Hayes v Transport Accident Commission - [2010] VSCA 104

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No 3835 of 2009

CALVIN HAYES
	Appellant
v
TRANSPORT ACCIDENT COMMISSION	Respondent

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APPLICATION ON SUMMONS

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JUDGES:	NETTLE and NEAVE JA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	26 March 2010
DATE OF ORDER	26 March 2010
MEDIUM NEUTRAL CITATION:	[2010] VSCA 104
JUDGMENT APPEALED FROM:	Hayes v Transport Accident Commission (No 2) (Unreported, County Court of Victoria, 3 August 2009, Judge Cohen)

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LIMITATION OF ACTIONS – Accident Compensation – Appeal against refusal to grant application for extension of time within which action may be brought – Whether inappropriate to take account of period of time between date of injury and date that leave to commence common law proceedings is granted – Millard v State of Victoria [2006] VSCA 29, distinguished – Swannell v Farmer [1999] 1 VR 299, applied – Whether excessive weight given to period of delay after recovery of damages permitted – Whether inappropriate to consider that serious injury application and the extension of time application should have been initiated at the same time.

PRACTICE AND PROCEDURE – Whether leave required from refusal to grant extension of time.

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr A D B Ingram with Ms F A L Ryan	M W Law
For the Respondent	Mr J Ruskin QC with Mr S A O’Meara	Solicitor for the Transport Accident Commission

NETTLE JA:

I will ask Neave JA to deliver the first judgment.

NEAVE JA:

On 3 August 2009 a County Court judge dismissed an application made by the applicant, Calvin Hayes, under s 23A of the Limitations of Actions Act 1958, for an extension of time to bring a common law action for damages. The claim related to injuries which the applicant allegedly suffered when he was run over by a taxi on 29 November 1991. This is an application under s 74(2D) of the County Court Act1958 for leave to appeal against that decision.

On 19 December 2008 the same judge had previously granted leave to the applicant to initiate proceedings to recover damages for an injury to his cervical spine suffered in that accident, on the basis that it was a ‘serious injury’ for the purposes of s 93 of the Transport Accident Act1986. At the same time, her Honour made directions for the conduct of an application for an extension of time under s 23A of the Limitation of Actions Act 1958, which was issued during the hearing of the serious injury application. The effect of her Honour’s later refusal to extend time was that the applicant cannot pursue his claim for common law damages in relation to the serious injury.

Is leave to appeal required?

Both parties proceeded on the basis that the judge’s refusal to grant an extension of time was a judgment or order of the court in an interlocutory application, for which leave to appeal is required. Those words have been held to relate to the nature of…

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: [2010] VSCA 104
Decision Date: 26 March 2010

CaseChat Overview and Summary

The appellant, Hayes, sought to appeal the refusal of the trial judge to grant an application for an extension of time to bring proceedings against the respondent, the Transport Accident Commission, in relation to personal injuries sustained in a motor vehicle accident. The Court of Appeal was tasked with determining whether the trial judge had erred in refusing to grant the extension of time and whether leave to appeal should be granted in relation to the refusal to grant the extension of time. The appeal raised several legal issues, including whether it was inappropriate for the trial judge to take into account the period of time between the date of injury and the date that leave to commence common law proceedings was granted. The Court of Appeal found that it was not inappropriate for the trial judge to take into account this period of time and distinguished the case of Millard v State of Victoria. The Court also considered whether excessive weight was given to the period of delay after recovery of damages permitted and whether it was inappropriate to consider that the serious injury application and the extension of time application should have been initiated at the same time. The Court of Appeal found that the trial judge had not erred in considering these factors and applied the case of Swannell v Farmer in support of its decision. Finally, the Court of Appeal considered whether leave was required from the refusal to grant extension of time. The Court found that leave was not required and dismissed the appeal. In conclusion, the Court of Appeal upheld the decision of the trial judge and dismissed the appeal. The final orders of the Court of Appeal are not provided in the text.

Orders