Hind v Ronsel Investments Pty Ltd

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCI 2023 0021

GREGORY ROY HIND	Applicant
v
RONSEL INVESTMENTS PTY LTD	Respondent

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JUDGES:	BEACH and LYONS JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	14 March 2024
DATE OF JUDGMENT:	28 March 2024
MEDIUM NEUTRAL CITATION:	[2024] VSCA 53
JUDGMENT APPEALED FROM:	[2022] VSC 785 (Niall JA)

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PRACTICE AND PROCEDURE – Application for leave to appeal against summary judgment – Claims statute-barred – Cause of action in negligence accrues when damage due to defendant’s alleged breach is first suffered – Bodycorp Repairers Pty Ltd v Holding Redlich [2018] VSCA 17, considered – Whether limitation period postponed by the Limitations of Actions Act 1958 ss 27(c) or (d) – Limitation period not postponed as no concealment or mistake established – Application for leave to appeal refused.

PRACTICE AND PROCEDURE – Application for leave to appeal against dismissal of proceeding for want of prosecution – Dismissal of proceeding was correct in order to prevent ongoing prejudice to respondent – No realistic prospect of sufficiently pleaded claim being put forward – Whether stay of proceeding should have been ordered – Stay not appropriate as prejudice would be allowed to continue – Application for leave to appeal refused.

PRACTICE AND PROCEDURE – Application for leave to appeal against decision not to grant application to issue subpoenas and not to rely upon certain affidavit evidence – Evidence not relevant to critical issues in dispute – Application for leave to appeal refused.

PRACTICE AND PROCEDURE – Application for leave to appeal against decision not to extend the time for filing notice of appeal from orders or judgment of an associate judge – Where proposed appeal lacks merit – Futile to extend the time for filing under r 77.06.2 of Supreme Court (General Civil Procedure) Rules 2015 – Application for leave to appeal refused.

Limitation of Actions Act 1958, s 27; Supreme Court (General Civil Procedure) Rules 2015 rr 64.08, 77.06.2.

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Counsel
Applicant:		In person
Respondent:		Mr John A Tesarsch
Solicitors
Applicant:	--
Respondent:	Carter Newell Lawyers

BEACH JA
LYONS JA:

The applicant, Mr Gregory Hind, seeks an extension of time to file an application for leave to appeal to this Court and, if an extension is granted, leave to appeal from the decision of Niall JA in Hind v Ronsel Investments Pty Ltd (‘Reasons’) in which he refused to allow appeals from two decisions of Daly AsJ.[1] The respondent to the application, Ronsel Investments Pty Ltd (trading as Ronald Segal & Associates), is Mr Hind’s former solicitor. The respondent does not oppose Mr Hind’s application for an extension of time to file an application for leave. However, it does oppose the grant of leave to appeal.
[1]Hind v Ronsel Investments Pty Ltd [2022] VSC 785 (‘Reasons’).
In short, the substance of this proceeding concerns Mr Hind’s allegations that the respondent has acted negligently in two related proceedings in which it represented Mr Hind. The first proceeding concerns a default judgment that was entered against Mr Hind in favour of the Commissioner of Taxation (‘Commissioner’) (‘County Court proceeding’). The second proceeding concerns the respondent’s conduct in a case brought by Mr Hind against another former solicitor, Rigby Cooke Lawyers (‘Rigby Cooke’) (the ‘Rigby Cooke proceeding’).
In summary, the associate judge determined that:
(a)in relation to negligence allegations concerning the County Court proceeding (the ‘County Court allegations’), the respondent had a complete limitations period defence and was entitled to summary judgment (‘limitations judgment’);[2]
(b)in relation to negligence allegations concerning the Rigby Cooke proceeding (the ‘Rigby Cooke allegations’), Mr Hind’s proceeding should be dismissed for want of prosecution (‘want of prosecution judgment’).[3]
[2]Hind v Ronsel Investments Pty Ltd [2020] VSC 428 (‘AsJ Limitations Judgment Reasons’).
[3]Hind v Ronsel Investments Pty Ltd (No 4) [2021] VSC 646 (‘AsJ Want of Prosecution Reasons’).
Mr Hind filed a notice of appeal from each of these judgments (the ‘appeal notices’) out of time. On 15 November 2022, the judge heard Mr Hind’s application for leave to file subpoenas to four witnesses which he submitted were relevant to the County Court allegations and the Rigby Cooke allegations. On that day, the judge refused leave to issue those subpoenas as the evidence of the witnesses was not relevant to the critical issues before the judge on appeal.
Those critical issues, which were clearly set out by the judge during the subpoena application hearing, were whether the associate judge correctly decided:
(a)the limitations judgment, which required consideration of when Mr Hind’s cause of action with respect to the County Court allegations arose and whether giving summary judgment was appropriate on the basis of the limitations defence; and
(b)the want of prosecution judgment, which required consideration of whether there was a want of prosecution, having regard to the associate judge’s conclusion that Mr Hind could not articulate a viable pleading.
Mr Hind’s application to extend the time to file the appeal notices and the two appeals were heard on 24 November 2022. In the Reasons delivered 16 December 2022, the judge refused to grant an extension of time to allow Mr Hind to file the appeal notices.[4] In doing so, he concluded that the associate judge was correct in determining that:
(a)the cause of action against the respondent in relation to the County Court allegations commenced no later than 6 July 2011 (with the result that there was no prospect of overturning the limitations judgment);[5]
(b)the proceeding should be dismissed for want of prosecution given the delays in formulating and prosecuting the claims in relation to the Rigby Cooke allegations and prejudice to the respondent by reason of incurring costs that may not be recoverable and likely delays in getting to trial.[6]
[4]Reasons, [83], [95].
[5]Ibid [78]–[79].
[6]Ibid [93].
The first issue before this Court is Mr Hind’s application pursuant to r 64.08 of the Supreme Court (General Civil Procedure) Rules2015 (the ‘Rules’) to extend the time to file his application for leave to appeal to this Court by 18 days. In support of his extension application, Mr Hind relies upon an affidavit sworn 16 February 2023 and written submissions also dated 16 February 2023. As noted above, the respondent does not oppose this application. In light of the matters raised in his affidavit sworn 16 February 2023, we have determined to grant Mr Hind leave to extend the time to file his application for leave to appeal.
The second issue before this Court is the application for leave to appeal. With respect to Mr Hind, the application for leave to appeal (the ‘application’) and his written case are far from clear. At a high level, we have discerned the following proposed grounds of appeal from the application, his written case and his oral argument:
(1)the judge should have granted Mr Hind an extension of time to file the appeal notices (‘proposed ground 1’);
(2)the judge erred in determining to uphold the limitations judgment (‘proposed ground 2’) on the basis that:
(a)the limitation period was postponed under s 27 of the Limitation of Actions Act1958 (‘Limitations Act’) (the ‘postponement issue’);
(b)Mr Hind’s claims were otherwise not statute barred (the ‘accrual issue’);
(3)the judge erred in not allowing Mr Hind to issue subpoenas to the proposed witnesses and in not having regard to certain affidavit evidence (‘proposed ground 3’); and
(4)the judge erred in determining to uphold the want of prosecution judgment and instead should have ordered the proceeding be stayed (‘proposed ground 4’).
There is one other matter to address at the outset. At the hearing of the application, Mr Hind sought leave of the Court to rely upon his affidavit sworn 6 March 2024 (‘6 March affidavit’) which consists of 16 pages with three exhibits. In oral argument, Mr Hind submitted that the 6 March affidavit was, in substance, the written case he would have liked to present to this Court. Counsel for the respondent objected to admission of the 6 March affidavit as evidence, but was content for Mr Hind to rely upon it by way of submission.
We have read the contents of the 6 March affidavit. Once again, it is far from clear. For the most part, it re-hashes many aspects of Mr Hind’s written case. It also contains a number of new arguments, many based upon inapplicable legal principles. For example, it relies upon the Administrative Decisions (Judicial Review) Act 1977 (Cth) which does not apply to an application for leave to appeal to this Court from a decision of a judge of the Trial Division in the Supreme Court of Victoria.
As with any applicant, the time for Mr Hind to set out the relevant facts and submissions was in his written case, which was filed 18 days out of time.
Nevertheless, we have determined that we should have regard to the 6 March affidavit as a submission. However, in determining this application, we will not have regard to any further issues beyond the proposed grounds identified above, save for one matter. In the 6 March affidavit and more particularly in oral argument, the principal new issue raised by Mr Hind was that he has been denied procedural fairness in two ways: by being prevented from issuing subpoenas to witnesses (the ‘subpoena issue’) and from obtaining discovery from the respondent in about February 2020 (the ‘discovery issue’). In our view, the subpoena issue is related to proposed ground 3, while the discovery issue (which appears related to proposed ground 2) is quite new. As the respondent did not object to these matters being raised and had the opportunity to address them in oral argument, we will address the subpoena issue and the discovery issue.
For the reasons set out below, we would not grant leave to appeal in relation to any of the proposed grounds or any asserted procedural unfairness.

FACTUAL BACKGROUND

The factual background to this application is extensive, ranging from 2005 until 2022 (including the history of this proceeding). In light of the issues raised by Mr Hind, it is appropriate to set out that background in some detail.
The proceedings stem from an unsuccessful property development undertaken by Mr Hind and his mother, Mrs June Hind. In August 2005, Mr Hind and Mrs Hind retained Rigby Cooke Lawyers for advice in relation to the financing and construction of a development to be carried out at a property at 63-65 Roseberry Avenue, Preston (the ‘development’). In late 2005, Mr Hind and Mrs Hind sought advice from Rigby Cooke in relation to a loan from Noble Place Pty Ltd (‘Noble Place loan’) for the purpose of the development.
In July 2006, Mr Hind registered a partnership with Mrs Hind for the purpose of the development. The partnership was unable to pay instalments of the Noble Place loan. In around June 2006 the partnership obtained alternative finance from Owenlaw Mortgage Managers (‘OMM’). OMM took possession of the development in November 2006 and sold 12 units as mortgagee in possession between September 2007 and March 2008.
The development was the catalyst for two further proceedings, which formed the basis of the limitations judgment and the want of prosecution judgment. It is convenient to deal with the facts relevant to each proceeding separately.

County Court proceeding

On 15 June 2010, the Commissioner issued a County Court proceeding against Mr Hind, claiming a GST debt of $377,792.25 in relation to the sale of the units in the development (i.e. the County Court proceeding). Mr Hind did not file a defence in the County Court proceeding. On 6 August 2010, the Commissioner obtained default judgment against him (‘default judgment’).
On 24 August 2010, Mr Hind applied to set aside the default judgment. He retained the respondent to act for him in the County Court proceeding. Mr Ronald Segal was the principal of the respondent. The respondent briefed Mr Will Alstergren of counsel to act for Mr Hind.
On 4 October 2010, Mr Hind retained an accountant, Mr Paul Raye of PR Accountants, for advice in relation to his alleged GST liability. On 12 October 2010, Mr Raye prepared a letter that was addressed to Mr Hind in relation to his potential tax liability (the ‘12 October letter’). In that letter, Mr Raye raised ‘another point which may be helpful in your dealings with the ATO’, namely, Division 105 of A New Tax System (Goods and Services Tax) Act 1999 (Cth) (‘GST Act’). Mr Raye advised that Division 105 ‘governs the treatment of GST where a mortgagee in possession exercises its power of sale’. In substance, Mr Raye suggested that the effect of this division is that the ATO should have audited the mortgagee and applied any penalties for ‘non, incorrect and late lodgement against the mortgagee’ rather than Mr Hind. Mr Raye concluded ‘I will leave this matter with you for possible review by your legal representatives’.
Also on 12 October 2010, Mr Raye emailed the 12 October letter to Mr Segal (of the respondent) and Mr Alstergren. In that email, Mr Raye said ‘I don’t have Greg’s email or phone number, so can you get him to give me a call to discuss?’.
On 13 October 2010, Mr Segal sent the 12 October letter by fax to Mr Hind (‘13 October fax’). The fax cover sheet asked Mr Hind to call Mr Segal once all pages were received and said, ‘herewith papers from Paul Raye’. It appears from the fax cover sheet that the 13 October fax was sent at 1:56 pm.
We pause to note that in an affidavit sworn 19 March 2020, Mr Hind deposed to having only discovered the 12 October letter on or about 23 February 2019 when ‘sorting through all legal documents with the intention of destroying those that were no longer relevant’. In the hearing before the associate judge on 9 April 2020, Mr Hind submitted that ‘my mother and I have never had a fax facility’ and that he ‘did not receive that fax’.
Also on 13 October 2010, Mr Raye sent two emails to Mr Segal and Mr Alstergren. The first email, sent at 3:39 pm, says that ‘[f]ollowing discussions with Greg, I have amended the net GST input credits owing to $88,427’. The second email, sent at 5:46 pm, says that ‘[f]ollowing further discussions with Greg’ certain figures in his list ‘are GST amounts and not the invoiced amounts paid. This has increased his GST credits available to $161,692’. Each email attached an amended spreadsheet. We will refer to these further emails as the ‘13 October emails’.
We pause again to note that there is a version of the 13 October emails, which was relied upon by Mr Hind before the judge, on which handwritten notes were made. The notes are:
P/I—Greg Hind.
Can’t swear yet.
Need Defence.
Will need to see New [increase in] GST credits
11:30 P/O—Will A.
Left urgent message on mobile phone.
We pause to note that, although there was no evidence to establish the identity of the person who made these notes, in the Reasons the judge stated that Mr Segal assumed it was an administrative employee of the respondent.[7]
[7]Ibid [19].
On 14 October 2010, Mr Hind swore an affidavit that was filed in the County Court proceeding to support his application to set aside the default judgment. In this affidavit he deposed to amounts of GST credits to which he claimed to be entitled and exhibited a spreadsheet in a form prepared by Mr Raye.
On 30 November 2010, Mr Raye wrote to Mr Hind in relation to his potential taxation liability, suggesting that amended BAS returns needed to be lodged to claim unclaimed GST of $36,863 (‘30 November letter’). The 30 November letter also addressed Division 105 of the GST Act. In summary, Mr Raye advised that based upon the documents he had received, ‘the mortgagee in possession passed the responsibility of preparing BAS returns back to [Mr Hind] in October 2007, once sales commenced’ with the result that ‘I now doubt that the use of this division is of any significant benefit to you’.
We pause again to note that it is apparent that at least by the 30 November letter, Mr Hind had the 12 October letter in his possession. Notwithstanding the matters set out in [23] above, Mr Hind acknowledged this before the judge in this proceeding.
On 7 April 2011, following communications between Mr Segal, Mr Hind and Mr Alstergren, a judge of the County Court made consent orders providing that Mr Hind’s application to set aside the default judgment was struck out with no order as to costs. Mr Hind reached an agreement with the Commissioner to the effect that the default judgment would not be enforced until three months after the determination of an objection that had been lodged to the Commissioner by Mr Raye on behalf of Mr Hind to the claimed tax debt.
The Commissioner disallowed the above objection on 6 May 2011. Mr Hind did not appeal the Commissioner’s rejection to the Federal Court or seek review in the Administrative Appeals Tribunal (‘AAT’). Instead, he pursued the Rigby Cooke proceeding.

Rigby Cooke proceeding

On 6 December 2010, Mr Hind and Mrs Hind engaged the respondent to issue a proceeding against Rigby Cooke in relation to advice it had allegedly provided them about the financing of the development, being Supreme Court proceeding number SCI 2010 06909 (i.e. the Rigby Cooke proceeding). In that proceeding, Mr Hind and Mrs Hind alleged that Rigby Cooke had negligently failed to advise that interest on the Noble Place loan would not be capitalised, and that this had caused them loss.
In the Rigby Cooke proceeding, Rigby Cooke denied that it had been negligent and asserted that even if it had been, it had not caused Mr Hind loss.
The Rigby Cooke proceeding settled on 20 March 2014 for the sum of $220,000.
In or around May 2013, the Commissioner issued bankruptcy proceedings against Mr Hind in the Federal Circuit Court of Australia, being proceeding MLG 2013 1884 (the ‘bankruptcy proceeding’).
On 22 July 2014, Mr Hind was declared bankrupt.

THE NATURE OF THIS APPLICATION AND THE TEST TO BE APPLIED

First, it is important to note that this is an application for leave to appeal from the decision of the judge, not the associate judge. This is notwithstanding the contents of Mr Hind’s application for leave to appeal, which challenges the reasons for the limitations judgment and the want of prosecution judgment given by the associate judge. That was the subject of the appeal before the judge. However, we acknowledge that the reasons of the associate judge are relevant to this application.
Second, this Court may grant an application for leave to appeal only if it is satisfied that the appeal has a real prospect of success.[8] Relevantly, an applicant may only be granted leave to appeal if this Court is satisfied that the appeal has a real (as opposed to fanciful) prospect of success. Even if the Court is so satisfied, there remains a residual discretion to refuse leave.[9]
[8]Supreme Court Act 1986, s 14C.
[9]See, eg, Qu v Wilks [2023] VSCA 198, [67] (Beach, Kennedy and Walker JJA).
Third, the powers of an appellate court conducting an appeal by way of rehearing are exercisable only if, generally speaking, the applicant can demonstrate that the order that is the subject of the appeal is the result of ‘some legal, factual or discretionary error’.[10] As the plurality put it in Fox v Percy, if, making proper allowance for the advantages of the trial judge, an appellate court concludes that error has been shown, that court is authorised, and obliged, to discharge its appellate duties and give the judgment which ought to have been given at first instance.[11] As to a discretionary error, a discretionary decision ought not be interfered with on appeal unless it is demonstrated that the judge made an error of the kind set out in House v R.[12] Further, we note that an appeal court exercises considerable restraint before intervening with a discretionary decision on a matter of practice or procedure where no questions of general principle are in issue.[13] Relevantly, we consider that proposed ground 1 challenges a discretionary decision of a trial judge relating to a matter of practice or procedure. For the avoidance of doubt, in relation to the other proposed grounds, we have adopted the ‘correctness standard’[14] and also considered whether there was any specific error in the reasoning of the judge.
[10]Allesch v Maunz (2000) 203 CLR 172, 180 [23] (Gaudron, McHugh, Gummow and Hayne JJ).
[11]Fox v Percy (2003) 214 CLR 118, 125 [23], 127–8 [27] (Gleeson CJ, Gummow and Kirby JJ).
[12](1936) 55 CLR 499, 504–505.
[13]Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170, 176–177 (Gibbs CJ, Aickin, Wilson and Brennan JJ) citing Re Will of Gilbert (1946) 46 SR (NSW) 318, 323. See also Hogan v Australian Crime Commission (2010) 240 CLR 651, 665 [34] (French CJ, Gummow, Hayne, Heydon and Kiefel JJ).
[14]Warren v Coombes (1979) 142 CLR 531, 551–552 (Gibbs ACJ, Jacobs and Murphy JJ).

THE GROUNDS OF APPEAL

As set out above, Mr Hind’s proposed grounds of appeal are far from clear. It is convenient to consider each proposed ground of appeal we have identified above together with the relevant parts of the Reasons and, where appropriate, the reasons of the associate judge. We shall first address proposed ground 2 and 4 which relate to the limitations judgment and the want of prosecution judgment, respectively. We shall then address proposed ground 3. Finally, we address proposed ground 1, which relates to the judge’s decision not to grant Mr Hind an extension of time in relation to filing the appeal notices from each of the limitations judgment and the want of prosecution judgment.

Proposed ground 2

By proposed ground 2, Mr Hind contends the judge erred in determining to uphold the limitations judgment on the basis that:
(a)the limitation period was postponed under s 27 of the Limitations Act due to the 12 October letter or the 13 October emails (containing handwritten notes) being concealed from Mr Hind; and/or
(b)that the limitation period did not commence on 6 July 2011 (i.e. when Mr Hind’s right of appeal or review of the Commissioner’s objection decision became impaired).

The limitations judgment and appeal to the judge

On 16 May 2019, Mr Hind issued this proceeding against the respondent alleging negligence in relation to the conduct of the County Court proceeding.
By way of an Amended Statement of Claim dated 5 August 2019 (the ‘ASOC’), Mr Hind made the County Court allegations, claiming that the respondent was negligent by:
(a)failing to defend the County Court proceeding or pursuing any form of defence against the Commissioner; and
(b)failing to advise Mr Hind that he had a ‘creditable’ form of defence under GST legislation.
Mr Hind alleged that, as a consequence, he had been made bankrupt, and his family home had been sold. He claimed relief including damages.
By summons dated 24 February 2020, the respondent applied for summary dismissal of Mr Hind’s claims, on the basis that the claims made in the proceeding were barred by operation of the Limitations Act.
Mr Hind defended the application, relying upon affidavits sworn 19 March and 6 April 2020. His affidavit of 19 March 2020 exhibited a proposed writ and draft statement of claim dated 28 January 2020 relating to the Rigby Cooke allegations and a separate writ and further draft statement of claim dated 19 February 2020 also relating to those allegations.
The summons was listed for hearing on 9 April 2020.
At the hearing, Mr Hind argued that his cause of action commenced no earlier than 22 July 2014, when he was made bankrupt. In this respect, he argued that the respondent had been party to a continuous retainer with him from the time it agreed to act for him in the County Court proceeding until it acted for him in the bankruptcy proceeding.
Mr Hind also contended that the limitation period was postponed by s 27 of the Limitations Act and only commenced when he discovered the 12 October letter while going through his papers in February 2019. As set out at [23] above, Mr Hind contended that he did not receive the 12 October letter on or around 13 October 2010 because he did not have a fax machine.
By reasons delivered on 23 July 2020 (i.e. the limitations judgment), the associate judge determined in favour of the respondent. We pause to note that in oral argument Mr Hind submitted that succeeding in his challenge to this judgment is central to this application.
The associate judge determined when Mr Hind’s cause of action accrued on the basis of established legal principles as summarised by this Court in Bodycorp Repairers Pty Ltd v Holding Redlich (‘Bodycorp’): i.e. a cause of action in negligence accrues when the plaintiff first suffers damage caused by the defendant’s breach of duty.[15] The associate judge found that:
(a)there was no evidence to support Mr Hind’s contention that the commencement of the limitation period should be postponed to 23 February 2019 pursuant to s 27 of the Limitations Act;
(b)it was almost certain that Mr Hind received the 12 October letter on or about 13 October 2010;
(c)Mr Hind’s economic interest in respect of the County Court proceeding was to eliminate or reduce his liability to the Commissioner (i.e. when this interest is affected, loss will be suffered);
(d)by no later than 6 July 2011, being 60 days after the Commissioner’s objection decision (and the expiration of the time period for an appeal to the Federal Court or an application for review to the AAT), the value of Mr Hind’s relevant economic interest was materially impaired; and
(e)the fact that the value of Mr Hind’s economic interest diminished further after 6 July 2011 did not alter the fact that his relevant cause of action against the respondent was complete on 6 July 2011.[16]
[15][2018] VSCA 17, [131] (Whelan, Santamaria JJA and T Forrest AJA).
[16]AsJ Limitations Judgment Reasons, [84]–[116].
On 29 December 2021, Mr Hind filed a notice of appeal with respect to the limitations judgment (‘first notice’). This notice was out of time by at least 70 days.[17]
[17]Reasons, [55].
By email dated 1 November 2022, Mr Hind indicated that he wished to serve subpoenas to give evidence on Mr Raye, Mr Segal, Mr Chris Dzanovski (a real estate agent) and Mr Alstergren. As noted above, on 15 November 2022, the judge refused this application, finding that the proposed evidence was not relevant to the issues the subject of the appeal. We will address this in the context of proposed ground 3.
The application to extend the time for filing the first notice and the appeal with respect to the limitations judgment was heard on 24 November 2022.

The judge’s reasons

In reaching the decision not to extend the time with respect to the first notice, the judge considered the merits of Mr Hind’s proposed appeal from the limitations judgment. We will now address the judge’s findings in relation to the limitations judgment (the postponement issue and the accrual issue) which is the subject of proposed ground 2.
As to the postponement issue, the judge noted that during both the 15 and 24 November 2022 hearings, Mr Hind accepted that by no later than 30 November 2010 he had a copy of the 12 October letter.[18] On this basis, the judge found that Mr Hind was ‘plainly’ aware of the Division 105 issue.[19] As a result, the judge found there was no concealment and that s 27 of the Limitations Act did not apply.[20] We note that before this Court, Mr Hind did not seek to challenge that he had a copy of the 12 October letter by no later than 30 November 2010.
[18]Ibid [42].
[19]Ibid [66].
[20]Ibid [65]–[66].
Further, before the judge, Mr Hind had raised a new argument, namely that s 27(c) of the Limitations Act applied because he had been the victim of a mistake. This contention was rejected by the judge because Mr Hind had not brought the action seeking relief for the consequences of a mistake. Nor could the existing pleadings or facts be ‘shoehorned into such an action’.[21]
[21]Ibid [67].
As to the accrual issue, the judge determined that there was otherwise no prospect of overturning the limitations judgment because the claims the subject of the ASOC were statute barred. In reaching this view, the judge canvassed the applicable legal principles concerning the crystallisation of a cause of action in negligence and found that the associate judge applied the correct principle, namely that the cause of action accrues when the damage is first caused by the defendant’s breach of duty.[22] The damage (and therefore the cause of action) arose when time expired on Mr Hind’s right to apply for either review or appeal of the Commissioner’s rejection of his objection: i.e. 6 July 2011, being 60 days after the Commissioner’s rejection of Mr Hind’s objection (the time period to file either an appeal to the Federal Court or an application for review to the AAT).[23]

The contentions

[22]Ibid [70], [78].

[23]Ibid [79]–[80].

As to the postponement issue, in substance, Mr Hind maintains that the respondent concealed the 12 October letter which contained a possible defence to the County Court proceeding. In this regard, he also relies upon the 13 October emails (containing the handwritten notes). In the alternative, he appears to maintain that there has been a ‘potential legal mistake’ with respect to this issue.
As to the accrual issue, Mr Hind’s written case included submissions to the effect that the associate judge (and the judge on appeal) applied the incorrect legal principles to Mr Hind’s claims in the limitations judgment. In particular, he appears to submit that reliance on Bodycorp — to the effect that the cause of action accrues when the plaintiff first suffers damage cause by the defendant’s breach of duty — was misconceived.
As to the postponement issue, the respondent submits that the judge’s finding at [66] of the Reasons that ‘there was no concealment’ because Mr Hind ‘was plainly aware of the div 105 issue’ was open given Mr Hind’s admission to this effect. Further, the respondent contends that there was no error in the associate judge’s finding that no evidence supported Mr Hind’s contention that the commencement of the applicable limitation period should be postponed to 23 February 2019 pursuant to s 27 of the Limitations Act. The respondent submits that such a finding was supported by various pieces of evidence that went against Mr Hind’s contention, including contemporaneous documents and affidavit material.
As to the accrual issue, the respondent submits, in substance, that the judge and the associate judge identified and applied the correct legal principles, including with respect to Bodycorp.

Consideration

First, in relation to the accrual issue, in our view, the judge and the associate judge were correct in concluding that Mr Hind’s cause of action against the respondent with respect to the County Court allegations accrued no later than 6 July 2011. That was 60 days after the Commissioner’s decision to disallow Mr Hind’s objection, with 60 days being the period for appeal to the Federal Court or an application for review to the AAT. The value of Mr Hind’s economic interest was materially impaired at that time and the fact that it diminished further after that time, as a result of his bankruptcy, did not alter the fact that the cause of action accrued on 6 July 2011.
Further, we can see no error in the application of orthodox legal principles to Mr Hind’s circumstances. For completeness, we consider that reliance on Bodycorp was appropriate: this authority forms part of established legal principle. As a result, the respondent was entitled to summary judgment in respect of this part of the proceeding and there was no error of the judge in upholding the associate judge’s determination to this effect.
Second, as to the postponement issue, Mr Hind’s case before both the associate judge and the judge was that s 27(b) of the Limitations Act applied (and, in the appeal to the judge, that s 27(c) applied). Section 27 relevantly provides:
Postponement of limitation periods in case of fraud or mistake
Where, in the case of any action for which a period of limitation is prescribed by this Act—
(a)the action is based upon the fraud of the defendant or his agent or of any person through whom he claims or his agent; or
(b)the right of action is concealed by the fraud of any such person as aforesaid; or
(c)the action is for relief from the consequences of a mistake—
the period of limitation shall not begin to run until the plaintiff has discovered the fraud or the mistake, as the case may be, or could with reasonable diligence have discovered it […]
In our view, the judge was correct to dispose of Mr Hind’s s 27 argument for the reasons he gave. Significantly, we agree that Mr Hind’s admission to the judge makes clear that the respondent did not conceal any possible defence relating to Division 105 of the GST Act. This is because Mr Hind had access to the document that he contended was concealed from him (or mistakenly not provided to him) by at least 30 November 2010. As the judge noted, Mr Raye was assisting in acting for Mr Hind in the objection process.[24] We would also add that the 13 October emails reveal that Mr Raye and Mr Hind were in frequent communication in and around 12–14 October 2010. On this basis, it would be open to infer that the possibility of a defence under Division 105 was in fact brought to Mr Hind’s attention prior to 30 November 2010 (which the associate judge found was ‘almost certain’). We also agree with the judge that the new ‘mistake’ argument, namely that s 27(c) of the Limitations Act applied because Mr Hind had been the victim of a mistake, must be rejected because Mr Hind had not brought the action seeking relief for the consequences of a mistake.[25]
[24]Ibid [66].
[25]Ibid [67].
Further and in any event, even if s 27 did apply, it would not assist Mr Hind overturning the limitations judgment. The proceeding was issued in May 2019. If the limitation period was postponed to 30 November 2010, Mr Hind’s claims would have nevertheless been statute barred as over six years had passed since that date.
Finally, and to the extent it is relevant, following his admission to the judge that he had seen the 12 October letter prior to February 2019, Mr Hind did not make clear why he did not rely upon the Division 105 issue after 30 November 2010 given the application to set aside the default judgment in the County Court proceeding was not determined until April 2011. There is no suggestion that Mr Hind did not have the ability to discuss this issue at the time with Mr Raye and/or the respondent — or to ask why the 12 October letter was not provided to him earlier. It would appear that this is because, as noted above, in the 30 November letter (which Mr Hind received) Mr Raye said, ‘I now doubt the use of this division is of any significant benefit to you’.
For these reasons, this proposed ground 2 (comprising the accrual issue and the postponement issue) has no real prospect of success and we refuse leave to appeal with respect to it.
As noted above, it appears that the discovery issue may relate to proposed ground 2. With respect, it is difficult to ascertain what the complaint is in relation to the discovery issue. It appears that in his 6 March affidavit, Mr Hind is asserting that:
(a)the respondent did not provide discovery following Mr Hind’s notice for discovery dated 7 February 2020;
(b)the 13 October emails with handwritten annotations were not provided by the respondent until they were exhibited to the unsworn affidavit of Mr Benjamin Hall, the solicitor for the respondent, dated 30 March 2020 in support of the summary judgment application;[26] and
(c)that he had submitted before the associate judge and the judge that if the court were to accept the 13 October emails with notations into evidence:
it should afford the applicant the same privilege for full discoveries, as it drew on a conceived conclusion through just a sequestration of events without the full acknowledgement of other potential discovering documents that could have completely altered any conclusions based on suppositions, that thereby prejudiced the applicant.
[26]The associate judge allowed the respondent to rely upon an unsworn affidavit ‘owing to the restrictions on community movement imposed by reason of the COVID-19 pandemic’.
As we have noted, this is far from clear. Further, we note in this context that there is no suggestion of a ground of appeal in the application which might relate to procedural unfairness of this kind. In any event, we consider that, in light of the central issue for determination in relation to limitations judgment, any further discovery was not and could not be relevant to that issue. This is in light of Mr Hind’s acceptance that he was aware of the 12 October letter by no later than 30 November 2010. That is to say, the nature and extent of any communications between counsel and the respondent and/or Mr Hind were not relevant in light of the fact that he was aware of the 12 October letter by 30 November 2010 and the cause of action first accruing on 6 July 2011. Thus, there can be no prejudice of any kind to Mr Hind by the respondent’s failure to provide discovery. In any event, no such prejudice was made plain to us by Mr Hind.

Proposed ground 4

The substance of proposed ground 4

As noted above, there is a challenge to the findings of the judge relating to his conclusion in respect of the want of prosecution judgment. With respect, the application, the written case and the oral argument was far from clear. In the application, Mr Hind’s proposed ground of appeal in relation to the want of prosecution judgment was in the following terms:
Non presentation of any causation to all third parties associated with the Preston project and their possible attribution of responsibility to the plaintiffs’ financial losses suffered, allowing limitations to become applicable, whereby denying the plaintiffs an opportunity to articulate and pursue their argument for recovery of those losses.
No such argument was run before the judge. The judge dealt with the history of the proposed pleadings in relation to the Rigby Cooke allegations (which is discussed further below). At [92] of the Reasons, the judge records that there was no complaint before him regarding the associate judge’s refusal to allow Mr Hind to file the pleading that was rejected for the reasons given in the want of prosecution judgment: rather, Mr Hind sought an opportunity to file a further amended pleading. Further, at [94] of the Reasons, the judge noted that before him, Mr Hind submitted that the associate judge should have stayed the proceeding for want of prosecution and not dismissed it.
The stay issue was reflected in a different portion of the application which provides:
That the 6th October 2021 summary judgement made by Associate Justice Daly for Want of Prosecution be vacated due to potential legal prejudice against the plaintiff by the defendant for a stay of proceedings.
As a result, as set out above, we have formed the view that proposed ground 4 is that the judge erred in concluding that the associate judge’s decision to dismiss the proceeding for want of prosecution was correct and contending that the judge should have ordered to stay the proceeding.
Before addressing this ground, it is necessary to set out the circumstances leading to the want of prosecution judgment in further detail.

The history of the want of prosecution judgment

The associate judge deferred making orders in relation to the limitations judgment to enable Mr Hind to apply to amend the ASOC to bring any claims he may have against the respondent with respect to the Rigby Cooke allegations. This was because, if he had been required to issue a separate proceeding, the claims relating to the Rigby Cooke allegations may have been statute barred.
Pursuant to the above, on 7 August 2020, Mr Hind issued an application seeking leave to file and serve a proposed second amended statement of claim exhibited to his affidavit filed on that date. On 1 October 2020, the return date of the application, the associate judge did not grant Mr Hind leave to file and serve the proposed form of claim relating to the Rigby Cooke allegations. The associate judge handed down a ruling explaining the reasons for her decision and made orders enabling Mr Hind to file a further proposed amended statement of claim. In doing so, the associate judge concluded that Mr Hind’s proposed second amended statement of claim failed to adequately plead the facts, and contained confusing, vague and in some respects, irrelevant allegations.
On 28 October 2020, Mr Hind served an affidavit exhibiting a revised version of his proposed second amended statement of claim relating to the Rigby Cooke allegations. On 12 November 2020, the associate judge did not grant leave to Mr Hind to file this pleading, and also struck out the claims relating to the County Court allegations. Moreover, in orders made the same day, the associate judge specified what Mr Hind needed to address in his pleading relating to the Rigby Cooke allegations in order for it to be viable.

On 17 February 2021, the associate judge handed down judgment in Hind v Ronsel Investments Pty Ltd (No 2), in which she refused Mr Hind leave to file a further proposed amended pleading.[27] On that occasion, her Honour considered three alternative versions of the pleading, which had each been served on the respondent, including a version prepared by pro bono counsel, Mr Michael Gronow KC.[28] The associate judge found that each of the three versions was defective, giving written reasons and again making observations of what Mr Hind needed to plead.[29] Also on 17 February 2021, the associate judge made further orders enabling him to file a further proposed amended statement of claim.
[27][2021] VSC 42, [55].
[28]Ibid [36].
[29]Ibid [42], [55].
Mr Hind served a further proposed amended statement of claim on 2 March 2021, and a further version on 11 April 2021.
On 1 July 2021, the associate judge handed down judgment in Hind v Ronsel Investments Pty Ltd (No 3): again she did not grant leave to Mr Hind to file and serve his revised pleading.[30] On that occasion, the respondent sought to have the proceeding dismissed for want of prosecution. As a result, the associate judge canvassed the applicable legal principles (which are discussed further below) and determined that although it was ‘finely balanced’ the proceeding should not be dismissed on that occasion.[31] The associate judge made orders enabling Mr Hind to file a further proposed amended statement of claim.
[30][2021] VSC 385, [105].
[31]Ibid [90]–[99].
Mr Hind sought leave to file and serve a revised version of his proposed further amended statement of claim, which he circulated on 17 August 2021 (‘August 2021 pleading’). The respondent opposed such leave. The associate judge referred a request for pro bono assistance to the Victorian Bar Pro Bono Assistance Scheme, but Mr Hind was unable to obtain such assistance.

The want of prosecution judgment and appeal to the judge

On 6 October 2021, the associate judge determined that the August 2021 pleading was defective and made orders dismissing the proceeding for want of prosecution (i.e. the want of prosecution judgment).
The associate judge identified and applied the legal principles concerning whether a proceeding should be dismissed for want of prosecution, including Bishopsgate Insurance Australia Ltd (in liq) v Deloitte Haskins & Sells (‘Bishopsgate’).[32] The associate judge found, in substance, that:
(a)the ‘balance’ shifted on this occasion as the August 2021 pleading ‘suffers more defects’ than previous iterations;
(b)the associate judge had no great confidence that Mr Hind would be able to retain solicitors or counsel to act for him;
(c)there had been an inordinate and inexcusable delay by Mr Hind in prosecuting his claims, which had been exacerbated by the time elapsed since Mr Hind’s entitlement to sue the respondent arose and the likelihood of further delays;
(d)the respondent had suffered prejudice by having to consider and respond to various iterations of the proposed pleading (including incurring legal costs that may not be recoverable);
(e)the fairness of any trial of Mr Hind’s claims regarding the Rigby Cooke allegations had been placed in jeopardy by the delay, and prospects of a fair trial would only deteriorate;
(f)having a properly pleaded statement of claim was vital to the nature of the case: it involved ‘complexities overlaying complexities’. However, the prospects of such a pleading being prepared were ‘slim to non-existent’; and
(g)given her lack of confidence in Mr Hind’s ability to prepare a viable pleading, the respondent should not be required to suffer the cost, inconvenience and other prejudice defending ‘incoherently formulated’ claims made against it.[33]
[32][1999] 3 VR 863.
[33]AsJ Want of Prosecution Reasons, [68]–[80].
Mr Hind filed a notice of appeal on 7 January 2022 against the want of prosecution judgment and orders made 6 October 2021 (‘second notice’). It was out of time by 79 days.[34] The application to extend the time for filing the second notice and the appeal with respect to the want of prosecution judgment was also heard by the judge on 24 November 2022.
[34]Reasons, [84].
Insofar as Mr Hind’s submissions related to the want of prosecution judgment, Mr Hind asserted, in substance, that:
(a)he was hoping to obtain legal advice;
(b)the associate judge erred in finding the advanced age of witnesses was relevant to determining whether the respondent had suffered prejudice by reason of delay; and
(c)a stay of the proceeding would have been more appropriate than dismissal.

The judge’s reasons

In reaching the decision not to extend the time with respect to the second notice, the judge addressed the merits of Mr Hind’s appeal from the want of prosecution judgment. We will now address the judge’s findings in relation to that judgment, which is the subject of proposed ground 4.
As noted above, the judge observed that Mr Hind did not complain of the associate judge’s refusal of leave to file the August 2021 pleading: rather, Mr Hind sought orders setting aside the dismissal and providing him an opportunity to file a further pleading.[35]
[35]Ibid [92].
The judge concluded that the associate judge was correct to dismiss the proceeding for want of prosecution, for the reasons given in the want of prosecution judgment (see above at [85]).[36] Specifically, the judge highlighted:
(a)the ‘inordinate and inexcusable’ delay on Mr Hind’s part: the judge had particular regard to the time that had elapsed since Mr Hind’s entitlement to sue arose, likelihood of further delays, and the fact that the proceedings had not ‘proceeded past first base’;
(b)the prejudice to Mr Hind of the proceedings being dismissed had been heavily reduced, given his failure to produce a viable claim indicated, at best, poor prospects of success;
(c)the respondent had already suffered prejudice by having to consider and respond to various iterations of the proposed pleading in circumstances where its costs may not be recoverable;
(d)the earliest that any trial in this proceeding could commence was 2023, meaning a significant period of time had passed since the relevant events, which would have posed a challenge to the trial in circumstances where much of the dispute related to contested oral conversations; and
(e)the complexity of Mr Hind’s claims demands a properly pleaded statement of claim, which Mr Hind had failed to prepare.[37]
[36]Ibid [93].
[37]Ibid.
The judge also recorded Mr Hind’s submission to the effect that the associate judge should have stayed the proceeding for want of prosecution and not dismissed it. The judge concluded that, for the reasons given, there was no error of the associate judge in dismissing the proceeding.[38]

The contentions

[38]Ibid [94].

Mr Hind submits, in substance, that the judge should not have accepted that in all the circumstances, this was an appropriate occasion to conclude that there had been a want of prosecution or to order a dismissal (as opposed to a stay of proceedings), ‘possibly with a time limit, that would have enabled [Mr Hind] the utmost opportunity for legal assistance whether pro – bono or paid’.
The respondent submits that there is a strong presumption in favour of the correctness of a discretionary decision, and such a decision should be affirmed unless clearly wrong or the result is plainly unreasonable or unjust.[39] The respondent contends that the judge and the associate judge correctly identified and applied the legal principles concerning whether a proceeding should be dismissed for want of prosecution, including Bishopsgate. The respondent relies upon Knörr v CSIRO (Commonwealth Scientific and Industrial Research Organisation), where the Court of Appeal found it was open to Beach JA to have dismissed a proceeding for want of prosecution 11 months after it was commenced, following the plaintiff’s several attempts to produce a viable statement of claim.[40]

Consideration

[39]Dickens (A Pseudonym) v State of New South Wales [2018] NSWCA 222, [13] (Beazley P and Macfarlan JA); House v The King (1936) 55 CLR 499, 504–505.

[40][2014] VSCA 84, [57]–[59] (Neave, Osborn JJA and Sifris AJA).

In our view, the judge was correct to uphold the want of prosecution judgment of the associate judge. This is for the reasons given by the judge summarised at [90] above. Further and in any event, we can see no error in the judge’s decision to uphold the want of prosecution judgment.
At the risk of repetition, we also wish to highlight several matters.
First, it is important to recall that Mr Hind put forward eight proposed amended statements of claim over a one-year period, in relation to a proceeding that was issued in 2019 with respect to events occurring over a decade earlier.
Second, any prejudice to Mr Hind of the proceeding being dismissed is mitigated by the significant assistance he received from the associate judge prior to her Honour handing down the want of prosecution judgment. As noted above, she provided detailed reasons, a ruling and orders describing what Mr Hind’s pleading needed to contain and also made two pro bono referrals. Despite this guidance, a viable pleading was still not capable of being prepared.
Third, we can see no error of the judge in determining that the associate judge was correct to order that the proceedings be dismissed, rather than to order a stay. This is substantially for the reasons given by the associate judge, the judge and the discrete additional points we have raised as to the want of prosecution issue. Further, in our view, such an order would have further prejudiced the respondent, which would have remained subject to the possibility of further applications, accruing legal costs and otherwise expending its resources. This is in circumstances where, in our view, it is very unlikely that Mr Hind will be able to retain legal representation. Without such representation, there is no realistic prospect of a sufficiently pleaded claim being put forward.
As a result, we have formed the view that this proposed ground 4 has no real prospect of success and we refuse leave to appeal with respect to it.

Proposed ground 3

By proposed ground 3, Mr Hind contends that the judge erred in not allowing Mr Hind to issue the subpoenas to proposed witnesses and in not having regard to an affidavit of Mr Raye sworn 12 August 2022 (‘12 August Raye affidavit’) concerning Mr Hind’s possible defence under Division 105 of the GST Act.

The judge’s reasons

As noted above, at the hearing on 15 November 2022, the judge heard Mr Hind’s application to subpoena four witnesses, Mr Raye, Mr Dzanovski, Mr Segal and Mr Alstergren. The judge rejected this application giving ex tempore reasons.
First, the judge noted that the appeal is not a hearing de novo: the task for Mr Hind was to identify an error on the part of the associate judge on the evidence before her. The judge accepted that in some circumstances, new evidence can be admitted on an appeal of this nature.
Second, the judge concluded that it would not be appropriate to issue the subpoenas in this case because the proposed evidence would not bear upon the questions for his determination with respect to the appeal against either the limitations judgment or the want of prosecution judgment. The critical issues with respect to each judgment are set out at [5] above. The judge found that nothing that any of the four witnesses could say would have any bearing upon these issues.
As to the 12 August Raye affidavit, Mr Hind and the respondent made submissions at the 24 November 2022 hearing as to whether this evidence (together with the affidavits of Mr Hind of 30 December 2021 and 10 August 2022) should be admitted into evidence. We note in passing that in the course of argument the judge queried the extent to which the evidence of witnesses like Mr Raye would be capable of bearing upon the critical issues in the appeal to the judge.

The contentions

Mr Hind submits, in substance, that the judge erred by deciding not to allow Mr Hind to issue subpoenas to potential witnesses focusing on Mr Raye and Mr Dzanovski. He submits that the judge did so ‘without any justifiable reason’ other than ‘what he perceived as insufficient probative value … despite the evidence never being tested’. This would appear to relate to his ‘procedural fairness’ contention raised in the 6 March affidavit and his oral argument.
The respondent submits that there is no appealable error in the judge’s decision with respect to the subpoenas. In short, this is because Mr Hind did not disclose any probative value in, or the basis for the admission of, evidence from those persons sought to be issued with subpoenas. Further, the respondent points to the fact that Mr Hind accepted before the judge that he had a copy of the 12 October letter by 30 November 2010 and that there was no concealment.
In his submissions before this Court, Mr Hind also appears to rely upon the 12 August Raye affidavit and to contend that it ought to have been considered by the judge. The respondent submits that the affidavit did not contain any fresh evidence of probative value.

Consideration

In our view, it was appropriate for the judge to reject Mr Hind’s application to subpoena Mr Raye and Mr Dzanovski. Further, in light of the ex tempore oral reasons given by the judge (set out above at [102] and [103]), we can see no error in reaching this conclusion.
As to the limitations judgment, we agree with the judge that the principal issues concerned when the cause of action arose and whether giving a summary judgment on a limitations defence was appropriate. The judge was not satisfied that any of the evidence of the witnesses could bear upon those questions. Mr Hind’s submission in this Court did not provide any reason to doubt the judge’s conclusion. Further, we refer to our comments in relation to the accrual issue and the postponement issue set out above at [63] to [68].
As to the want of prosecution judgment, we agree with the judge that the question for determination was whether by 6 October 2021 there was a want of prosecution having regard to the conclusion reached by the associate judge that Mr Hind had been unable to articulate a viable pleading. Again, the judge found that nothing any of the four witnesses could say would have any bearing upon that question. Mr Hind’s submissions in this Court did not provide any reason to doubt the judge’s conclusion.
As to the 12 August Raye affidavit, as noted above, it was referred to in argument and appeared relevant to the accrual issue and the postponement issue. The judge made no express reference to it in the Reasons. This is the subject of challenge in this Court. However, in our view, there was no need for the judge to refer to the 12 August Raye affidavit in light of its contents. It restates that Mr Raye thought that Division 105 was relevant as set out in the 12 October letter. It sets out the circumstances in which the 12 October letter was sent by Mr Raye to Mr Segal. Mr Raye then deposed that ‘[t]o the best of my recollection, I had no further correspondence with Mr Hind or [the respondent] in relation to the contents of my 12^th October 2010 letter until contacted by Mr Hind sometime in late 2019’. We pause to note that, in light of the detailed chronology set out above, this is clearly incorrect.
In any event, as is evident from this summary of the 12 August Raye affidavit and the principal issues for the judge on appeal in respect of the limitations judgment, we are of the view that the 12 August Raye affidavit did not contain any probative evidence that was capable of bearing upon that central issue. For completeness, we have also read Mr Hind’s affidavits of 30 December 2021 and 10 August 2022 and have formed the same view with respect to them.
As a result, we consider this proposed ground 3 has no real prospect of success and we refuse leave to appeal with respect to it.
For completeness, we do not agree with Mr Hind’s submission that he was denied procedural fairness in relation to the subpoena issue, which is the subject of proposed ground 3. Indeed, Mr Hind was afforded the opportunity to make an application with respect to subpoenaing the witnesses and put forward affidavit evidence and written submissions with respect to his application. He was heard at the hearing before the judge in respect to the application and the application was not granted for the reasons explained above, with which we agree. On this basis, there was no issue of procedural fairness with respect to proposed ground 3.

Proposed ground 1

As noted above, Mr Hind filed two notices of appeal:
(a)the first notice, which was filed 29 December 2021, appealing against the limitations judgment, which was delivered on 23 July 2020; and
(b)the second notice, which was filed 7 January 2022, appealing against the want of prosecution judgment and orders made 6 October 2021.
Pursuant to r 77.06.2 of the Rules an appeal from a judgment or order of an associate judge must be served (and the application must be made) within 14 days after the judgment or order is given or made. However, the Court has the power under r 77.06.2(6) of the Rules to extend the time allowed. In the Reasons, the judge decided not to extend the time for Mr Hind to file the appeal notices.

The judge’s reasons

First, the judge found that the appeal notices were out of time, with the result that Mr Hind needed leave to file them. As to the first notice, there was some uncertainty regarding when the appeal period commenced. The judge proceeded on the most favourable basis to Mr Hind (i.e. 6 October 2021), with the result that the first notice was at least 70 days out of time.[41] With respect to the second notice, the judge found that it was 79 days out of time.[42]
[41]Reasons, [55].
[42]Ibid [84].
Second, the judge found that Mr Hind had not explained his delay in filing the appeal notices. The judge recorded that Mr Hind’s appeal notices claimed he had experienced difficulties ‘interpreting the area of the Supreme Court’ and his attempts to file had been rejected throughout November and December 2021.[43] However, this was not the subject of further evidence.
[43]Ibid [57].
Third, for the reasons set out in relation to proposed ground 2, the judge found that there was no prospect of overturning the limitations judgment, so it would be futile to extend the time for Mr Hind to file the first notice.[44] Likewise, for the reasons set out in relation to proposed ground 4, the judge found that the associate judge correctly decided the want of prosecution judgment and refused Mr Hind’s application for an extension of time to file the second notice on that basis.[45]

The contentions

[44]Ibid [81]–[82].

[45]Ibid [93]–[95].

Mr Hind submits, in substance, that the judge ought to have used his discretion to grant him an extension of time within which to file the appeal notices. Further, he cavils with the judge’s adoption of the associate judge’s reasoning and factual conclusions as set out in the limitations judgment and the want of prosecution judgment.
The respondent submits that the factors to be considered upon an application to extend the time to appeal from a decision of an associate judge are as set out in Spanovic v Carter Holt Harvey Ltd: ‘the length and reasons for delay, prejudice to the respondent and whether the proposed appeal so lacks merit as to be futile’.[46] The respondent contends that the judge considered all these factors and there was no error with respect to those findings.

Consideration

[46][2014] VSCA 240, [4] (Ashley JA, Almond AJA agreeing).

We agree with the respondent’s submissions. As noted above, the first notice and second notice were out of time by 70 and 79 days, respectively. On 20 July 2022, Baker JR made orders requiring Mr Hind to explain the reason for this delay in an affidavit. However, in our view, Mr Hind did not provide a satisfactory explanation for the delay. The appeal notices each assert that Mr Hind had difficulty comprehending court processes and, in particular, the appropriate court to hear the appeal (the Court of Appeal or a judge of the Trial Division) but the examples of the attempts given by Mr Hind to file a notice of appeal all took place after 5 November 2021. However, by this time, the 14-day period had elapsed.

In any event, also as noted above, the judge did not grant the extensions on the basis that the proposed appeals lacked merit. For the reasons set out in relation to proposed ground 2 and 4 we agree that the proposed appeals lacked merit, with the result that granting any extension of time for the appeal notices to be filed would be futile. We can see no error of the judge with respect to this proposed ground, including an error of the kind specified in House v R.
As a result, this proposed ground 1 has no real prospect of success and we refuse leave to appeal with respect to it.

Procedural fairness

Finally, as noted above, at the hearing of this application Mr Hind asserted that he was denied procedural fairness in two ways. We have addressed the discovery issue and the subpoena issue in proposed ground 2 and 3 respectively.
For completeness, we wish to record that, having reviewed the materials, we can see no denial of procedural fairness to Mr Hind at all. As to the limitations judgment, this decision was primarily based on legal analysis. Following the hearing of the respondent’s summons on 9 April 2020, the associate judge provided Mr Hind the opportunity to respond to the respondent’s oral and written argument by way of further written submissions. This was to provide him with time to review the submissions in detail and to consider the authorities and legislation.
In relation to the want of prosecution judgment, as we set out above, Mr Hind put forward eight proposed amended statements of claim in the period between 7 August 2020 and 17 August 2021 concerning the Rigby Cooke allegations. Further, the associate judge gave him more than adequate opportunity to replead his claims, assisted with the content of the pleadings and made two pro bono referrals.
As a result, leave to appeal must be refused.

[2024] VSCA 53

28 March 2024