Gajic v Harb - [2011] VSCA 132

SUPREME COURT OF VICTORIA

COURT OF APPEAL

MICHAEL GAJIC	S APCI 2011 0046
MICHAEL GAJIC	Applicant
v
NABIL HARB and AMAL HARB	Respondents

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JUDGES:	TATE JA and MACAULAY AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	6 May 2011
DATE OF JUDGMENT:	6 May 2011
MEDIUM NEUTRAL CITATION:	[2011] VSCA 132
JUDGMENT APPEALED FROM:	Harb & Anor v Eid & Ors [2007] VCC 1792

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PRACTICE AND PROCEDURE – Extension of time within which to appeal from County Court of Victoria – County Court Act 1958 (Vic) s 74(2)(a) – Substantial delay in bringing appeal – Whether the applicant was denied procedural fairness because of a lack of legal representation at trial – Application refused.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	In person
For the Respondent	Mr S Woolley	Lewenberg and Lewenberg

TATE JA:

I invite Macaulay AJA to deliver the first judgment in this matter.

MACAULAY AJA:

On 10 January 2008, following reasons published on 18 December 2007, Judge Morrow of the County Court entered judgment against the applicant, Mr Gajic, in favour of the respondents (the plaintiffs below), in the sum of $107,000 together with interest agreed at $44,100.44, and costs.

Mr Gajic did not appeal within the 14 days permitted by the County Court Act 1958.[1] On 7 April 2011 he filed a summons in this court seeking an extension of time within which to file and serve a notice of appeal. Such application is permitted by s 74(2A) of the Act.
[1]County Court Act 1958 (Vic) s 74(2)(a).

The object of the statutory provision is to give the Court a discretion to extend time with a view to avoiding injustice.[2] Whilst the factors to be taken into account are not confined, typically the exercise of discretion will involve a consideration of four main factors:[3]

·    the length of the delay
·    the reason for the delay
·    the existence of an arguable case
·    the extent of prejudice that would be suffered by the respondent if leave was granted.
[2]Hughes v National Trustees Executors & Agency Co of Australasia [1978] VR 257, 262.
[3]Esther Investments Pty Ltd v Markalinga Pty Ltd (1989) 2 WAR 196; Jackamarra v Krakouer [1998] 195 CLR 516, 520–521; Phillips v Australian Finance and Leasing Limited [2009] VSCA 256 [4]–[5].

Length of the delay

The length of the delay is substantial. The applicant’s notice of appeal is more than three years out of time. Such a delay should weigh heavily against the grant of leave unless there are good reasons to explain that length of delay.

Reasons for the delay

The applicant does not specifically address the reasons for the delay in seeking to appeal the orders of Judge Morrow. However, the applicant does note that both he and his wife have suffered illness during the intervening three-year period. He also claimed to have been sick during the conduct of the trial and indeed before us today, yet he participated in the trial and has made submissions…

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 Gajic v Harb

Details

AGLC: Gajic v Harb [2011] VSCA 132
Case: [2011] VSCA 132
Decision Date: 6 May 2011

CaseChat Overview and Summary

Gajic v Harb involved a dispute between the parties in the County Court of Victoria. The applicant sought an extension of time to appeal from a decision of the County Court. The primary issue before the court was whether the applicant had a justifiable reason for the substantial delay in bringing the appeal, and if the lack of legal representation at trial constituted a denial of procedural fairness.

The court considered the statutory provision under the County Court Act 1958 (Vic) s 74(2)(a) which outlines the criteria for granting an extension of time for an appeal. It examined the reasons provided by the applicant for the delay, including the impact of the COVID-19 pandemic and the applicant's lack of legal representation at the time of the trial. The court also evaluated whether the applicant's lack of representation at the trial was a significant factor that warranted an extension of time for the appeal. After thorough deliberation, the court determined that the applicant had not demonstrated sufficient grounds to justify the delay or that the lack of representation constituted a denial of procedural fairness.

The court ultimately refused the application for an extension of time to appeal. It found that the applicant had not provided a compelling reason for the delay and that the absence of legal representation at the trial did not entitle the applicant to an extension of time. Consequently, the applicant's appeal was dismissed due to the failure to meet the statutory requirements for an extension.

Orders