Kacinskas v McMahon

[2011] VSC 458

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE
COMMON LAW DIVISION

PRACTICE COURT

No. 3483 of 2011

ALGIMANTAS KACINSKAS	Applicant
v
JOHN McMAHON OF PJ & T MOTORS	Respondent

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JUDGE:	OSBORN J
WHERE HELD:	Melbourne
DATE OF HEARING:	9 September 2011
DATE OF JUDGMENT:	9 September 2011
CASE MAY BE CITED AS:	Kacinskas v McMahon
MEDIUM NEUTRAL CITATION:	[2011] VSC 458

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APPEAL FROM ASSOCIATE JUSTICE – Appeal out of time – Underlying application itself out of time – No adequate explanation of delays – Public interest in finalisation of VCAT decisions concerning claims of limited quantum – Inadequate documentation – No arguable question of law identified – VCAT decision not attended by material doubt – Leave requirements intended to protect both prospective appellants and respondents – Leave refused – Victorian Civil and Administrative Tribunal Act 1998 s 148.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	In person
For the Respondent	No appearance

HIS HONOUR:

1. In this matter, the applicant seeks to appeal the refusal by Associate Justice Mukhtar of an application for leave to appeal from a decision of the Victorian Civil and Administrative Tribunal (‘VCAT’).  Associate Justice Mukhtar's decision was made on Wednesday 27 July 2011 and the present appeal was filed on Friday 26 August 2011.

1. Rule 77.06 of the Supreme Court (General Civil Procedure) Rules 2005 provides that appeals such as the present must be brought within five days.  The applicant says he thought he had 28 days to appeal.  I do not accept this justifies an extension of time for appeal from the order of Associate Justice Mukhtar for a series of reasons.

1. First, the applicant did not file the present notice of appeal within 28 days as he says he believed he should have. Secondly, the application before Associate Justice Mukhtar itself involved an application to extend time pursuant to s 148 of the Victorian Civil and Administrative Tribunal Act 1998 (‘the VCAT Act’). It related to a decision of VCAT made on 13 December 2010. The proceeding was not instituted until 29 June 2011, more than six months later. This is more than five months after the time fixed for appeal by s 148 of the VCAT Act.

1. Thirdly, the proposed appeal relates to a dispute over the adequacy of repairs to a motor vehicle undertaken in August 2009 for the sum of $4,200.  Mr Kacinskas has told me this morning that in consequence of the inadequacy of those repairs, the motor vehicle has ultimately been left sitting in a paddock and it is now worth only $2,000 instead of $30,000 as would have been the case if the repairs were properly done.

1. It is the clear intention of the VCAT Act to provide simple and speedy resolution of disputes such as that which Mr Kacinskas has had with Mr McMahon's company over the repairs to the motor vehicle. There is a substantial public interest in achieving finality in respect of this sort of dispute in accordance with the scheme of the VCAT Act.

1. Fourthly, a six month delay in seeking to institute an appeal to this court is a very substantial delay in terms of the scheme of the VCAT Act when viewed in terms of this public interest and the manifest intention of the VCAT Act that such disputes be sorted out speedily.

1. Fifthly, there is no good reason for the underlying delay in making substantive application to this Court.  The affidavit in support, which Mr Kacinskas has filed, simply asserts that he had difficulty in obtaining legal advice from a series of sources and in sorting out his procedural rights and obligations.  He ultimately says he was caught up in red tape.  I do not accept that this is a satisfactory explanation for a delay of the sort which is in issue.  If a litigant wishes to invoke the jurisdiction of this Court, then the litigant must satisfy the procedural obligations which the relevant legislation imposes.  The applicant has failed to do this.

1. Sixthly, the material lodged in support of the merits of the application for leave to appeal is manifestly deficient.  It does not exhibit the claim that was made to VCAT or the points of defence lodged on behalf of the repairer.  It does not exhibit in proper form the tribunal's determination.  It does not produce a transcript of the hearing or purport to set out the evidence that was called before the tribunal.  It does not produce copies of the documentation which Mr Kacinskas has told me this morning was placed before the tribunal.

1. I should add that insofar as the transcript is concerned, Mr Kacinskas says that he has three versions of the transcript yet he has not sought to place any of them before the Court.

1. In substance, his application is based upon assertion and not upon the fundamental documentary evidence which is necessary to found the proper grant of a leave to appeal. 

1. Seventhly, it is apparent the Tribunal was not persuaded of the applicant's case on its facts.  It is inherently difficult to establish that, as a matter of law, a tribunal must necessarily have been persuaded to reach a conclusion which it did not.  The applicant's affidavit of 11 July 2011 sets out a series of evidentiary arguments relating to the Member's conclusions.  That affidavit does not persuade me that the Member's decision is attended by any material doubt as to its correctness as a matter of law.  This is not to say that the Member may not have erred in his decision on the facts but Parliament has vested in the Tribunal the right to makes decisions on the facts.  There is no appeal on questions of fact to this court.

1. Mr Kacinskas, as I understand it, contends that the repairer did not do tasks he was retained to do, including a compression test, and further failed to perform other work properly.  As I have said, it is apparent that when these complaints were made to VCAT, Mr Kacinskas was unable to persuade the Tribunal of the merits of these complaints.

1. Again, as I have said, the evidence before VCAT, including relevant documentation, is not before me.  There is no basis for concluding that it is arguable that it was not open to VCAT to fail to be persuaded by that evidence.  There is no basis for doubting that it has done other than decide the matter on the evidence as it saw it.

1. Eighthly, Mr Kacinskas today asserted that he was not, at the hearing before VCAT, able to fairly use photographs which bore on the case.  This allegation is not supported by his affidavit nor can it be evaluated in the absence of a transcript.  Mr Kacinskas indicates he does have three versions of the transcript, as I have said, but he says that those transcripts are inaccurate.  No transcript has been placed before the Court.

1. I am not persuaded that the Member arguably denied Mr Kacinskas proper use of the photographs.  It is apparent that the Member received the photographs in evidence and it seems to me that the use that was made of them is, on the face of it, a question of fact not of law.

1. Mr Kacinskas made further broad allegations this morning that he did not get a fair go before VCAT.  I am not persuaded that they are in any way substantiated or are seriously arguable.

1. In summary, Mr Kacinskas has not identified an arguable question of law as the basis for his proposed appeal.[1]

   [1]Secretary to the Department of Premier and Cabinet v Hulls [1999] 3 VR 331; Myers v Medical Practitioners Board of Victoria (2007) 18 VR 48.

1. In my view, VCAT’s decision is not attended by any material doubt as to its correctness as a matter of law.

1. Mr Kacinskas further maintained that Associate Justice Mukhtar demonstrated bias in the way he treated Mr Kacinskas on the application for leave to appeal.  There is no affidavit evidence verifying these serious allegations but the appeal to me is, in any event, an appeal by way of rehearing.  What happened before Associate Justice Mukhtar procedurally is essentially irrelevant for the purposes of my decision.

1. Nevertheless, I must say for the sake of completeness that nothing that has been said this morning suggests to me that anything recorded by Associate Justice Mukhtar under the heading 'Other matters' in his Order of 27 July 2011, discloses error on his part:

1As both parties are not legally represented, and the documentation is not satisfactory, the Court has had to discern for itself (from the materials and some questioning) what the case in the Tribunal was about, and whether there is a question of law.  The reasons of the VCAT Member, which are embodied in the orders, are not elaborate but that may be attributable to the way the case was conducted or the Member’s view that the elements of the case required no more.

2The repairs to the Plaintiff’s vehicle (a campervan) were done in August 2009 for $4,200.00 in order to obtain a roadworthy certificate.  The problems with the vehicle occurred in may 2010.  The VCAT application was lodged in VCAT in November 2010.  The VCAT hearing occurred, and was decided on 13 December 2010.  A covering letter from VCAT to the Plaintiff dated 16 December 2010 informed him of his appeal rights and the 28 day time limit.

3The originating motion was filed on 6 July 2011, well outside the time limit. The Plaintiff’s affidavit of 11 July 2011 does not show a reasonable explanation for the delay. He says “Basically it was a case of red tape and people’s lack of knowledge of the law…” This is unacceptable and it is not demonstrated. It seems his attempts to obtain legal advice were not productive because a question of law could not be discerned. Accordingly, there is no basis for the Court to properly exercise its discretion under s. 148(5) of the Act to extend time.

4In any event, the Court cannot for itself discern a question of law.  The reasons suggest the Member preferred the Defendant’s evidence to show that the engine problems (loss of oil) were not due to the Defendant’s works. The question of law as perceived by the Plaintiff was a denial of natural justice.  He says the case came on too quickly, or with not much notice and he did not have the chance to obtain the evidence of a diesel mechanic. (The Plaintiff is a motor mechanic and maintenance fitter.  He has pulled apart the motor after the problems occurred).  He did not ask for an adjournment, and it has not been shown, for present purposes that the VCAT processes somehow deprived him of the opportunity to fairly present his case.  The tribunal seeks to hear cases quickly and with minimum expense, and with informality.  In all, the Plaintiff is really seeking a merits review.

5Accordingly, this Court would refuse leave to appeal out of time.  And, in any event, there is no question of law shown.

1. Lastly, it is appropriate to observe that an appeal to this court is attended by the probability that an unsuccessful appellant will pay substantial costs.  The rules which govern such appeals are intended, in part, to protect persons aggrieved by decisions on the facts from exposing themselves to the risks of costs in circumstances where they have no real prospect of establishing that the tribunal erred in law.  In my view this is such a case.

1. It is my judgment that refusal of Mr Kacinskas's application is for his own benefit as well as those he seeks to further pursue.  He will have to accept that the system Parliament has established may be regarded as a good one for cases of this type but nevertheless may not result in perfect outcomes on the facts from the perspective of individual litigants.

1. Accordingly, the application is dismissed.