors in the associate justice’s reasons for decision. Understandably, Mr Etta was unable to distinguish between submissions that the Tribunal had erred and submissions that the associate justice had erred. He continually sought to re-argue the whole of his case before the Tribunal, in particular by seeking to challenge the Tribunal’s factual findings, in some cases by evidence from the bar table that was contrary to those factual findings. I proceed to consider the principal matters relied upon by Mr Etta as errors of law made by the Tribunal.
Mr Etta contended that the Tribunal’s findings in paragraphs 10 and 11 of its reasons — that his complaints about his neck injury were not placed before the Medical Panel — were the result of the respondent’s negligence. He placed particular reliance on a letter dated 7 July 2009 from the WorkCover insurer (GIO) to the respondent’s firm. He contended in effect that this letter made it clear to the firm that any further material relating to the Medical Panel’s opinion as to the degree of his whole person impairment should be provided by 21 July 2009. In that regard, Mr Etta contended that there was evidence relating to his neck injury which he forwarded personally to the Medical Panel before the Panel made its impairment assessment on 4 September 2009 in respect of his lower back injury.[2] I note that, if that is so, the Medical Panel did have evidence about Mr Etta’s neck injury.
[2]Mr Etta referred to medical reports dated 7 February 2007 (Symbion Imaging), 19 January 2007 (Symbion Imaging), 2 February 2007 (Coburg Physiotherapy) and his own assessment of his neck and shoulder symptoms dated 5 August 2009.
The difficulty with Mr Etta relying upon these documents is that he acknowledged that they were not in evidence before the Tribunal. His response was that he was denied natural justice at the Tribunal, because the hearing lasted only two days and he was ‘stopped’ when he endeavoured to tender relevant evidence. The difficulty with this submission is that Mr Etta has placed no evidence before the Court in an admissible form as to what transpired at the Tribunal.
Further, the Tribunal determined that, even if it is assumed that the respondent acted negligently in not providing relevant information to the Medical Panel concerning Mr Etta’s neck injury, Mr Etta suffered no loss as a result. The Tribunal noted that if Mr Etta had received a higher impairment assessment from the Medical Panel as a result of his neck injury, he would have been awarded a lump sum payment under ss 98C and 98D of the Accident Compensation Act 1985. The Tribunal reasoned, in my opinion correctly, that any such lump sum payment would have been deducted from the $150,000 settlement which Mr Etta later received in his personal injuries claim in the County Court for pain and suffering.[3] In my opinion, no error has been demonstrated in the Tribunal’s reasons in this regard.
[3]Section 134AB(25)(b) of the Accident Compensation Act; Tribunal reasons, [33]-[36].
Mr Etta next submitted that the Tribunal’s decision was manifestly unreasonable because it did not take account of the evidence of Dr Bittar in his report dated 24 February 2012. As the Tribunal’s reasons demonstrate, that report was provided long after the respondent ceased acting as Mr Etta’s solicitor. He contended, however, that Dr Bittar’s report demonstrates that, had the respondent properly investigated his neck injury prior to the Medical Panel assessment, the extent of his neck injury would have been revealed at that time. If this argument was to be accepted, it would also be met by the Tribunal’s reasoning summarised above. Any lump sum payment received by Mr Etta as a result of a higher assessment of impairment by the Medical Panel in 2009 would in any event have been deducted from his later settlement amount for pain and suffering damages.
Finally, Mr Etta continued to maintain that, notwithstanding the clear and reasoned factual findings by the Tribunal, he was ‘pressurised’ into signing the ‘Settlement Authority’ document referred to in paragraph 23 of the Tribunal’s reasons, under which he abandoned any right to make a claim for economic loss based on loss of future earning capacity. In this respect, Mr Etta’s arguments on appeal amounted to him seeking to re-argue that aspect of the case which was decided adversely to him by the Tribunal. In fairness to him, when it was explained that the Tribunal’s reasons in this regard did not demonstrate any error, he did not pursue the point with any vigour — accepting the Court’s indication that this was an issue which he had run and lost before the Tribunal on a question of fact only.
For the above reasons, the appeal will be dismissed. I see no error in the careful reasons given by the associate justice, nor has it been demonstrated on appeal that there is any error of law in the Tribunal’s reasons for decision which would justify the grant of leave to appeal under s 148(1) of the Act.
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